What is IVF treatment

The first reported birth of a child conceived by ‘in Vitro’ fertilization (IVF) was in 1978.IVF alongside other Assisted Reproduction Technologies have since then become accepted practices to medically treat genetic or fertility issues. The IVF practice aims to improve the frequency of pregnancies by implanting a fertilized ovum in the endometrium, although no assurances can be provided for the outcome of the procedure. It is proven that stress can negatively impact the mental health of the patient. Hence, it is of paramount importance that women feel safe and protected by the law against any form of discrimination relating to their decision to engage in IVF.

When does pregnancy start

The start of the pregnancy for IVF patients is different than the start of an ‘in utero’ pregnancy. It is utterly necessary to consider when a pregnancy occurs for IVF patients as it is of defining nature for the rights of the patients and the responsibilities of an employer, especially in relation to dismissal.

The question of when a pregnancy ‘in vitro’ occurs, was referred to the European Court of Justice as it arose in the noble case of Sabine Mayr v Bäckerei und Konditorei Gerhard Flöckner OHG.

The court emphasized that their jurisdiction is confined to questions of law and not the ethics of the question. With this in mind, the court held that ‘the prohibition of dismissal of pregnant workers provided for in Article 10(1) of that directive must be interpreted as not extending to a female worker who is undergoing in vitro fertilisation treatment where, on the date she is given notice of her dismissal, her ova have already been fertilised by her partner’s sperm cells, so that in vitro fertilised ova exist, but they have not yet been transferred into her uterus.’  

Therefore the start of the ‘in vitro’ pregnancy occurs after an embryo has been implanted. The reason for this decision is that fertilized ova can be stored, in some countries, for up to ten years. If the court were to extend the meaning of ‘pregnant’ women to include IVF patients before the stage of the implantation, then it could delay a dismissal for up to ten years.

It can be seen that IVF patients in Cyprus can only be protected against unfair dismissal under the Article 10 of the Council Directive 92/85/EEC Article 10 (Directive 92/85) and consequently The Protection of Maternity Laws, only when the implantation stage has commenced.

Rights before pregnancy

There is currently no specific statutory protection and rights specifically afforded to women undergoing IVF or their partners.

The process itself can be time consuming and significantly impact the mental health of the patient. The employer must not consider any appointments or sick leave as part of the IVF procedure but instead as any other medical appointment. On the part of the employee, she must follow the employer’s sick policy and it is advisable to inform the employer about engaging in IVF as early in the process as possible to avoid any disciplinary procedures. Irrespective of whether a woman undergoing IVF is pregnant, she is able to make a sex discrimination claim if dismissed or subjected to detriment for reasons relating to IVF.

As will be explained below, in the case of Sabine Mayr v Bäckerei und Konditorei Gerhard Flöckner OHG the court held that the IVF did not fall under Article 10 of the Directive 92/85 but it maintained that the dismissal was illegal because of its discriminatory nature.

Specifically under Article 2(1) and 5(1) of Council Directive 76/207/EEC (Directive 76/207).

 ‘the dismissal of a female worker who, in circumstances such as those in the main proceedings, is at an advanced stage of in vitro fertilisation treatment, that is, between the follicular puncture and the immediate transfer of the in vitro fertilised ova into her uterus, inasmuch as it is established that the dismissal is essentially based on the fact that the woman has undergone such treatment’

In the British case of London Borough of Greenwich v Robinson, the Court pointed out that any treatment that had disproportionate impact on women was discriminatory and in opposition to the Sex Discrimination Act 1975.

Similarly, in the case of Joyce v Northern Microwave Distributors LTD, the court held that even assumptions made against a woman who undergoes IVF, i.e. that she would subsequently become impregnated and be absent from work, constitute discriminatory behaviour, that a man would have not been subject to.

Rights after pregnancy

Despite the fact that not all IVF procedures result in successful pregnancies, the Directive 92/85, provides safeguards for pregnant women in employment.

As discussed above, once the fertilised ova is implanted into the uterus, then a woman undergoing IVF is legally pregnant. The Protection of Maternity Laws of 1997 (100(I)/1997) provides for the right to take time off for antenatal care which includes appointments in relation to the IVF treatment. Condition for this is that the employee gives early notice to her employer and that she provides certification from her doctor.

Another key aspect of the question to be explored is whether an employer can dismiss a pregnant worker. The answer can be extracted from the Directive 92/85, which provides for the prohibition of dismissal during the period from the beginning of their pregnancy to the end of the maternity leave, but for exceptional cases that:

(a) are not related to the condition of the worker;

(b) are in line with the grounds for dismissal under national law, and

(c) the competent national authority has given its consent.

Then again, if the employment of a female worker is terminated during the aforementioned period, the employer is under the obligation to provide in writing, true and valid grounds for her dismissal.

In line with and deriving from the directive, the equivalent legislation enacted in Cyprus is The Protection of Maternity Laws of 1997 (100(I)/1997) (Maternity Protection Laws). It is an express provision that the dismissal or notice of dismissal to a pregnant worker is prohibited if the worker has notified her employer in writing. It is therefore advisable for women whose treatment was successful to inform their employer in writing about their pregnancy as soon as they find out, so that the statutory protection can commence.

The national legislation, complementary to the Directive 92/85 introduced an additional safeguard for pregnant workers by extending the period of the prohibition of dismissal, for up to five months after the end of the maternity leave. It must also be noted that the non-renewal of a pregnant worker’s employment contract for a reason associated with her condition is illegal under national law.

Moreover, the Maternity Protection Laws arm pregnant women against unlawful dismissal even if the worker has been notified of her dismissal or the dismissal has already taken place. Specifically, it asserts that if an employer is orally informed personally by a worker, or in any way of the pregnancy of the latter, then a dismissal ought to be repealed. Condition for the repeal is that the worker provides a valid medical certificate of her pregnancy, within five working days since the day of the notice of her dismissal or the dismissal.

Changing Your Work Pattern to Accommodate IVF Treatment

Women undergoing IVF are under Directive 92/85 “are not obliged to perform night work during their pregnancy and for a period following childbirth which shall be determined by the national authority competent for safety and health, subject to submission, in accordance with the procedures laid down by the Member States, of a medical certificate stating that this is necessary for the safety or health of the worker concerned.” This allows women to request a transfer to daytime work. If this is not objectively or technically feasible women can request leave from work or an extension of maternity leave. Therefore, it would be sensible for pregnant women who wish to change their work pattern, to discuss which resolution is objectively suitable for their situation.

In relation to women who engage in IVF treatment but are not pregnant, there is no specific provision for flexible working as IVF procedures can be lengthy. Despite the lack of statutory provisions, the EHRC’s Employment Statutory Code of Practice it is states that: “it is good practice for employers to treat any request for time off for IVF treatment sympathetically and consider adopting a procedure dealing with such requests, perhaps including allowing women to take annual leave or unpaid leave in order to receive treatment.”  It must be noted however, that this is a suggestive rather than binding.

In conclusion, the rights of women undergoing IVF are dependent on whether a legal pregnancy as explained above has occurred. The rights before a pregnancy are provided for by Directive 76/207 and the national legislation on The Equal Treatment for Men and Women in Employment Law of 2002 which include, inter alia, protections against sex discrimination. Continuing, the rights after a pregnancy include protection against the dismissal of pregnant women, time off for antenatal care and the ability to request a flexible working pattern if the person seeking the change works at night. Notably, it is illegal to dismiss a woman who in IVF, for reasons relating to IVF, regardless of whether she is pregnant.