By Dafni Lima
A series of legal rules are designed to ensure that, when welcoming a child, parents are given the protection and support they need in relation to work. The same cannot be said for those dealing with challenges unique to assisted reproduction. This post argues that the protective rationale of parental leave should be extended to address the needs for those undergoing fertility treatment in the form of a new “assisted reproduction leave.”
Parental Leave and Protections for New Parents
Legal protections for new or prospective parents can be distinguished into two layers. The first layer focuses on the pregnant person. Federal laws protect pregnant employees against work-related discrimination and unfair dismissal in the United States. In Europe, the EU, through the case law of the Court of Justice of the European Union (since Dekker) and secondary legislation (such as Council Directive 92/85 on pregnant workers), as well as the European Court of Human Rights, have established protections for pregnant workers. Depending on its scope and purpose, support can also extend before conception or after birth, for instance, to potentially pregnant or breastfeeding persons.
Besides protection from discrimination and the right to supportive working conditions, legal rules, including transnational instruments such as the ILO (International Labour Organisation) Maternity Protection Convention, 2000 (No. 183) and Article 33(2) of the EU Charter of Fundamental Rights, have established the right to paid maternity leave. This right is now commonplace: in its recent Care at Work Report the ILO notes that 123 countries globally offer fully paid maternity leave. In fact, the United States remains the only OECD country without a nation-wide paid parental leave scheme, after a recent failed attempt to introduce one through the 2021 American Families Plan. Certain US states, however, have introduced their own laws. As of 2022, an average of 50.8 weeks of paid leave was available to mothers across OECD economies, and an even higher average of 64.6 weeks across EU countries.
The second layer of legal protections reach further than the person giving birth to offer ‘paternity’ leave to fathers following the birth of a child, or broader in scope and gender-neutral ‘parental’ leave. Offering paternity (or second parent, where applicable) leave is mandatory for EU member states (EU Directive 2019/1158). This second layer of rights also extends support to welcoming a new child through adoption or foster placement. In the United States, state-wide paid parental leave schemes such as California Paid Family Leave, Massachusetts Paid Family and Medical Leave and New York State Paid Family Leave apply to children welcomed through birth, adoption, or foster placement. Combined with the increasing recognition of paternity/second parent leave, this highlights that parental leave is not only meant to support the pregnant person with the physical challenges of carrying a pregnancy and performing post-natal tasks like breastfeeding, but equally to allow new parents to care for and bond with a child.
The eligibility and benefits of the various types of leave across countries may vary but there is wide consensus on its positive impact. The multitude of benefits of leave policies have been highlighted in empirical studies, including the positive impact on the health of mothers, fathers and children, the retention of women in the workforce, and their positive impact on increasing fertility. Yet, if increasing and supporting fertility is one of the main objectives for offering such legal support, then it is high time policy makers considered the next step: offering “assisted reproduction” leave to aid those undergoing relevant treatment.
Laws Need to Address Challenges Unique to ART
Assisted reproductive technology (ART) is broadly used as an umbrella term to describe a variety of fertility techniques relating to gametes and embryos, from IVF (In Vitro Fertilization), to gamete donation, and surrogacy. Technologies that aim to maintain fertility for the future, such as egg or embryo freezing, are also often included in the discussion. Due to a variety of factors, including lower child mortality rates, advances in gender equality, and more accessible and efficient contraception, fertility rates keep dropping across the world. Meanwhile, according to European Society of Human Reproduction and Embryology data on assisted reproduction uptake is rising: as of 2022, more than 10 million children have been born worldwide with the help of ART.
With assisted reproduction on the rise, and developing technology like “artificial wombs” likely to challenge our laws even further, it is time to rethink and expand the relevant employment rights framework. While workers who turn to ART can take time off once pregnant or after birth according to general maternity or parental leave rules, pre-conception medical appointments and care typically fall outside their scope. When undergoing assisted reproduction treatment, the path leading up to pregnancy can be expensive, time-consuming, and physically and emotionally challenging. It can take more than one treatment cycle for successful implantation and pregnancy, and time to deal with the physical and psychological impact of an unsuccessful attempt. These unique challenges for ART users need to be brought within the protective scope of relevant laws.
In the UK, a Private Members Bill aimed at establishing a “fertility leave” is currently under discussion in the House of Commons. It would give workers the right to take paid leave to attend medical appointments connected to fertility treatment, as well as eligible persons (such as partners and prospective second parents) the right to unpaid leave to accompany the person receiving the treatment. Currently, with no statutory right for time off work for fertility treatment, ACAS guidance advises UK employers to treat time off for IVF treatment as any other medical appointment.
Yet having such leave be distinctly recognized and protected in law separately from medical leave and alongside parental leave would better serve four distinct objectives. First, it would address an issue of labels: it would reframe ART and fertility treatment leave in a more positive context within the spectrum of employment rights aimed at facilitating reproduction and family life, such as parental leave, rather than as a health issue necessitating medical leave. This could have a positive impact on raising awareness and eroding the taboo surrounding fertility challenges. Surveys report that when attending a fertility appointment 20% of employees would rather call in sick than disclose fertility-related problems and 60% do not disclose to their employer for which purpose they took leave. Second, it would respond to an existing need, as a rising number of employees are turning to ART. According to the Human Fertilisation and Embryology Authority, the UK regulatory body on assisted reproduction, in 2021, 55,000 people underwent IVF or donor insemination treatment at licensed clinics across the UK. Third, it would ensure uniform application across employers, without having to rely on optional regulatory guidance and employer-specific fertility leave policies. And fourth, it would explicitly reflect in legal terms the significance of supporting fertility and reproductive autonomy as a matter of public policy.
While the fate of the proposed Fertility Leave Bill in England is uncertain, it signals a wider need for European jurisdictions to initiate the debate on a national assisted reproduction leave plan. Malta has already taken the lead by offering national paid IVF leave. In the US, any discussion on offering federal or state parental leave should also include assisted reproduction leave. Parental leave has proven it works when it comes to facilitating fertility — it is now time to acknowledge the unique challenges of assisted reproduction and expand its protective rationale to fertility treatment.
Dafni Lima is an Assistant Professor at Durham Law School.
