Undergoing fertility treatment can be a time-consuming, stressful and lengthy process. It can also be a legal minefield for fertility patients, prospective parents and families in the UK. At present, legislation giving workers’ legal rights and protections is structured around being pregnant and then going on to have a baby. This is problematic for fertility patients because the period when they are undergoing treatment (but not yet pregnant) is not adequately catered for in law. This can leave workers undergoing fertility treatment in difficult situations. As a result, law reform is badly needed in the UK and much more needs to be done to support those undergoing fertility treatment in the workplace.
Do I have a legal right 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 your employer should treat your fertility treatment appointments like any other medical appointment, in reality this can be problematic. Fertility treatment can involve multiple appointments for assessment, tests and scans, procedures and follow-ups and these can often be required at short notice and at different times. This can make it difficult for workers to plan fertility treatment appointments in advance and effectively manage time off work. It can leave workers struggling to accommodate fertility treatment, 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 hard for workers to discuss their fertility treatment with their employers for fear they will be treated less favourably in the workplace (e.g. given less interesting work or put at greater risk of job loss). Workers can also be fearful that they will be put on the so-called “mummy or parent track” by their employers, watching colleagues without children or childcare commitments forge ahead of them in their careers and benefit from higher earnings.
Whilst some employers have introduced progressive fertility policies, many employers still do not have a clear workplace policy to support workers undergoing fertility treatment and assisted conception. This can create added anxiety and uncertainty for workers at a time when they are already having to cope 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 section 18 of 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 to 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, they will not have a claim for pregnancy and maternity discrimination under the Equality Act 2010. However, they may still have a sex discrimination claim if they were treated less favourably than a man would have been treated.
What measures are needed 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. which could be evidenced by way of written certification by a licensed medical professional). This would then afford workers’ defined rights to time off work pre-conception for fertility treatment.
Secondly, it would be beneficial to have a Ministry for Fertility within the government and a dedicated Minister for Fertility to provide a unified future direction for the fertility sector. This would help develop a new integrated national fertility policy and political strategy. Plus, it would help combat our growing fertility problem in the UK and better advocate for 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, it should be a legal requirement 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 toward the costs of treatment (if available). This would all help to improve workplace culture for workers looking to build a family through fertility treatment.
Specialist fertility law advice
Specialist fertility and family law advice help navigate fertility treatment and family building outcomes. It can create a bespoke family building a 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 legacy and legal outcomes for parents, children and families.
If you would like to discuss your situation or require specialist fertility, surrogacy and family law advice, please contact me via my bloss profile.
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