Fertility Treatment, Equality, Neutrality, and the Workplace
By Giulia Cavaliere
Should U.K. employers be required to make reasonable adjustments for women who are struggling to conceive and who are going through fertility treatment?
This blog seeks to answer this question. Before getting to that, I will say a few words about my views concerning infertility and the public provision of fertility treatment.
In my work, I argue that “infertility” should be conceived in terms of “involuntary childlessness,” i.e.:
A state of affairs X (childlessness) that an agent A does not want to find herself in due to a desire for Y (having children) and a preference for Z (genetic relatedness)
I consider having genetically related children a desire for a particular life plan (having children) and a preference for a particular parental project (one involving a genetic link between parent and offspring). In another strand of my work, I defend the public provision of fertility treatment on three grounds. The first is that involuntarily childless people may experience severe and enduring suffering, which supplies prima facie reasons to be alleviated. The second is that if we were to devise a hypothetical insurance market to decide what should be part of the public health care provision, most people may want to include fertility treatment in that provision due to the value that many attribute to having children. The third is that the relationship that one can build with their children is of a special kind, one that cannot easily be replaced by other kinds of relationships, such as friendships or romantic partnerships. Note that my views on this are non-perfectionist: I do not infer the permissibility of the public provision of fertility treatment from the view that having (genetically related) children is an objective part of the good life. My claim is rather that people’s procreative desires and preferences have a substantive weight in their own conception of the good life. This is an important qualification, as I argue that the public provision of fertility treatment should be compatible with (liberal) neutrality, i.e., the idea that the state ought to remain neutral with respect to citizens’ heterogeneous conceptions of the good. Thus, the state should not fund more generously the life plan of having genetically related children over other life plans that citizens might want to pursue, without supplying further reasons to do so.
With these clarifications in mind (for more: read my papers!), I now turn to the question of whether U.K. employers should be required to make reasonable adjustments for involuntarily childless women who are undergoing fertility treatment.
Under the Equality Act 2010, infertility is not a protected characteristic. This means that U.K. employers are not legally required to make reasonable adjustments for people going through fertility treatment, while they are legally required to make these adjustments for, say, pregnant women. As a result, in the U.K., women who are going through fertility treatment have no statutory right to take off work to undergo such a treatment. Now, while fertility treatment is often physically and psychologically burdensome for both men and women, it is particularly so for women, due to the nature of the procedures involved at various stages of the treatment. This may be what motivated the 2008 ruling of the European Court of Justice, which established that women who are going through fertility treatment are protected under sex discrimination laws. This means that if a woman who is undergoing treatment is dismissed by her employer or is treated less favorably, she may succeed in bringing a direct sex discrimination claim. If the work policy of her employer disadvantages women (undergoing treatment) as a group, she might also succeed in bringing an indirect sex discrimination claim against her employer.
A recent report from the charity Pregnant Then Screwed found that one in four U.K. women who told their employer that they were undergoing fertility treatment did not receive any support from them. Additionally, one in four reported having experienced unfair treatment as a result of disclosing to their employers that they were going through treatment. What should we make of these findings? Should U.K. employers be required to make reasonable adjustments? And, if so, what would justify this view?
On the one hand, these findings are concerning: fertility treatment is indeed burdensome, and it is disproportionally so for women. Most forms of procreative labor are heavily gendered. Women incur most of the costs associated with procreation, while men can become (genetic) fathers at significantly fewer costs to themselves. Some of these costs derive from biological differences between men and women: unlike men, women have the biological capacity to gestate, give birth and breastfeed. However, these burdens and costs are not entirely necessary, meaning immutable and inevitable: much can be done to improve the experience of pregnancy and childbirth, and to lessen the harms that are still heavily associated with it. Doing or not doing so is a matter of politics, not biology.
With respect to fertility treatment and workplace disadvantage, the Rawlsian ideal of “fair equality of opportunity” provides a justification as to why reasonable adjustments for women going through fertility treatment may be morally required. Following Rawls, fair equality of opportunity requires that “those who are at the same level of talent and ability, and have the same willingness to use them, should have the same prospects of success regardless of their initial place in the social system.” Take, for instance, Kate and Jim. Kate and Jim are equally suitable for promotion due to their work performance and similarly need to undergo fertility treatment to have children. Fair equality of opportunity requires that Jim does not have a competitive advantage over Kate for promotion due to his favorable circumstances, such as the relatively less burdensome nature of undergoing fertility treatment as a man as opposed to as a woman.
On the other hand, as I have argued, involuntary childlessness amounts to the frustration of the desire for a particular life plan, that of having children, and of the preference for a particular parental project, one involving a genetic link between parent and offspring. While having genetically related children might be a life-defining desire and preference for the agent, and its frustration might have a negative impact on her well-being, we would be violating liberal neutrality if we were to make these considerations the basis for institutional design. In my view, granting statutory rights to involuntarily childless people and not to other people who similarly have reasonable desires and preferences is morally contentious. Take, for instance, Tom and Ciara. Tom is very passionate about theatre, and his life has more meaning as a result of attending several shows per week. Some of these shows conflict with his working hours, and he asks for time off work to attend matinees. Ciara is unable to have children and needs time off work to undergo fertility treatment. Without a commitment to the view that Tom’s desires and preferences are less morally weighty than Ciara’s desire to have genetically related children, it is unjustifiable to grant time off to her and not to him. In other words, without some kind of commitment to the perfectionist view that having children is an objective part of the good life (while going to the theatre is not), there are fewer grounds to justify the permissibility of granting workplace adjustments to people undergoing fertility treatment and not to people trying to fulfill other desires and associated life plans.
A potential solution to matinees vis-à-vis fertility treatment dilemma is to defend the view that involuntary childlessness ought to be considered like other conditions that require reasonable adjustments (like pregnancy): something for which it is morally permissible (and perhaps required) to make reasonable adjustments. I do not have the space here to assess the reasons that could be supplied in defense of this view. As stated above, I do not think that involuntary childlessness should be considered like other protected conditions, as it only arises in relation to the desire for genetically related children. On my account, the only plausible justification for reasonable adjustments in the workplace has to do with fair equality of opportunity and gender equality. Barring some seriously futuristic technological interventions, such as the possibility of artificial gestation, and radical social changes, such as a more equal distribution of the burdens associated with procreative labor, women who wish to have children will always be disadvantaged at work compared to their male counterparts. Reasonable adjustments for fertility treatment are a band-aid for some of these inequalities, and perhaps one that ought to be implemented to put a little dent in a very tangible gap.
Giulia Cavaliere is a Lecturer in Ethics at the Dickson Poon School of Law at Kings College London.
