Fertility rights: Your baby or your job?

Fertility treatment can be stressful and disruptive. But do women have the right to take time off work for it? Unfortunately, the law is far from straightforward, finds Penny Lewis

Recent disclosures that sperm had been mistakenly implanted into the wrong woman's eggs during IVF treatment, at the Assisted Conception Unit of Leeds General Infirmary, will heighten concerns of participants undergoing already stressful fertility treatment.

The couples involved in the mix-up must be living out their worst nightmare, not least because the situation triggered challenging legal questions about parentage. Pending determination of this issue, Dame Butler-Sloss, the senior family division judge, ruled that the affected test-tube twins should remain with their biological mother.

Although such mistakes are rare, the case highlights just one legal side-effect of fertility treatment. A more common conundrum is how medical appointments impact on employment rights. To what extent, are individuals of either sex entitled to seek medical care in office hours?

The compatibility of fertility treatment and work is a growing problem. According to the Human Fertilisation and Embryology Authority, the body that ensures that clinics offering IVF and donor insemination conform to high medical and professional standards, one in six couples suffers from infertility. Last year 23,000 people underwent 25,000 cycles of IVF treatment in 75 licensed clinics.

These statistics are only the tip of the infertility iceberg because they do not include all techniques. Quantum leaps in medical science have increased both the variety and success rate of options. The leading fertility expert Lord Robert Winston, of Imperial College and the Hammersmith Hospital, is keen to emphasise that IVF is just one of a "whole range of treatments".

Peter Brinsden is the medical director of the Bourn Hall Clinic, established by the IVF pioneers Patrick Steptoe and Robert Edwards shortly after the birth of the first test-tube baby, Louise Brown, in 1978. Dr Brinsden, a gynaecologist who joined the clinic 14 years ago, says theirs was "the first solely private clinic to offer National Health Service as well as private treatment". They see 1,000 patients a year, of whom about 800 undergo IVF. A "large majority of women combine work with treatment".

Dr Brinsden recognises that IVF "is something you have to be committed to do" but is neither an overnight nor a miracle cure. The time you have to spend "depends where you are geographically to the clinics". Typical cycles involve "during a two-to-three-week period giving up four or five slots in addition to which there will be two whole-day sessions for egg collection and transfer". The national "take home" baby rate is 21.8 per cent per cycle; Bourne Hall's rates are 23.3 per cent overall and 26.7 per cent for women under 38. Many undergo several attempts at conception.

An NHS spokesperson confirms that access to specialist care is "decided by the primary care trusts. There are no national guidelines, which has led to the postal code lottery". The National Institute for Clinical Excellence is expected to publish the first written targets for health authorities concerning fertility treatments in 2003. For now, with waiting lists of up to three years, those accepted on to programmes will not want to forfeit chances of motherhood because of work demands.

The barrister David Reade, of Littleton Chambers, points out that women in demanding jobs can find themselves in a dilemma. He notes that "the legal profession, for example, has not always been quick to heed its own advice on flexibility in the work place. There is pressure on fee earners to achieve billable hours. Where those fee earners are women with child care commitments to juggle with their work, tensions can and do arise." Nevertheless, he suspects that "fears of professional suicide have perhaps led to only a trickle of claims".

Confronted with conception difficulties, there might be extra pressure on career-minded women to opt for private care because appointments can be more easily accommodated within demanding schedules. The downside is that these are not covered by health insurance. Basic costs of IVF can be more than £2,000 per cycle, exclusive of drugs. Dr Adrian Bull, the director of Axa PPP, the medical insurers, says that treatments undergone "as a matter of choice like fertility or gender change rather than in response to an unexpected medical need can't be insured against". Private medical cover is for unplanned contingencies.

It is recognised that employees can take time off for medical appointments or illness. Barry Stanton, an employment solicitor, says "an employment tribunal would find that if a sick note had been signed by a GP then it is impossible unless the employer could find fraud, to avoid paying the employee while on sick pay".

Dr Brinsden argues that since "infertility is mostly due to some medical condition" you should be able to seek help in work hours "in the same way as for tonsillitis or cancer of the womb". Lord Winston says that at his hospital they try to accommodate patients with "flexible hours". Straightforward appointments normally take place before 9.30am. Nevertheless, patients "will have to miss work for specific procedures". He is optimistic that "most employers are increasingly sensitive to the needs of people attending clinics".

But does infertility entitle employees of both genders to paid leave? The answer is unclear. According to Reade, "lifestyle treatments such as IVF carry no specific entitlement to time off work, whether paid or otherwise. The statutory regime under the Employment Rights Act 1996 for time off work for ante-natal and maternity leave only arises once a woman is pregnant."

It follows that initial appointments do not amount to maternity care. Even with ante-natal appointments, precisely what is covered is debatable. The key appears to be whether an activity is carried out on doctor's orders. Reade confirms that "relaxation classes undertaken on medical advice have been held to be within the scope of ante-natal care".

Stanton adds that in practice "most employers would allow reasonable time off work to attend clinics. It is possible that if they did not, a woman could argue that she had been constructively dismissed due to a breakdown in the implied term of trust and confidence." He anticipates that "if employers refuse to allow reasonable time for treatment, dismissal due to absence would almost certainly be unfair." Dispensation might also be given on discretionary compassionate grounds where there is a risk that refusal might precipitate depression.

The question of time off affects men too. Reade recalls one instance where "an argument was raised that a husband who had suffered detriment at work because he had taken time off to support his wife through IVF treatment claimed indirect discrimination on the grounds of marital status, a form of sex discrimination since the employer's policy would affect a considerably larger proportion of married rather than single people".

He also considers that an "inflexible approach" to a request by a woman to attend a clinic "may raise possible claims of sex discrimination on the basis that the treatment involved is specific to women and should be treated as pregnancy under the Equal Treatment Directive".