Assisted Reproduction, Discrimination, and the Law

Conceiving a New Interpretation of Equality

Michelle Weldon-Johns

• Publisher: Routledge
• Year: 2019
• ISBN:
  9780429879999
• Edition: 1
• Topic: Droit
• Subtopic: Théorie et pratique du droit

The numbers of women undergoing Assisted Reproduction Technology (ART) treatments have risen steadily, yet they remain largely outside the scope of equality and employment law protection while undergoing treatment. Assisted Reproduction, Discrimination, and the Law examines this gap in UK law, with reference to EU law as appropriate, and argues that new conceptions of equality are necessary. Drawing from the literature on multidimensional and intersectional discrimination, it is argued that an intersectionality approach offers a more useful analytical framework to extend protection to those engaged in ART treatments. Drawing from Schiek's intersectional nodes model, the book critically examines two alternative interpretations of existing protected characteristics, namely infertility as a disability, with reference to the social model of disability and the UN Convention on the Rights of Persons with Disabilities 2006, and redefining the boundaries of pregnancy and/or sex discrimination, with reference to attempts to extend associative discrimination to pregnancy. Comparisons are drawn with the US, where infertility has been recognised as a disability under the American's with Disabilities Act 1990 and as a pregnancy-related condition under the Pregnancy Discrimination Act 1978. A specific right to paid time off work to undergo treatment is also proposed, drawing comparisons with the US Family and Medical Leave Act 1993 and the existing UK work-family rights framework. It is argued that the reinterpretations of equality law and the rights proposed here are not only conceptually possible, but could practically be achieved with minor, but significant, amendments to existing legislation.

1 Introduction

Introduction

Research published by the Human Fertilisation and Embryology Authority (HFEA) in May 2019 showed that the number of assisted reproduction technologies (ART) treatments undertaken in the UK has risen steadily since 1990.¹ These data show that in 2017, 54,760 patients underwent 75,425 treatments, indicating that some underwent multiple treatment cycles. These included 69,822 cycles of in vitro fertilisation (IVF), 5,603 cycles of intrauterine injection (IUI) in the form of donor insemination, 1,462 egg-freezing cycles, 581 egg-thaw cycles, 690 pre-implementation genetic diagnosis treatment cycles and 447 egg-sharing cycles,² and this does not capture pre-treatment assessment undertaken to investigate and diagnose infertility issues in the first instance. For those undergoing treatment aimed at facilitating conception, only 22% of IVF and 14% of IUI treatments were successful.³ This, in part, explains why some patients underwent multiple treatment cycles. These figures represent an increasing number of women utilising ART treatments for various reasons, including extending and/or protecting reproductive capacity and, primarily, to become pregnant. While the vast majority were in heterosexual couples (90.7%), there is an increasing diversity of partner status of patients which includes female same-sex couples (5.9%), single women (3%) and surrogates (0.4%).⁴ This indicates that recourse to ART treatments is an increasingly normalised route to parenthood and is likely to continue to increase in the future.

1Human Fertilisation and Embryology Authority, ‘HEFA Fertility Treatment: Trends and Figures 2017’ (HFEA 2019) 17–19.

2Ibid, 18–19.

3Ibid, 22.

4Ibid, 9, 13.

While this is not solely a question of infertility, this continues to be the primary reason for undergoing treatment. Infertility is often perceived as a woman’s ‘fault’⁵ and her responsibility to remedy.⁶ This is reflective of the fact that treatments are asymmetrical in nature with women undergoing the most invasive and prolonged procedures.⁷ Consequently, women bear the significant physical, mental and emotional strains, burdens and risks of undergoing treatment from the investigatory stages throughout ART treatments and then during the much-desired pregnancy should treatment be successful. While it could be argued that undergoing ART treatments is a ‘choice’ for which those engaging in it have accepted to bear the risks, this fails to understand the responsibility that a woman may feel to undertake such treatment, particularly where the issue lies with her partner.⁸ It also fails to appreciate the lack of alternative options for same-sex couples who wish to have a child that is biologically related to one of them. In addition, pressures within society for women and couples to have a child and the continued stigma of being involuntarily childless that many women face also contribute to decisions to undergo treatment.⁹ While it can be argued that the pressure to become a mother is underpinned by patriarchal assumptions about women’s role and social identity,¹⁰ involuntary childlessness is nevertheless the fundamental reason why those engaged in ART treatments are doing so.¹¹ Fundamentally, those who choose to undergo ART treatments do so for the simple reason that they want to have a child that is biologically related to them.

5Deborah K Dallmann, ‘The Lay View of What “Disability” Means Must Give Way to What Congress Says It Means: Infertility as a “Disability” Under the Americans with Disabilities Act’ [1996] 38(1) Wm & Mary L Rev 371, 386–87; Ruth Deech and Anna Smajdor, From IVF to Immortality: Controversy in the Era of Reproductive Technology (OUP 2007) 13; Arthur Greil, Julia McQuillan, and Kathleen Slauson Blevins, ‘The Social Construction of Infertility’ [2011] 5(8) Sociology Compass 736.

6Elizabeth A Sternke and Kathleen Abrahamson, ‘Perceptions of Women with Infertility on Stigma and Disability’ [2015] 33(3) Sex Disability 3, 5.

7Deech and Smajdor (n.5), 20–21.

8Sternke and Abrahamson (n.6), 5.

9Deech and Smajdor (n.5), 87–91; Rachel Anne Fenton, D Jane, V Rees and Sue Heenan, ‘ “Shall I Be Mother?” Reproductive Autonomy, Feminism and the Human Fertilisation and Embryology Act 2008’ in Jackie Jones, Anna Grear, Rachel Anne Fenton and Kim Stevenson (eds), Gender, Sexualities and Law (Routledge 2011) 242–44; Sternke and Abrahamson (n.6).

10For an overview see: Fenton, Rees and Heenan (n.9), 242–44.

11Shorge Sato, ‘A Little Bit Disabled: Infertility and the Americans with Disabilities Act’ [2001] 5 Legislation and Public Policy 189, 201; Ibid.

Aside from these burdens and risks, working women face the dual burdens of undergoing treatment while balancing paid employment. Deech and Smajdor note that the implications for time off work are not limited to actually undergoing treatment, which is time-sensitive and inflexible itself, but can also be related to the physical and psychological effects of undergoing treatment which require additional absences.¹² Consequently, women undergoing ART treatments are not only exposing themselves to the risks involved in undergoing treatment but also those related to taking continued time off work,¹³ sometimes with little advanced notice. This is coupled with the lack of legal framework specifically aimed at protecting those undergoing ART treatments. In addition, while they may not wish to disclose this to their employer, often the circumstances themselves make it difficult to keep it secret. As Advocate General (AG) Colomer observed in (Case C-506/06) Mayr v Bäckerei und Konditorei Gerhard Flöckner OHG,

12Deech and Smajdor (n.5), 89. Recent research in the UK supports this: Nicola Payne, Susan Seenan and Olga van den Akker, ‘Experiences and Psychological Distress of Fertility Treatment and Employment’ [2019] 40(2) Journal of Psychosomatic Obstetrics & Gynecology 156, 162–63.

13Sandra M. Tomkowicz, ‘The Disabling Effects of Infertility: Fertile Grounds for Accommodating Infertile Couples under the Americans with Disabilities Act’ [1995] 46 Syracuse L Rev 1051, 1088; Dallmann (n.5), 392; Cintra D. Bentley, ‘A Pregnant Pause: Are Women Who Undergo Fertility Treatment to Achieve Pregnancy within the Scope of Title VII’s Pregnancy Discrimination Act’ [1998] 73 Chi-Kent L Rev 391; Teresa M. Abney, ‘Working Women Seeking Infertility Treatments: Does the ADA or Title VII Offer Any Protection?’ [2009] 58(1) Drake L Rev 295, 296; Sternke and Abrahamson (n.6), 5; Kerry Van der Burch, ‘Courts’ Struggle with Infertility: The Impact of Hall v. Nalco on Infertility-Related Employment Discrimination’ [2010] 81 University of Colorado L Rev 545, 550–52.

Ms Mayr probably wished to keep her desire to conceive to herself. It would be quite reasonable to suppose that she would have preferred to keep this private and intimate matter a secret for a few months. But this was not possible as the assisted reproduction process to which she was obliged to have recourse made it necessary for her to disclose her secret immediately.¹⁴

14[2008] 2 CMLR 27, [AG4].

As decisions within both the UK and the EU have shown, women undergoing ART treatments have only been able to secure equality law protection in very limited circumstances, where transfer is imminent.¹⁵ These decisions exposed the limitations within the current equality law framework and the difficulty of interpreting existing protected characteristics to include those undergoing ART treatments. This is particularly problematic as the stages involved are lengthy, complex and largely asymmetrical with women bearing the greatest burdens. The lack of legal protection during such time only exposes them to greater uncertainty and risk during a period which is already fraught with both.

15Ibid; Sahota v The Home Office [2010] 2 CMLR 29.

A significant difficulty in this context is the diversity of those using ART treatment with the result that they do not fall within an easily defined group or protected characteristic. The primary connecting factor is that the recipient of the treatment is biologically female, with women being perceived as the ‘primary interest holders in reproduction.’¹⁶ However, as the HFEA data show, the reasons for undergoing treatment are varied. While these can be referred to broadly as fertility treatments, the inability to conceive naturally can be related to a range of factors. For instance, the woman undergoing treatment may have a fertility issue herself which may relate to an underlying disability that prevents and/or reduces the likelihood of her conceiving naturally and/or from maintaining a pregnancy. However, the fertility issue may relate to her partner and treatments are required to facilitate conception. Alternatively, it could relate to social factors, such as same-sex relationships or age-related fertility issues, that may be related to delaying parenthood,¹⁷ or it could be entirely unexplained.¹⁸ Consequently, the experiences of those undergoing ART treatments are varied and complex, not least of all because they have the potential to intersect with a variety of protected characteristics. This can raise practical and conceptual difficulties when attempting to include those undergoing ART treatments within the current equality law framework.

16Fenton, Rees and Heen...