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IVF Treatment and Sex Discrimination

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[Thanks to Caroline Musgrave of Cloisters for providing this case summary]

The EAT (Underhill P) has handed down its decision in Sahota v Home Office, which considers whether IVF treatment should be treated as equivalent to pregnancy for the purposes of the Sex Discrimination Act such that a comparator need not be identified.

The appeal failed for different reasons but the EAT expressed their view on the comparability of IVF treatment and pregnancy as follows:

  • The woman undergoing IVF treatment is clearly to be regarded as pregnant for the period following the implantation of the fertilised ova until the end of the protected period as set down in s.3A(3)(a)(i)-(iii) SDA.
  • Prior to implantation, less favourable treatment of a woman on the ground that she is receiving IVF treatment may constitute sex discrimination during the limited, closely defined, period set down by the ECJ in Mayr v Backerei und Konditorei Gerhard Flockner OHG [2008] IRLR 387. The period in question is the advanced stage between the follicular puncture and the immediate transfer of the in vitro fertilised ova into the uterus. The EAT did not accept that there should be a wider period of protection.