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Bar News - April 19, 2013

Labor & Employment Law: Infertility and Employee Rights: A Complex Legal Landscape


Many fertility treatment procedures require patients, especially women, to be available for numerous medical appointments on short notice, forcing employers to navigate a complex web of laws related to the rights of employees undergoing such treatment.

Are same-sex couples who use in vitro fertilization entitled to the same employee protection as heterosexual couples? Does an expectant mother using a surrogate gestational carrier get maternity leave? Is pregnancy considered a temporary disability under the law? What about infertility? Some of the answers to these questions and the questions that remain unanswered may be surprising.

The Family Medical Leave Act (FMLA) provides that covered employers must grant leave for a "serious health condition" that prevents the employee from performing the job or to permit an employee to care for a spouse or child with a "serious health condition." FMLA also provides for leave following the birth of a child. A "serious health condition" means a condition that requires continuing treatment by a health care provider and thus includes certain complications associated with pregnancy and fertility treatments. In addition, an "expectant mother" is entitled to leave for "prenatal care."

The Pregnancy Discrimination Act (PDA) prohibits covered employers from discriminating against employees based upon "pregnancy, childbirth, or related medical conditions." Many, but not all, appellate courts that have considered this issue have ruled that infertility and fertility treatments are "related medical conditions" and protected under the PDA.

The Americans with Disabilities Act (ADA) and subsequent amendments provide that covered employers must grant reasonable accommodations, such as modified work schedules, to disabled employees. Employees are considered disabled when they have a physical impairment that substantially limits one or more major life activities; a complicated pregnancy can easily meet this criteria. The status of infertility under the ADA is less clear.

The US Supreme Court has ruled that an employee is not protected under the ADA if a corrective measure is available for the disability. Whether infertility is a condition that can be corrected by fertility treatment has not been conclusively addressed. To further complicate the situation, it is impossible to determine in advance whether treatment can be successful for a specific couple. Thus, the diagnosis and treatment phase must proceed without knowledge as to whether the disability is correctable.

Relevant New Hampshire Laws

RSA 354-A:7, I prohibits covered employers from discriminating against employees based on disability, which means a physical impairment that substantially limits one or more major life activities, such as reproduction. While the definition parallels that of the ADA, it is not clear if disabilities that are correctable are excluded from protection. RSA 354-A:7, VII.(a), similarly to the ADA, requires reasonable accommodations, which are defined to include modified work schedules. More specifically, RSA 354-A:7, VI.(a) prohibits discrimination based on "pregnancy and medical conditions which result from pregnancy" and imposes the same reasonable accommodations requirement.

It is important to keep in mind that, in some circumstances, infertility is a condition that results from pregnancy. For example, an ectopic pregnancy can cause the loss of a fallopian tube and lead to infertility. Less clear is whether infertility that results from childbirth, such as the loss of a uterus, is protected.

RSA 354-A:7, VI.(b) permits "a female employee to take leave of absence for the period of temporary physical disability resulting from pregnancy, childbirth or related medical conditions." RSA 354-A:7, VI.(c) additionally provides that "pregnancy, childbirth and related medical conditions" are temporary disabilities and that female employees affected by these conditions shall be treated in the same manner as other temporarily disabled employees. Infertility and fertility treatment arguably qualify as "related medical conditions" under these two laws.

Employers also need to be aware that not all persons using fertility treatments are medically infertile. For example, a male same-sex couple may be using in vitro fertilization (IVF) with an egg donor and gestational carrier simply because they lack a uterus, not because of infertility. However, another similarly situated couple may need to use IVF due to medical reasons, such as poor sperm morphology. Thus, it may be necessary to parse out the medical procedures that are performed for treatment of infertility to assess whether an employee is disabled under the relevant statute. Similarly, an unanswered question is whether age-related infertility qualifies as a disability.

An additional complexity arises from the fact that the brunt of the diagnostic testing and treatment is generally borne by the female partner, even when the male partner is the one with the diagnosis of infertility. Another unanswered question is whether the female employee would qualify as "disabled" in such circumstances.

If infertility is considered a "disability" under either the ADA or state law, then prospective parents undergoing fertility treatments are protected to the extent that the treatment is for medically-based infertility and thus would be entitled to modified work schedules. Separately, women who are infertile as a result of a prior pregnancy (and possibly as a result of childbirth) should be entitled under RSA 354-A:7, VI.(a) to modified work schedules to accommodate their treatment without an analysis of whether infertility qualifies as a disability.

Additionally, all females, including gestational carriers, would likely be entitled to leave under RSA 354-A:7, VI.(b) for physician-prescribed bed rest following embryo transfer. Additional legal protections would be available for any woman who suffers serious complications that rise to the level of a "serious health condition" or temporary "disability."

Egg and sperm donors are generally not entitled to protections. However, an egg donor could have complications qualifying as a "serious health condition" or a temporary "disability," such as Ovarian Hyperstimulation Syndrome resulting in hospitalization.

In addition, the issue of whether fertility treatment is "related" to pregnancy is unresolved, and the application of the PDA and certain state laws would hinge upon this issue. This issue is of particular importance for females who do not otherwise qualify for time off for their egg retrieval procedure or for females seeking protection from discriminatory treatment by their employers. If deemed "related," the application could also extend to egg donors for their participation in the ovarian stimulation process.

Surrogacy After Pregnancy

During pregnancy, the gestational carrier is entitled to the same protections as any other pregnant employee. This includes time off for prenatal care under FMLA, leave required for pregnancy complications under FMLA and state law, and flexible work schedules necessitated by pregnancy complications pursuant to the ADA and state law. Her spouse could also be entitled to FMLA leave to care for her. Both intended parents may also be entitled to FMLA leave to attend prenatal appointments, as FMLA grants this right to an "expectant mother" and also provides that FMLA leave shall apply equally to mothers and fathers.

The carrier would be entitled to leave for the birth and her physical recuperation under FMLA and state law. The intended parents would be entitled to leave, pursuant to FMLA, upon the birth of the child.

In this complex legal framework largely dependent upon specific facts and circumstances, employment lawyers need to have a firm grasp of the details of the fertility treatments at issue to sort out situations regarding this largely unsettled area of law.

Catherine Tucker, a solo practitioner in Concord, NH, handles fertility law matters exclusively and can be reached at She also blogs regularly on fertility law topics at

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