By Victoria Hooton and Elizabeth Chloe Romanis
Decisions about whether and how to reproduce are some of the most intimate and personal choices individuals and/or couples can make. For people struggling with involuntary childlessness, attempting to become a parent can involve some particularly complex decision making about technological assistance. Inevitably, these decisions touch upon all aspects of a person’s life. Their employment is no exception. People’s working status and working conditions, set against the broader context of their social circumstances, can have a huge influence on what decisions they feel able to make. This is particularly relevant for people who, for biological, social, or psychosocial reasons, need to use assisted reproductive technologies (ARTs) to reproduce.
The use of ART is ever-increasing globally and has expanded exponentially in Europe. The regulation of such technologies differs between jurisdictions, as do the legal frameworks impacted by ART use, such as medical or family law. Advancements in medical sciences, including reproductive technologies, are (mostly) first discussed by legal scholarship in the context of whichever legal framework will most immediately affect access to the advancement, usually criminal or medical law. This occurs alongside the immediate ethical questions that are undoubtedly raised with new advancements in reproductive care or practice. The interaction between a prospective or current type of reproductive technology and labor or equality law does not tend to be high on the list of priorities and is not usually discussed until it becomes a necessity. This is well evidenced by the academic intrigue at the Court of Justice of the European Union’s decisions on surrogacy and maternity leave, and on when pregnancy begins for the purposes of pregnancy discrimination law in an IVF case. Analysis of the equality and employment law implications of reproductive technologies are rarely front and center and are often reactionary.
We believe there are practical and academic benefits from having these discussions before judicial or legislative intervention makes them a necessity. Starting discussions on the relationship between reproductive advancements and labor and equality law sooner, rather than later, is desirable from an individual and policy perspective. Greater knowledge about the workplace and equality implications of a particular reproductive advancement allows individuals who use those technologies to be more informed about their rights, or how their work life will be impacted by their use of ART. This knowledge can also influence policy and legal choices, i.e., the outcome of legal decisions relating to a particular technology in equality law, or the reform of equality law to accommodate for these technologies. We have argued elsewhere that workplace rights and protections should not be stratified to the manner in which one conceives, carries their pregnancy, or builds their family. Yet to ensure substantive equality of treatment between those undertaking unassisted reproduction and those utilizing ART, legal frameworks must adapt to the changing metaphysical and social realities of reproduction and family planning. This requires forethought, regulatory and institutional support, and political will, all of which are often lacking when reproductive issues are at the heart of a subject.
Regardless of the engagement of policy makers and regulators, academic discussions can aid the visibility of workplace struggles for ART users or, in some cases, people resisting the use of ART. Drawing attention to the challenges faced by these individuals in their work lives is imperative if discrimination, unfair treatment, and unsupportive workplace policies are to be avoided. The career challenges that ART users (or people wanting to avoid ART) face might otherwise remain hidden, or unchallenged by those experiencing unfair treatment, which might be overshadowed by the medical and emotional challenges that infertility or struggles during pregnancy can bring. At an already challenging time physically and emotionally, ART users should not have to worry about the workplace implications of their infertility or reproduction journey. A U.K. study by Pregnant then Screwed and Women in Data highlighted that of the people who had told their employer they were undergoing fertility treatment, 24% received no support and another 24% experienced unfair treatment as a result of their disclosure. With the use of ART ever-increasing, and a predicted 1 in 6 people experiencing infertility worldwide, it is difficult to see why employers should not be obliged to support staff undergoing fertility treatment in the same (or in a similar) way they would be obliged to support pregnant staff.
In this series of posts that we have collated, legal scholars and bioethicists interested in the workplace impact of ART usage have come together to discuss the successes of, and challenges for, labor laws now facing changing concepts of reproduction, pregnancy, and family building. Blog posts on the labor law impact or relevance of decisions to use (or not to use) IVF, egg freezing, artificial womb technology, surrogacy, or womb transplants highlight a need for the legal landscape to change just as fast, if not faster, than the medical field relating to reproduction. Several jurisdictions are considered, with a broad range of regulatory approaches (Canada, Israel, European Union, South Africa, U.K., and U.S.). Some consider contemporary issues, and others consider more speculative matters. Collectively, however, they tell a story about the importance of reflecting on the ways that the workplace can and does influence our reproductive consciousness and individual decision-making.
Victoria Hooton is a Research Fellow at the Max Planck Institute for Legal History and Legal Theory, Germany
Elizabeth Chloe Romanis is an Associate Professor of Biolaw at Durham University, UK.
