SOME OF THE PROVISIONS OF THE LAW INSTITUTING THE MATERNITY LEAVE WERE UNCONSTITUTIONAL , ON THE GROUND THAT THEY INFRINGED THE RULE OF THE EQUALITY OF MEN AND WOMEN BEFORE THE LAW , ENSHRINED IN ARTICLE 3 ( 2 ) AND ( 3 ) OF THE GRUNDGESETZ ( BASIC LAW ).
FIRST QUESTION ( SCOPE AND LIMITS OF THE PRINCIPLE OF EQUAL TREATMENT )
8 IT IS APPROPRIATE FIRST OF ALL TO SET OUT THE LEGISLATIVE PROVISIONS ON MATERNITY LEAVE WHICH FORM THE SUBJECT-MATTER OF THE PROCEEDINGS PENDING BEFORE THE LANDESSOZIALGERICHT .
9 UNDER PARAGRAPH 6 ( 1 ) OF THE MUTTERSCHUTZGESETZ , WOMEN MAY NOT BE EMPLOYED DURING THE EIGHT WEEKS WHICH FOLLOW CHILDBIRTH . ACCORDING TO PARAGRAPH 8A OF THAT LAW , MOTHERS ARE ENTITLED TO MATERNITY LEAVE FROM THE END OF THE PROTECTIVE PERIOD PROVIDED FOR BY PARAGRAPH 6 ( 1 ) UNTIL THE DAY ON WHICH THE CHILD ATTAINS THE AGE OF SIX MONTHS . THE LEAVE MUST BE CLAIMED BY THE MOTHER AT LEAST FOUR WEEKS PRIOR TO THE EXPIRY OF THE PROTECTIVE PERIOD AND IS SUBJECT TO THE CONDITION THAT THE MOTHER MUST HAVE HELD EMPLOYMENT FOR A PERIOD OF , GENERALLY SPEAKING , NINE MONTHS BEFORE THE BIRTH . IF THE CHILD DIES DURING THE PERIOD OF LEAVE , THE LEAVE IS , AS A GENERAL RULE , TERMINATED THREE WEEKS AFTER THE DEATH . UNDER PARAGRAPH 9A , THE EMPLOYER IS FORBIDDEN TO TERMINATE THE EMPLOYMENT CONTRACT DURING THE MATERNITY LEAVE AND FOR A PERIOD OF TWO MONTHS THEREAFTER . UNDER PARAGRAPH 13 OF THE LAW , THE MOTHER RECEIVES AN ALLOWANCE FROM THE STATE WHICH IS EQUAL TO HER EARNINGS , BUT SUBJECT TO AN UPPER LIMIT OF DM 25 PER DAY , ACCORDING TO THE PROVISIONS IN FORCE AT THE MATERIAL TIME .
10 THE PLAINTIFF CLAIMS , ESSENTIALLY , THAT THE MAIN OBJECT OF THE DISPUTED LEGISLATIVE PROVISIONS , IN CONTRAST WITH THE PROTECTIVE PERIOD PROVIDED FOR BY PARAGRAPH 6 , IS NOT TO GIVE SOCIAL PROTECTION TO THE MOTHER ON BIOLOGICAL AND MEDICAL GROUNDS BUT RATHER TO PROTECT THE CHILD . THE PLAINTIFF DRAWS THAT CONCLUSION , ON THE ONE HAND , FROM THE TRAVAUX PREPARATOIRES RELATING TO THE LAW INTRODUCING MATERNITY LEAVE AND , ON THE OTHER HAND , FROM CERTAIN OBJECTIVE CHARACTERISTICS OF THE LAW . HE DRAWS PARTICULAR ATTENTION TO THREE CHARACTERISTICS :
( I ) THE FACT THAT THE LEAVE IS WITHDRAWN IN THE EVENT OF THE CHILD ' S DEATH , WHICH DEMONSTRATES THAT THE LEAVE WAS CREATED IN THE INTERESTS OF THE CHILD AND NOT OF THE MOTHER ;
( II)THE OPTIONAL NATURE OF THE LEAVE , WHICH MEANS THAT IT CANNOT BE SAID TO HAVE BEEN INTRODUCED TO MEET IMPERATIVE BIOLOGICAL OR MEDICAL NEEDS ;
( III)LASTLY , THE REQUIREMENT THAT THE WOMAN SHOULD HAVE BEEN EMPLOYED FOR A MINIMUM PERIOD PRIOR TO CHILDBIRTH ; THIS INDICATES THAT IT WAS NOT CONSIDERED NECESSARY TO GRANT THE LEAVE IN THE INTERESTS OF