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Employers offering egg-freezing entering a minefield

Date: 06/12/2017

It just seems wrong! There are companies in Silicon Valley who actually pay for their female employees to freeze their eggs, apparently to defer child birth and rearing.

This controversial practice appears to have started at Facebook, which announced the policy in 2014. Since then, other companies, including Google and Apple, have followed suit. Now, there is talk in Australia of companies offering the same “benefit” after the first designated egg-freezing clinic recently opened in that country.

The rationale espoused by these employers is that by providing financial assistance to employees who choose to freeze their eggs, they are supporting women who want to focus on their careers, and as such, retaining valued employees. Presumably these companies have done the cost benefit analysis.

However, the policy has also been broadly criticised. Rather than empowering women to choose if and when they have children, many commentators say that the policy creates an uncomfortable set of expectations.

From a legal and human resources perspective, this issue also opens a veritable Pandora’s box of issues.

Firstly, by providing financial support to women who choose to freeze their eggs, employers risk creating a perception that women who sacrifice having children to put their career first will be treated more favourably than those who don’t. This could give rise to claims of discrimination under the Human Rights Act by employees who choose to have children, whilst also continuing to work.

Employers thinking of introducing this policy would also need to tread carefully in determining who would be eligible to receive such financial assistance. If an employer decided to restrict the policy by reference to gender, age or relationship status, there would be a strong claim that it had breached the prohibited grounds of discrimination under the Human Rights Act.

And if an employer chose to make the “benefit” available only to female employees, male employees could potentially claim that they were being discriminated against, and that they too should receive financial assistance to freeze their sperm, or for their partners to have their eggs frozen.

Further issues could arise where an employee fell pregnant after she had been provided with financial assistance to freeze her eggs. What recourse would the employer have after forking out $9,500 for the procedure? What, if any undertakings could the employer ask the employee to provide as a condition of receiving the payment? For example could the employer require the employee to make all reasonable endeavours not to get pregnant?!

Could employers enforce a bonding arrangement whereby an employee would be required to reimburse the cost of the procedure if they fell pregnant within a certain period of time? These are all complex legal questions and are unchartered territory as far as New Zealand law is concerned.

Another significant legal issue would arise where an employee, who felt pressured to freeze her eggs, was later not successful in falling pregnant. This could give rise to personal grievance claims of unjustified disadvantage against the employer and a claim by the employee for compensation for humiliation and distress.

There is also likely to be an impact on workplace culture, and the types of messages being conveyed to employees. In New Zealand most workplaces are at least attempting to move towards a family friendly environment. In contrast this practice seeks to encourage employees not to breed until it is convenient. It suggests that having children is somehow an impediment to career progression.

Whether or not New Zealand employers decide to follow suit and introduce this practice remains to be seen – egg freezing is currently available in New Zealand.

What is clear though is that any employers who are thinking of introducing this practice will need to think very carefully about how to do so in a legally compliant and culturally appropriate way. Until these issues are properly worked through, the whole thing looks fraught.