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IVF and the law

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A cycle of IVF treatment usually takes at least 6 weeks and requires regular medical appointments during this period, which will very likely result in time out of the office. Often several rounds of treatment are required before a successful pregnancy can be confirmed, and the latest statistics shows that this method of conception is on the increase. However it can pose something of a minefield for employers, who aren’t sure whether employees undergoing this treatment are covered by discrimination legislation and what their rights are.

There is no statutory right to time off to undertake IVF treatment, or to receive enhanced sick leave if illness results as a side effect of the treatment, although there is nothing to prevent an employer from providing for this as part of its family friendly policies.

Once the fertilised ova is implanted into the uterus, from a legal perspective a pregnancy has occurred and as such the employee in question is covered by existing legislation in relation to pregnancy discrimination. This includes the right to paid time off for ante natal care. It is worth noting that this is the case even in situations in which a pregnancy may fail, resulting in the employee being protected by pregnancy related discrimination legislation for a relatively short period of time.

However the law in this area was given further clarification in a case heard by the European Court of Justice (Mayr v Bäckerei und Konditorei Gerhard Flöckner OHG), in which the Court determined that a woman in the advanced stages of IVF treatment was protected from less favourable treatment on the grounds of sex, and furthermore did not have to show that a male employee would not have been treated in the same way. The suggestion of the ECJ was that protection from less favourable treatment arose when the procedure took place to remove the ova in order to fertilise them, ie. at an earlier stage than the implantation of the fertilised ova following which an employee is classed as pregnant.

Furthermore, in the much earlier stages of treatment if a female employee is treated less favourably due to her decision to undergo IVF and can show a male employee would not have been subject to this treatment, this could give rise to a claim of unlawful discrimination on the grounds of sex.

In summary, employers should be careful not to treat an employee less favourably due to her decision to undergo IVF treatment, as even if a pregnancy does not result from the treatment as it is likely that the employee could successfully argue she had been subject to sex discrimination. Similarly an employer should not automatically assume an employee will get pregnant if she has started treatment, as any indication that it may be planning for the future without her would also expose the employer to liability for a sex discrimination claim.

By employment law solicitor, Martha McKinley