HR policy and the law are some way behind IVF technology
In a bid to recruit and retain female employees in their male-dominated workplaces, both Facebook and Apple recently announced that they would cover the costs of egg freezing for their female employees. The thinking behind this was reported to be so that young women could postpone having children and focus on their careers.
Ethics
The proposal raises a host of ethical and legal questions. Is it appropriate for employers to be so intimately involved in a woman’s reproductive decisions by offering egg freezing as just another convenient service for employees alongside the canteen, gym membership and on-site dry cleaning? Will women be tempted to put off motherhood indefinitely for the sake of another promotion? Will the employer be responsible for the employee’s subsequent childlessness if the egg-freezing fails? What happens if the employee leaves before the employer has recouped the $20,000 this benefit is rumoured to cost? Would the woman’s employment be protected if she decided to accept the offer?
Legalities
EU law protects women who are pregnant or breastfeeding, but there is less protection for women undergoing fertility treatment, or who think they might undergo it in the future. In the Austrian case of Mayr v Bäckerei und Konditorei Gerhard Flöckner OHG a woman who had been undergoing IVF treatment was signed off sick for six days by her doctor. On the very day that her ova were successfully fertilised in the lab, she was dismissed. The employee informed her employer that the fertilised ova were due to be implanted three days later and claimed the protection of Austrian pregnancy legislation.
The European Court of Justice held she was not protected by the pregnant workers directive as although fertilised eggs existed in the lab at the date of her dismissal, the woman herself was not actually pregnant. However, the equal treatment directive did protect her, and her dismissal breached the principle of equal treatment of men and women in the workplace. As pregnancy is a physical reality that only affects women, any dismissal because of pregnancy, or for a reason essentially related to pregnancy, affects only women and constitutes direct sex discrimination. But the court limited the scope of the protection to a woman who was at an advanced stage of IVF, when the transfer of the fertilised ova was imminent.
This decision has since been followed in the UK in the case of Sahota v Home Office and Pipkin. Here the Employment Appeal Tribunal found that less favourable treatment on the grounds that an employee is undertaking IVF does not constitute direct sex discrimination. So, if an employee decides to freeze her eggs for an extended period in order to pursue her career, she will have no protection against less favourable treatment until she has reached an advanced stage of fertility treatment when the fertilised eggs are about to be implanted.
The reasoning behind denying protection to women who choose to freeze their eggs is that the length of such protection could last indefinitely. In the Sahota case, the EAT was also following earlier European case law which established that women are not protected from detriment outside the 14-day ‘protected period’ of pregnancy and maternity leave unless they are being treated differently from men who are absent because of illness. It is irrelevant that they are undergoing treatment that is specific to women, such as IVF.
Policy
If egg freezing and IVF are to become worthwhile workplace benefits, then employers will need to think carefully about the extent to which they wish to become involved in these deeply personal decisions, and there is ample room for further legal argument in this complex and sensitive area. Employers will need to introduce safeguards such as confidentiality to ensure that management decisions are not influenced by the fact that a woman may be contemplating using the frozen eggs. Organisations will also need to clarify what happens to frozen eggs at the end of the employment relationship and that they are not responsible if any subsequent implantation fails.
Meriel Schindler is a partner and head of employment, and Carmel Owen is a paralegal, at Withers
For more employment law articles, visit HR-inform
↧
Freezing human eggs in Silicon Valley
↧