An Intersectional Analysis of Proposed Fertility Leave in England and Wales
By Elizabeth Chloe Romanis and Sabrina Germain
For people in England and Wales needing access to fertility treatment, economic barriers can be a huge hurdle. There are the direct costs of the treatment (some, but not all, of which are covered by the National Health Service). But there are also the less visible indirect costs associated with accessing these treatments. These include needing time off work to attend appointments, funding travel to and from fertility clinics, and having access to spaces at work to store and administer medication and take private phone calls. Indirect costs limit access to fertility treatment for structurally disadvantaged individuals in England and Wales. It is for this reason that a Private Member’s Bill currently being debated in the House of Commons, the Fertility Treatment (Employment Rights) Bill, which seeks to introduce fertility leave in the UK, should be welcomed (see earlier posts in this symposium by Dafni Lima and Manna Mostaghim).
Introducing a formal entitlement to “allow employees to take time off from work for appointments for fertility treatment; and for connected purposes” is a step in the right direction. We offer an intersectional reading of the Fertility Treatment (Employment Rights) Bill and consider how the benefits offered are likely to be stratified along class, race, sexuality, and gender lines. The Bill is well-meaning and highlights the critical issue of indirect barriers to fertility treatment in the workplace, but it is inattentive to structural issues affecting marginalized people experiencing infertility.
The Fertility Treatment (Employment Rights) Bill
The Bill introduces a right to take paid time off to attend appointments for fertility treatment, which is defined as “any form of assisted reproduction carried out by a registered medical practitioner or registered nurse” including, “IVF, artificial insemination, and intracytoplasmic sperm injection.” To be entitled to this time, an employee must, if requested, produce for their employer a certificate from a registered doctor or nurse stating that they are receiving fertility treatment and a document confirming the appointment.
Agency workers (individuals who are often employed by an employment agency to work for external hirers, often only temporarily) are entitled to the same right to paid absences for appointments when they have been working in the same role with the same hirer for 12 continuous weeks (this is the qualifying period for employment benefits given in the Agency Workers Regulations 2010).
The Bill also introduces the right for employees, or agency workers post-qualifying period, in a “qualifying relationship with a person receiving fertility treatment” to take time off for appointments. This includes a spouse/civil partner, a person living with the person receiving fertility treatment “who is not a relative,” the person who would be the father/second female parent of any child resulting from treatment per the agreed fatherhood/female parenthood conditions in the Human Fertilisation and Embryology Act 2008, or a person who is a potential applicant for a Parental Order (in cases of surrogacy) for any child born from treatment.
The broad provisions appear to account for different circumstances. However, against the context of the difficulties that some marginalized populations face in accessing fertility treatment, and health care more broadly, this law does not go far enough.
Marginalized groups and barriers to fertility treatment
Individuals with intersecting marginalized identities (for example, sexuality-gender or race-gender) face unique barriers when accessing formal health care. These barriers are exacerbated when seeking fertility treatment. Gender diverse people experience greater challenges than cisgender men and women in accessing fertility preservation and reproduction services, and racialized people have higher rates of miscarriage and overall worse outcomes during fertility treatment than their white counterparts.
Infertility is a social construct linked to identity and culture that was developed along the lines of imposed gender-roles in pronatalist and patriarchal societies, and more recently around a medicalized understanding of fertility. Some racialized groups continue to view the inability to conceive as something that should be dealt with privately, and tend to delay seeking support and information for fear of being diagnosed and labelled as infertile. Studies also report a lack of understanding and awareness of fertility treatment in some communities, because of the limited availability of primary care services and language support in some rural and deprived areas. Both phenomena contribute to health illiteracy around reproduction and the stigmatization of infertility.
Stereotypes come to limit how individuals are perceived as (potential) fertility treatment recipients. White women are considered career driven and encouraged to choose whether and when to reproduce. They are presented with fertility treatment (particularly tools of fertility preservation, such as social egg freezing) as an empowering solution to balance these preferences. On the contrary, women of color are often perceived as sexually irresponsible and are discouraged to have children. They are thought to be hyper-fertile and unaffected by reproductive challenges. Deeply entrenched gendered perceptions of pregnancy also contribute to gender-diverse people’s challenges in managing their fertility. Marginalized groups are aware of society and medical professionals’ characterization of them as unfit reproducers. Internalized pejorative perceptions and a lack of cultural humility fuel racialized and gender diverse communities’ distrust in medical professionals. Marginalized groups are reluctant to engage with formal health care, and in some cases turn to traditional healers and complementary medicine as an alternative.
The indirect costs associated with fertility treatment are particularly impactful for people who are marginalized by class or socio-economic status. Fertility appointments, and their frequency, often require flexibility and autonomy on the part of workers. This is more difficult for the precariously employed, or those employed in lower-paying work. Data in the UK shows that 1 in 8 Black and minority ethnic women are in insecure employment (compared to 1 in 16 white women and 1 in 18 white men). There is also a significant pay gap between women of color and white men because of insecure and lower-paying employment but also directly because of wage discrimination. Consequently, taking time off work to access fertility treatment is more difficult for women of color.
Failure to address structural issues
This Bill is most likely to benefit people with a lot of structural privilege: people who feel the stigma of infertility to a lesser degree; people whose access to fertility treatment fits within the narrative that the Bill reiterates, e.g., people seeking treatment within a relationship; people in stable, high-paying employment; people who are able to afford the direct costs of fertility treatment (where NHS treatment is not available).
For example, the Bill’s requirement that an employee must inform their employer of their need for fertility treatment and provide documentation may be self-defeating, especially for marginalized groups. Stigma prevents marginalized people from communicating their fertility struggles to their communities, families, and sometimes even to their partners. Imposing a medical certificate or appointment card as a formality might present a more significant barrier to this entitlement for vulnerable groups.
In requiring persons other than those receiving treatment to be in a “qualifying relationship” defined as “not a relative” (emphasis added) the Bill assumes that persons receiving fertility treatment are doing so within the confines of a romantic relationship with another person. Moreover, the Bill embodies a lack of cultural sensitivity and awareness around the struggles experienced by racialized reproducers who may be living in intergenerational households. Marginalized people seeking fertility treatment, particularly those in lower-paying employment, may be dependent on their family unit for transportation to and from medical appointments or for translation to interact with medical professionals in the clinical setting.
The definition of fertility treatment in the Bill is broad, however, it does specifically use the word treatment and assisted reproduction. There is, therefore, a grey area that must be addressed as to whether a course of medical intervention for fertility preservation (for assisted reproduction in the future) as opposed to treatment with the object of becoming pregnant in the immediate future would be encompassed in the proposed protections. While arguably, any such fertility preservation should be considered a part of treatment broadly speaking, it is notable that all the examples given in the Bill were of processes designed to result in pregnancy. This might be important for persons seeking to preserve their fertility as part of their gender-affirming care, whereby a person may seek to have eggs extracted before beginning hormone therapy. Thus, the law is — at best — vague, and — at worst — exclusionary of people who might have longer-term fertility journeys.
Finally, this Bill provides little support for persons in precarious employment. While it mentions agency workers, there is nothing about precarious employment; those in temporary and fixed term work, or on zero-hour contracts (where the employer is not obligated to give a minimum number of hours of work) who may be unable to access the protections proposed. These persons are also far more likely to be reluctant to declare that they are undertaking fertility treatment to their employer for fear of other repercussions at work (less hours, or even that their contract may not be renewed).
The Fertility Treatment (Employment Rights) Bill seeks to provide necessary support for those accessing fertility treatment. While we are supportive of legal changes to provide such employment protections, it is clear that this Bill does not serve the needs of the most marginalized persons seeking fertility treatment.
Elizabeth Chloe Romanis is an Associate Professor of Biolaw at Durham University, UK.
Sabrina Germain is a Reader in Healthcare Law and Policy and the Associate Dean for Equality Diversity and Inclusion at the City Law School.
