maart/april 2001 de moederschapsideologie van het ... - Nemesis

erhood. The concept of ideology, and its revelation by
analysis and examination of legislation and jurisprudence,
presumes the existence of hidden assumptions
which inform decision-makers; of unspoken and unwritten
norms which underpin society and therefore
impact on the law-making process. Furthermore, feminist
legal theory has demonstrated that gender neutral
laws and judgments are often based on a masculine
norm of society, with adverse implications for many
women, such that it is essential to go beyond the mere
text of law to reveal its possible alternative meanings.
In this light, feminist analyses of law, and in particular
the development of concepts such as the ideology of
motherhood, seek to look beyond the mere text of legislation
and judgments, in order to evaluate the bases
on which such laws are adopted and interpreted. In this
light, a number of responses can be made to Monster's
specific claims.
First, it is not evident to me that an examination of the
preparatory documents of the Equal Treatment Directive
advances our discussion. Although the background
to the adoption of the Directive is important, it
does not of itself settle the debate. First, the legislation
was adopted many years ago, and since that time there
have been considerable changes in the social context of
the legislation. Secondly, it seems difficult to declare
defmitively the aim of the legislation in view of the
large number of states and institutions involved in the
Community legislative process. For these reasons,
even were it to be possible to discern what the original
aims of the legislation were, this does not preclude my
argument that the 'protection of women' principle is
based on an outmoded and paternalistic approach to
women and parenting.
In a similar vein, Monster argues that 'no value' can be
attached to the Court' s repetition of its declaration of
the importance of 'protecting the special relationship
between a woman and her child'. Monster argues that
the statement was not central to the judgments cited, it
did not 'play a part', and therefore cannot be used as
evidence of the existence of a dominant ideology of
motherhood. On the contrary, I would suggest that this
declaration of the Court did, and continues to, constitute
a significant element of the Court' s jurisprudence.
First, the aim of 'protecting the special relationship'
was employed in order to justify the granting of a period
of extended maternity leave to women only. 2 This
period of leave was withdrawn in the event of the death
of the child and it was therefore argued that it was in
fact leave for childcare purposes, rather than in respect
of the mother's health. Therefore, if the leave were to
be granted to women only, there had to be some further
reason, other than health grounds, for allowing that
leave to be granted to women only. Thus, the Court argued
that the leave was essential in order to protect the
'special relationship between a woman and her child'.
This policy aim was central to the decision in Hofmann.
In the later pregnancy cases, such as Webb v EMO,
Brown etc, the 'special relationship' was given as one
2. Case 184/83 Hofmann [1984] ECR 3047.
THE IDEOLOGY OF MOTHERHOOD REVISITED CLARE MCGLÏNN
of the general justifications for maternity leave and for
the 'special protection' of pregnancy. Although these
cases did not involve the issue of childcare leave as in
Hofmann, the repetition of the statement remains important.
In seeking to understand the basis for the
Court' s jurisprudence, and in examining whether there
is a particular ideology underpinning the Court' s judgments,
it is in my view important to examine all aspects
of decisions, including obiter dicta, and not just the ratio.
Therefore, the mere fact that the Court continued to
refer to the 'special relationship', even where not part
of the ratio, is significant as the Court clearly considers
it necessary to reiterate this statement.
Central to feminist legal scholarship is
the reality that, for most women, the
public and the private spheres cannot be
easily separated
Finally, I wish to challenge Monster's claim that the
Equal Treatment Directive does not affect the 'organisation
of family life', therefore agreeing with the statement
to that effect given by the Court in Hofmann. For
me, central to feminist legal scholarship is the reality
that, for most women, the public and the private
spheres cannot be easily separated. By this I mean that
it is impossible to talk about equality in the public
sphere of the paid workforce, without explicitly or implicitly
bringing the private sphere into the debate.
Thus, the Equal Treatment Directive, with its aim to
ensure equality of access to work as well as in employment,
necessarily and unavoidably concerns the private
sphere and the organisation of families. Equal access
to paid employment cannot be ensured unless
there is greater sharing of care work and other unpaid
work. Equality within the workplace cannot possibly
be achieved unless there is change in families. The
worlds of paid employment and family life are inextricably
linked such that it is disingenuous to suggest a
separation. In this light, where the Court states, with
Monster's agreement, that the Directive does not relate
to the 'organisation of family life', it is deliberately
curtailing the scope of the Directive and limiting its potential
to achieve its aims. The Court chooses to legitimate
and ensure the continuation of the status quo.
This leads me to a similar argument made by Monster
in relation to the case of HUI and Stapleton. This case
involved an equal pay claim by a number of women
jobsharers who claimed that their pay per hour was less
compared with full time workers. Monster states that
this case 'does not concern itself with the organisation
of family life' and it was, therefore, inappropriate for
me to consider this case in detail in the context of my
discussion regarding the dominant ideology of motherhood.
Again, I disagree fundamentally. A case such as
HUI and Stapleton, as with many indirect discrimination
cases, is quintessentially about the organisation of
family life. These are cases where women commonly
work part-time, or jobshare or have some other form of
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