GETTING MATERNITY ISSUES RIGHT9.12.2013
There cannot be many employers who do not have some appreciation of maternity rights. The fact is that it is often the unusual issues which trip employers up. Below is a brief summary of the issues surrounding IVF and surrogacy.
Recent decisions have provided some clarity on the protection provided to employees undergoing IVF. The current position is that when a woman is undergoing IVF treatment the protected period starts when the fertilised ova are implanted. If an implantation fails and the pregnancy ends the protected period continues for two weeks after the failure. If an employer treats an employee unfavourably during that period the employee is entitled to claim pregnancy and maternity discrimination.
In addition, a woman undergoing IVF will be protected in an additional, albeit limited, period of time before implantation. This is the time it takes for ova to be collected, fertilised and for the immediate implantation of the fertilised ova thereafter. An employer that treats an employee less favourably because she is undergoing IVF treatment is likely to be found to have discriminated against her because of her sex and therefore allow her to make a claim under the sex discrimination legislation rather than pregnancy and maternity legislation.
A recent case identified that domestic law does not in its present form protect a woman who has obtained a child through a surrogacy arrangement. A private members bill was introduced in 2012 to address this issue but failed to complete its passage before the end of Parliament. The issue is currently before the European Courts. Opinions of those advising the ECJ vary. One proposes that a woman in these circumstances should be afforded the rights and protection of maternity law but at the expense of the birth mother.
For further advice contact Amanda Finn at [email protected]