EveryWoman Day: A family and employment law perspective

We are frequently asked as family and employment lawyers for advice in connection with people seeking to build a family. There is a plethora of medical treatment now available for anyone struggling with infertility and the law is moving to cater for those who need to rely on such treatments in order to have children. Employers are also offering more protections and benefits for their employees who are pursuing alternative routes to parenthood.

One treatment that is growing in popularity is egg freezing. In a world where many women delay having children in favour of pursuing a career, egg freezing is becoming a more frequently used way of attempting to protect against future fertility issues.

IVF is probably the most well-known treatment for infertility but there are many more methods of assisted conception. Most of those treatments will involve hormone treatment of some sort and there can be various side-effects including hot flushes, headaches, abdominal pain and ovarian hyper-stimulation syndrome. There is currently no legislation entitling people undergoing fertility treatment to any time off work (outside of normal policies for medical appointments and sickness absence).

Lots of employers are looking to create a positive and supportive environment for people undergoing fertility treatment. We have seen policies being introduced specifically dealing with IVF and assisted conception including paid time-off for treatment. It is also becoming more commonplace for employers to extend their health insurance benefits to cover fertility related treatments.

It has been recognised that people undergoing assisted conception are not appropriately protected. The Fertility Treatment (Employment Rights) Bill is currently in its second reading in Parliament, and it seeks to introduce a right to time off for medical appointments in the early stages of IVF.

For those for whom assisted conception is not possible, surrogacy or adoption offer another route to creating a family.

Surrogacy

In this country, surrogacy is legal. However, commercial surrogacy is prohibited, surrogacy agreements are not enforceable and at birth the surrogate will be considered the child's mother (and if she is married or in a civil partnership then her spouse or civil partner will be considered the second legal parent). To be recognised as the child's legal parents following surrogacy, an application to Court must be made to obtain a Parental Order.This can only be done after the child's birth.

Many intended parents choose to pursue international surrogacy arrangements abroad. The law regarding surrogacy varies significantly between different countries. For example, in some US states (such as California) it is possible to enter into commercial surrogacy arrangements and to obtain "pre-birth" orders conferring legal parentage..

The Law Commission issued a Consultation Paper in 2019 to consider whether changes are needed to the law in the UK to better serve and protect those involved in surrogacy arrangements; their final report and draft bill are expected in Autumn 2022.

Adoption

Adoption transfers legal parenthood from a child's birth parents to adoptive parents. Sadly, adoption rates in the UK are falling, with many children left in the care system. The adoption process is rigorous and legal advice can be needed to navigate the various stages.

International adoption is also possible but proper planning and advice is essential as different rules apply depending upon the country in question - there are also related criminal offences to guard against child-trafficking. International adoptions can be recognised here if undertaken in "designated countries". An alternative route is the Hague Convention on Inter-Country Adoption, to which certain countries are signatories. However, in some cases, re-adoption in this jurisdiction will be required. Furthermore, the Foreign & Commonwealth Office maintains a list of countries to which special restrictions regarding adoption apply.

Both surrogacy and adoption can be wonderful ways to create or add to a family, but intended parents need to be properly supported through the process, including by their workplaces.

The UK's statutory framework provides for different types of family friendly leave and pay. Many employers also provide enhanced family friendly policies. The statutory provisions for adoption leave and pay for the primary carer mirror maternity leave rights and are also available to parents with a child born through surrogacy.

Pregnancy and Baby Loss – Leave Entitlements

In the event that a woman or couple suffer pregnancy or baby loss, which is sadly more common than many people realise, there are some statutory entitlements to leave and pay. However, these are not applicable in all cases and there is an increasing drive to enhance those entitlements.

Very broadly speaking, a mother and their partner may be entitled to leave and pay under the standard maternity and paternity leave/pay provisions (and subject to the same qualifying criteria) if a pregnancy reaches 24 weeks before a loss, or where a baby is born alive at any stage of pregnancy and subsequently dies (a neonatal loss). Parents in this situation may also qualify for Parental Bereavement Leave (up to two weeks) and pay. However, any entitlement to Shared Parental Leave after a baby is stillborn or dies shortly after birth is reliant on SPL having already been scheduled, which often it has not.

Pregnancy loss prior to 24 weeks of pregnancy does not entitle an employee to any statutory leave or pay. Parents may take sick leave and it is at the discretion of the employer whether to offer compassionate leave, annual leave or unpaid leave in these circumstances.

The provision of leave and pay under the applicable statutory regime is significantly curtailed if an employee is on adoption leave and their adopted or surrogate child dies.

Many employers are now introducing policies and other arrangements to support families that experience the loss of a pregnancy or baby.

Of course, not all health concerns for women are related to fertility. Two conditions that are a current topic of conversation are menopause and menstruation.   

Menopause

Menopause and perimenopause symptoms can have a significant and, sometimes, debilitating impact on women in the workplace. Some of the symptoms include, insomnia, hot flushes, anxiety, brain fog, mood swings, migraines, muscle and joint pain, heavy and unexpected bleeding. The onset of symptoms typically occurs between the ages of 45 and 55.

The symptoms women experience can directly affect skills, attrition rates, retention and succession planning in many organisations. The Fawcett Society's "Menopause in the Workplace" report, published in April 2022, states their finding that 1 in 10 women who worked during menopause have left a job due to their symptoms. All at a time when there is scrutiny of gender diversity which companies struggle to satisfy, particularly at senior levels. 

However, the law does not currently include specific protection for the menopause. The Fawcett Society's Report calls on the Government to amend discrimination law to better accommodate claims for menopause-related discrimination. There is an increased focus on this area of workplace menopause support, and a rise in Tribunal cases.

Menstruation

A 2022 survey conducted by TOTM (a sustainable sanitary product brand) found that as many as 94% of women say they have experienced period-related pain or discomfort at work. Research conducted by YouGov Omnibus for BBC Radio 5 in 2017 found that 57% of working women have said that period pains have affected their ability to work.

Currently there is no right to menstrual time off in the UK (outside of normal sickness absence). Recently, Spain has identified a plan to introduce between 3 to 5 days menstrual leave.

Employers could introduce their own policies and/or hybrid and flexible working arrangements, which may avoid the need for the employee to take time off during their menstrual cycle, although this is not a trend we have seen gain momentum yet.