How to avoid potential discrimination claims from surrogate parents and those undergoing IVF (from the UK)

From HR in the UK by Tania Tandon, 06 September 2010

Surrogate parenting and IVF are becoming increasingly common for childless couples. Employers therefore need to be aware of their legal obligations in respect of individuals undergoing such processes, in order to minimize the risks of any discrimination claims.

We set out some help to avoid potential discrimination claims from individuals in these circumstances:

1. Consider workers' rights

Employees undertaking IVF will not be statutorily entitled to paid time off to attend medical appointments. Once they are deemed to be pregnant – that is, once implantation has taken place – they will be entitled to antenatal appointments as any other pregnant employee is. They will also be entitled to protection from pregnancy-related discrimination. If the pregnancy is successful they will be entitled to statutory maternity leave under the same conditions as any other pregnant employee.

Women acting as a surrogate for a childless couple will also be entitled to full statutory maternity leave and pay, even if they do not have any contact with the child after the birth.

The intended mother will not be entitled to maternity leave or pay, however, or even adoption leave, as she will not meet the necessary criteria.

The intended father may be entitled to paternity leave if he is registered as the father following the birth. If the surrogate mother's partner or the genetic father is registered as the father at birth, as is sometimes the case, neither the natural nor the intended father are likely to be entitled to paternity leave.

Those who become parents through surrogacy, and parents who conceive through IVF, will be able to take advantage of statutory parental leave and rights to request flexible working, in the usual way.

2. Review your contractual benefits

Given that the statutory benefits are minimal, employers often take the decision to allow extra contractual rights, such as allowing a number of days of paid leave each year to undertake IVF procedures, or allowing contractual adoption leave and pay to employees who become parents through surrogacy.

Employers who choose to do this must ensure that the policies are clearly drafted and transparent, and are non-discriminatory, particularly on the grounds of sex or disability. It is also worth analysing the costs of such benefits: surrogacy is still quite rare but IVF is certainly becoming much more common, and so requests for paid leave may be popular, and of course no recovery of statutory pay will be available to minimise such costs.

3. Consider your responses to requests

Employers also need to consider how they deal with requests from employees outside the scope of their policies. For instance, employers should consider carefully the risk of a sex discrimination claim before automatically refusing unpaid leave for IVF appointments, if the employee has already used up her paid time off under any policy. This does not mean that such requests should always be granted, only that they are considered on a case-by-case basis and with full foresight into whether a refusal will be discriminatory.

4. Consider disabilities

The reasons behind why an employee might need IVF or to become a parent through surrogacy could relate to a disability. This needs to be a further consideration for employers when deciding what contractual benefits to grant or dealing with requests outside of those policies. In light of the disability discrimination provisions within the Equality Act 2010, due to come into force in October, claims for disability discrimination are likely to become more difficult for employers to defend, and may well become more common. Careful thought is therefore needed now to ensure that specific benefits (or the lack of them) do not discriminate against people who are unable to become pregnant or carry a baby to full term because of a disability.

5. Act consistently

Whether employers choose generous benefits packages or stick to the statutory minimum, the important thing is to act consistently and ensure that any departures from usual practice can be justified.

Tania Tandon is a partner in the employment law team at Trowers Hamlins

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