The loss of a pregnancy can be devastating; not just for the pregnant person, but for their partners and families too. It can also be difficult and distressing to navigate the associated medical and physical, emotional and legal issues, particularly for those in work.
What is a miscarriage and what are its causes and symptoms?
A miscarriage is as a loss of pregnancy during the first 23 weeks. A miscarriage is often thought to be the result of a chromosome abnormality in the unborn baby. Other factors which can increase the risk of a miscarriage include problems with the placenta, rising maternal age, long-term chronic health conditions which are not well controlled (for example diabetes or severe high blood pressure), food poisoning, certain drugs, abnormalities in the womb and a weakened cervix.
The NHS estimates that as many as 1 in 8 pregnancies will end in miscarriage amongst those who know that they are pregnant, with many more miscarriages happening before a person even becomes aware that they are pregnant. That said, the NHS further advises that recurrent miscarriages (defined as the loss of 3 or more pregnancies) is uncommon, affecting only 1 in 100 women. The main signs of a miscarriage are vaginal bleeding, cramp and pain in the lower abdomen.
Most miscarriages cannot be prevented and many people subsequently go on to have a successful pregnancy. However, the NHS advises people to take certain steps before and during pregnancy to reduce the risk of a miscarriage to include: avoid or stop smoking, drinking alcohol and using drugs. The NHS also recommends that people achieve a healthy weight before getting pregnant, eat a healthy diet and reduce risk of infection.
What is the difference between a miscarriage and a stillbirth?
A miscarriage is legally defined as the loss of a baby during the first 23 weeks and 6 days of pregnancy. While a stillbirth relates to a baby who is born deceased after 24 completed weeks of pregnancy.
Stillborn babies are sadly more common than people may think. The NHS advises that around 1 in every 200 births in England will result in stillbirth. By law, a stillborn baby must be formally registered within 42 days of birth in England and Wales and within 21 days in Scotland.
In the case of a miscarriage, the UK government announced in July 2022 a new initiative as part of its first ever Women’s Health Strategy whereby pregnancy loss certificates will be given to those who suffer a loss before 24 weeks. It is hoped that this will help provide some form of recognition for a pregnancy loss. However, while this marks a step in the right direction, more work is still needed to improve legal rights and protections for those who suffer a miscarriage.
Currently, there are significant differences between the legal rights associated with a miscarriage and a stillbirth, with more rights attaching to a stillbirth after 24 completed weeks of pregnancy.
Should I tell my employer I have had a miscarriage?
It is a personal decision whether to tell an employer about a miscarriage. Some people remain concerned that they will suffer discrimination if their employer becomes aware that they are trying to conceive. However, it can be helpful to inform an employer so that they can provide support and discuss various issues, including how to keep in touch and whether or not you would like your colleagues to be made aware of your situation and your loss.
What legal rights do I have if I have a miscarriage?
Unfortunately, suffering a miscarriage currently gives rise to few legal rights in England and Wales. There is currently no entitlement to maternity pay or leave in contrast with those who have suffered a stillbirth. In addition, those who have suffered a stillbirth, subject to giving the correct notice, are entitled to two weeks’ parental bereavement leave and statutory parental bereavement leave pay.
However, suffering a miscarriage can be just as distressing physically and emotionally as a stillbirth and can also result in a need for time off work to try to recover and process the resulting grief. In the absence of a legal entitlement to maternity pay and leave, an employee can obtain a sick note from their hospital/GP signing them off work, which then entitles them to statutory sick pay or contractual sick pay. Most GPs should help, although this could involve an examination or evidence of pregnancy (for example a documented pregnancy in medical notes or hospital records). A GP or health professional can also certify sick leave as pregnancy or miscarriage related for as long as they consider fit.
Under equality legislation in England and Wales, a person is protected against pregnancy discrimination for a protected period of two weeks from the end of their pregnancy if they are dismissed or treated unfairly because of their pregnancy, miscarriage or related sick leave. After the two week protected period, a person may have a claim for unfair dismissal (if they have undertaken two years of work service) if they are dismissed or made redundant.
A person may also be able to make a claim for direct and/or indirect sex discrimination if they are treated unfairly because of their pregnancy, miscarriage or related sick leave. However, if an employer is not informed of the miscarriage, then any leave the person takes will be treated as ordinary sick leave and the pregnancy-related protections will not legally apply.
From a practical perspective, some who have has suffered a miscarriage may want a phased return to work, with reduced hours or workload initially. Others may prefer to return to work as before. There is, however, no automatic entitlement in England and Wales to a phased return to work. While employers will likely have a maternity policy, many have not yet implemented a policy covering miscarriage. It may therefore help to have a doctor recommend a phased return to work on a sick note as needed in individual cases.
Furthermore, some who have suffered a miscarriage may initially want some additional flexibility or adjustments at work. Although individuals are legally entitled to adjustments if they have a disability, there is unfortunately currently no entitlement in the case of miscarriage in England and Wales.
What legal rights do I have if my partner has a miscarriage?
A partner of a person who has had a miscarriage is not legally entitled to pregnancy-related leave or sickness absence in England and Wales either. However, some employers may have a miscarriage policy which includes provision for partners or offers some compassionate leave on a paid or unpaid basis. In the absence of this, partners may end up having to use their holiday allowance or take unpaid leave.
Given the current lack of legal rights following a miscarriage in England and Wales, a Private Member’s Bill was introduced to Parliament last autumn (2021) to try to improve matters entitled “The Bereavement Leave and Pay (Stillborn and Miscarried Babies) Bill”. It had its first reading in the House of Commons on 19 October 2021 and its second reading on 6 May 2022, although there is currently no future stage scheduled for this bill.
Best practice for employers
To assist and support their workforce, employers should review their maternity policies and ensure they have policies for miscarriage too. This can provide much needed guidance and help, improve staff retention and productivity, lessen isolation, provide clarity and consistence, and aid communication at a very challenging time.
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 and legal action plan to help preserve and maximise fertility, understand options and make better informed decisions about conception, family creation, biological identity and legacy, and legal outcomes for parents, children, families, donors and surrogates.
If you would like to discuss your situation or you require specialist fertility, donor conception, surrogacy, posthumous conception, family or children law advice or representation under the law of England and Wales please contact me via my bloss profile. For individually tailored employment law advice, please contact a specialist employment lawyer.
Please note that this article is for general information purposes only, reflective of law in England and Wales as at 12 September 2022 and should not be construed as legal advice. You should always obtain specialist tailored legal advice in relation to your situation.
If you're an employer looking to improve your workplace policies around miscarriage and infertility, you be interested in these workshops:
Written by Louisa Ghevaert, founder of specialist fertility and family law firm Louisa Ghevaert Associates, dated 12 September 2022.
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