Weekly dilemma: IVF treatment

Mary Clarke, partner at DLA Piper, offers guidance to those employers that are dealing with employees undergoing IVF treatment.

One of my team leaders has told me that she has been trying to have a baby for several years, and that her doctor has now recommended IVF. She will require three days off a month to have the treatment. She has also asked me what her maternity rights would be if she arranged a surrogate pregnancy. I am afraid of making mistakes which could lead to discrimination claims, so what exactly are her rights?

Surrogacy and IVF have become complex issues for employers to manage. A woman undertaking IVF can become ill as a result, and employers often question whether time off for IVF should be treated as sick leave.

If someone is unable to go to work because of treatment, it is probably best practice to treat the time in the same way as any other period of illness or a medical appointment. Some employers suggest that the time off is 'voluntary' – the treatment is by choice. It is risky for an employer to make decisions about paying sick pay on the basis of this sort of 'choice'. Some people are absent because they drink or as a result of smoking, both of which are choices. It would be difficult and invasive for employers to assess whether an employee had brought the illness on themselves. Further, employers must not treat a female employee undergoing IVF less favourably simply because of the treatment she is receiving or because she may, as a result, become pregnant at some time in the future. This will be direct sex discrimination, for which compensation is unlimited.

An employee undergoing IVF does not have protection against discrimination or detriment on the basis of pregnancy until she is pregnant. In a recent case, the European Court held they were only entitled to protection as a pregnant worker once the embryo had actually been implanted.

Surrogacy presents different but equally complex issues. The birth mother is entitled to full maternity leave from her job, whereas the intended parent has no equivalent right. As a result, there is a real anomaly: the woman who will in fact be taking care of the baby as the baby's mother, is not entitled to maternity leave. Most employers, in this increasingly common situation, grant both mothers full maternity rights. However, the employer is not entitled to recoup the cost of any maternity pay which they may pay voluntarily.

Mary Clarke, partner, DLA Piper