No entitlement of self-employed mothers to operating allowances for maternity benefits; no prohibited sex discrimination

Facts

The complainant A. is affiliated as a self-employed lawyer with the Compensation Fund of the Canton of Zurich. In February 2018 she gave birth and in June 2018 she applied for maternity benefits and an operating allowance of CHF 67.- per day.

The Compensation Fund paid the maternity benefits at the maximum amount of CHF 19'208.- (CHF 196.- x 98), less AHV/IV/EO contributions. By decision of 20 July 2018 it denied an entitlement to operating allowances and upheld this in its objection decision of 12 September 2018.

The Social Insurance Court of the Canton of Zurich dismissed the appeal by decision of 23 September 2019.

By way of a public law appeal, the complainant requests that the cantonal decision be set aside and that the competent authority be instructed to pay her an operating allowance within the framework of the maternity benefits. In the alternative, it should be established that the non-payment violates Art. 8 para. 3 Cst.

Subject matter of the dispute: Whether the cantonal court correctly denied an entitlement to an operating allowance during maternity (free review of the legal question). The matters to be examined are in particular the wording and intent of the legislator (Art. 8 para. 1 in conjunction with Art. 16e para. 2 LECA), discrimination on the basis of sex under Art. 8 in conjunction with Art. 14 ECHR, and the review of constitutionality under Art. 190 Cst.

Considerations

The wording of Art. 8 para. 1 in conjunction with Art. 16e para. 2 LECA contains no entitlement to operating allowances for maternity benefits. According to the clearly documented materials, the legislator deliberately did not intend to create such an entitlement. An interpretation consistent with the Constitution that deviates from this would exceed the permissible scope.

Discrimination on the basis of sex under Art. 14 in conjunction with Art. 8 ECHR presupposes comparable circumstances. It is true that the LECA regulates both the entitlement during service (Art. 1a ff. LECA) and during maternity (Art. 16b ff. LECA). However, the joint regulation in the same statute alone does not establish comparability. The entitlements are linked to fundamentally different life circumstances, and only maternity falls within the scope of protection of Art. 8 ECHR. The Constitution also distinguishes between the appropriate replacement of lost earnings during military and substitute service (Art. 59 para. 4 Cst.) and maternity insurance (Art. 116 para. 3 Cst.). The materials on the introduction of maternity insurance further show that the regulation was enacted within the existing LECA primarily for financial and administrative reasons, and not on the basis of a unified purpose.

Decisive is that maternity insurance is linked to biological motherhood (childbirth, recovery and breastfeeding period) and not to social parenthood or caregiving responsibilities. It thus differs from parental leave. Since the insured risk can only materialise for women, a discrimination on the basis of sex is in principle ruled out. Men are not discriminated against because no comparable circumstance arises for them, and the beneficiary women cannot derive a legal discrimination from a possibly different design compared with other social insurance schemes.

Where comparable circumstances are absent, Art. 14 in conjunction with Art. 8 ECHR does not apply. The lower coverage of self-employed mothers compared with…