29 April 2022
Undergoing fertility treatment can be a challenging exercise and it can create all sorts of practical and legal difficulties for workers. This is because the period when workers are undergoing fertility treatment (but not yet pregnant) is not adequately catered for in law. Instead, legislation giving workers’ legal rights and protections is focused around being pregnant and then having a baby. This can leave workers undergoing fertility treatment in difficult situations. As a result, law reform is needed in the UK and more needs to be done to support those undergoing fertility treatment in the workplace.
Am I legally entitled to time off work for fertility treatment?
There is currently no legal entitlement to time off work (paid or unpaid) to undergo fertility treatment. Legal rights to time off work only start upon pregnancy, although case law says a woman is deemed to be pregnant upon embryo transfer until otherwise confirmed (e.g. following a negative pregnancy test result two weeks later).
Whilst employers should treat workers’ fertility treatment appointments like any other medical appointment, in practice this can be problematic. Fertility treatment can involve multiple appointments and these can often be at different times and at short notice. This can make it difficult for workers to plan ahead for fertility treatment and effectively manage time off work. It can leave workers struggling to get to fertility clinic appointments, using up annual leave and having to call in sick to get time off work.
Should I tell my employer I am undergoing fertility treatment?
It can be difficult and stressful for workers to discuss their fertility treatment with their employers because they can be worried that they might then be treated less favourably in the workplace (e.g. given less interesting and fulfilling work or put at greater risk of job loss). Workers can also be concerned that they will be put on the “parent track” by their employers, watching colleagues get ahead of them in the workplace and enjoy better pay.
Whilst some employers have introduced progressive fertility policies, many employers still do not have a clear and effective workplace policy to support workers undergoing fertility treatment and assisted conception. This can create added stress and uncertainty for workers at a time when they are already having to deal with the physical, emotional and financial strains associated with fertility treatment.
Do I have any legal rights if I am discriminated against for undergoing fertility treatment?
There is currently no legal protection for workers undergoing IVF treatment (prior to embryo transfer or conception) under the Equality Act 2010. Infertility is not a disability under the Equality Act. Workers need to be pregnant to secure protected characteristics under the Equality Act 2010.
Under the Equality Act 2010, it is unlawful for an employer to discriminate by treating a woman unfavourably because of her pregnancy or a pregnancy-related illness during the protected period which runs from the beginning of her pregnancy until the end of maternity leave.
If a female worker loses her job or is disadvantaged because she is undergoing fertility treatment but is not yet pregnant, she will not have a claim for pregnancy and maternity discrimination under the Equality Act 2010. However, she may still have a sex discrimination claim if she was treated less favourably than a man would have been treated.
What can be done to better protect workers undergoing fertility treatment?
Firstly, law reform is needed in the UK to bring forward legal protections to cover workers from the point at which they start fertility treatment (e.g. this could be evidenced by way of written certification by a licensed medical professional). This would then afford workers clearly defined rights to time off work pre-conception for fertility treatment.
Secondly, it would be beneficial to have a Ministry for Fertility within government and a dedicated Minister for Fertility to provide unified future direction for the fertility sector. This would help develop new integrated national fertility policy and political strategy. This would help combat our growing fertility problem in the UK and better advocate on a range of fertility issues. It would also help create an all-inclusive policy and strategy that encompasses fertility issues from pre-conception through to pregnancy and birth, as well as individual fertility and genetic legacy in the UK.
Thirdly, there should be legal requirements for employers to have a workplace fertility policy. This should include guidance on rights to time off work for treatment and miscarriage, flexible working, access to HR support and counselling on a confidential basis and any financial contributions towards the costs of treatment (if available).
These steps would help to improve workplace culture for workers looking to build a family though fertility treatment.
Specialist fertility law advice
Specialist fertility and family law advice helps navigate fertility treatment and family building outcomes. It can create a bespoke family building legal and practical action plan to help preserve and maximise individual fertility, understand options and make better informed decisions about conception, family creation, biological identity and legal rights for fertility patients, parents, children and families. It also helps effectively navigate many complex fertility and family law issues, including:
- Legal issues and options where women face rapidly declining age-related fertility and loss of opportunity for conception (e.g. fertility preservation and maximisation, management of existing personal relationships and implications of using donor gametes).
- Difficulties with storage and use of frozen eggs, sperm and embryos in fertility treatment in the UK.
- Issues associated with import of frozen gametes and embryos into the UK for use in fertility treatment and surrogacy (e.g. due to anonymous and commercially obtained gametes and embryos which engage UK public policy restrictions).
- Issues associated with the export of frozen gametes and embryos abroad for use in fertility treatment and surrogacy (e.g. lack of consent and storage term difficulties).
- Acquisition of legal parentage following a domestic or international surrogacy arrangement.
- Acquisition of legal parentage following a known donor arrangement.
- Acquisition of legal parentage following a co-parenting arrangement.
- An application to bring or defend a Declaration of Parentage (e.g. following a direct-to-consumer DNA test or to re-register a birth certificate).
- An application to bring or defend a step-parent adoption order.
- An application for an order to recognise a foreign adoption under English common law.
- Unexpected death of a loved-one and related issues associated with posthumous storage and use of eggs, sperm and embryos in fertility treatment (e.g. due to an accident or illness).
- Care and upbringing of children following a dispute with an ex-partner, parent, donor or surrogate.
- Legal parentage disputes with an ex-partner, donor, co-parent, step-parent, surrogate.
- Legal parentage disputes with a UK fertility clinic (e.g. problems and omissions with HFEA consent forms).
Need a fertility lawyer or a family lawyer? If you would like to discuss your situation or you require specialist fertility and family law advice and assistance contact Louisa Ghevaert by email louisa@louisaghevaertassociates.co.uk or by telephone +44 (0)20 7965 8399.
