Assisted Reproduction, Discrimination, and the Law  book cover
1st Edition

Assisted Reproduction, Discrimination, and the Law

ISBN 9781032240206
Published December 13, 2021 by Routledge
146 Pages

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Book Description

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.

Table of Contents

Chapter 1: 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


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


Chapter 3: Conceiving a more social model of disability: infertility as disability


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


Chapter 4: Conceiving a new interpretation of pregnancy and sex discrimination: redefining the boundaries


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


Chapter 5: A right to time off work to undergo ART treatments


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


Chapter 6: Conclusions


Recognising alternative routes to parenthood

Recognising the social value of procreation

Overcoming barriers

Adopting an intersectional analysis




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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.