Assisted Reproduction, Discrimination, and the Law

The numbers of women undergoing Assisted Reproduction Technology (ART) treatments have risen steadily, yet they remain largely outside the scope of equality and employment law protection while undergoing treatment. Assisted Reproduction, Discrimination, and the Law examines this gap in UK law, with reference to EU law as appropriate, and argues that new conceptions of equality are necessary. Drawing from the literature on multidimensional and intersectional discrimination, it is argued that an intersectionality approach offers a more useful analytical framework to extend protection to those engaged in ART treatments. Drawing from Schiek’s intersectional nodes model, the book critically examines two alternative interpretations of existing protected characteristics, namely infertility as a disability, with reference to the social model of disability and the UN Convention on the Rights of Persons with Disabilities 2006, and redefining the boundaries of pregnancy and/or sex discrimination, with reference to attempts to extend associative discrimination to pregnancy. Comparisons are drawn with the US, where infertility has been recognised as a disability under the American’s with Disabilities Act 1990 and as a pregnancy-related condition under the Pregnancy Discrimination Act 1978. A specific right to paid time off work to undergo treatment is also proposed, drawing comparisons with the US Family and Medical Leave Act 1993 and the existing UK work-family rights framework. It is argued that the reinterpretations of equality law and the rights proposed here are not only conceptually possible, but could practically be achieved with minor, but significant, amendments to existing legislation.

Chapter 1: Introduction Introduction Assisted reproduction Technologies (ART) treatments Assisted reproduction, discrimination and the law Chapter overviews Chapter 2: Current conceptions of equality and the limitations for those involved in assisted reproduction Introduction Pre-conception protection: the limitations of EU and UK law Childcare rights: Commissioning mothers in surrogacy The jurisprudence on commissioning mothers The Children and Families Act 2014 A multidimensional, multiple or intersectional approach towards equality law? Multidimensional discrimination and the legal framework Setting the theoretical frame: ART treatments and intersectionality Conclusion Chapter 3: Conceiving a more social model of disability: infertility as disability Introduction Intersectionality, Infertility and models of disability Infertility and the medical model of disability Infertility and the limitations of the EU interpretation of the social model of disability Reinterpreting disability: adopting an intersectionality approach Infertility as disability: the Americans with Disabilities Act 1990 Challenging the boundaries of disability Infertility as disability: reproduction confirmed as ‘a major life activity’ Reinterpreting disability: Lessons for the UK An alternative interpretation of disability Infertility and additional CRPD obligations Conclusion Chapter 4: Conceiving a new interpretation of pregnancy and sex discrimination: redefining the boundaries Introduction Intersectionality and the boundaries of gender discrimination Pregnancy discrimination: from gender equality to specific rights The limitations of pregnancy discrimination Sex discrimination revisited Redefining the boundaries: adopting an intersectionality approach The Pregnancy Discrimination Act 1978 From ‘a related medical condition’ to a focus on childbearing capacity Redefining pregnancy-related discrimination in the UK Reinterpreting pregnancy Associative pregnancy discrimination Conclusion Chapter 5: A right to time off work to undergo ART treatments Introduction Combining work and ART treatment: without a legal framework Statutory sick pay The right to request flexible working Rights to time off during the ante-natal period A right to medical leave The Family and Medical Leave Act 1993 A right to time off work to undergo ART treatments: Possibilities for the UK Conclusion Chapter 6: Conclusions Introduction Recognising alternative routes to parenthood Recognising the social value of procreation Overcoming barriers Adopting an intersectional analysis Recommendations Conclusion Index

Dr Michelle Weldon-Johns is a lecturer in Employment Law at Abertay University in Dundee. Her specific research interest is the boundaries between work and family life from UK and EU employment and equality law perspectives. Her research focuses on gender equality and the work-family conflict, particularly from the perspectives of working fathers and atypical working families. She has also written on the potential implications of Brexit for Scotland in the employment and work-family context.