For many, planning to start a family can be an arduous journey. The challenge of infertility is often not understood by employers, with often damaging consequences.

The American author Shauna Niequist once described the harrowing experience of undergoing fertility treatments. She said, “I found that each time a test was negative, it stopped the dreaming and hoping for a while. 

“Taking the test was a way of puncturing the balloons of hope because if I didn’t, they would lift and lift without any evidence, and their falling back down every month was too painful. Essentially, I took all these tests to keep myself from hoping, because the hoping was breaking my heart.”

As assisted reproductive technologies (ART) gain pace, we must keep up. What is apparent is that there is a disconnect between labour laws and this surge in ART.

According to research from the community interest company, Fertility Matters Work, 74.2% of employees surveyed didn’t feel that the topic of fertility was recognised in their organisation. Moreover, 61.1% didn’t feel confident talking to their employer about trying for a baby, while 69.5% took sick leave for treatment.

In 2023, Burgess Mee Family Law became the UK’s first fertility-friendly employer. The practice argued that fertility issues and treatments and baby loss can be mentally, emotionally and physically draining. The firm subsequently introduced a fertility policy, miscarriage and baby loss policy and fertility benefits policy across the firm. Yet, even globally, Burgess Mee Family Law is an outlier.

In South Africa, little has been done in this area.

Nationally, infertility occurs in 15 to 20% of the population. While the Basic Conditions of Employment Act provides certain provisions for different types of leave, such as annual, sick, maternity and family responsibility, it does not typically cover fertility treatments.

What is apparent is that a call for workplaces in South Africa to have fertility policies is required. This can be achieved through a code of good practice in the Labour Relations Act (LRA). There is certainly precedence for this. For instance, there is a code of good practice on preventing and eliminating harassment in the workplace in the LRA, and workplace sexual harassment policies.

Code of good practice

Notably, a code of good practice is not legally binding, but instead serves as a guide for employers and employees to promote fair and equitable practices. It can complement existing legislation and provide practical guidance for employers to support employees undergoing fertility treatments while maintaining productivity and a respectful work environment.

Creating a code of good practice for fertility leave in South Africa would require an intensive consultative and collaborative process involving various stakeholders.

Initially, this would require a working group of government, labour unions, employer associations, medical professionals and advocacy groups focused on fertility issues to shape the code of good practice. 

Thorough research would be required to understand the needs and challenges related to fertility treatment in the workplace, alongside reviewing existing international guidelines or codes of practice on fertility leave.

For instance, Sweden and Germany have a comprehensive parental leave system that includes ART leave, while Spain provides specific leave for fertility treatment.

Then, the scope and key areas that the code of good practice should cover would have to be determined, including factors such as provisions for leave entitlement, eligibility criteria, duration of leave, the relationship between fertility leave and other forms of leave, confidentiality and privacy considerations and procedures for requesting and granting leave.

Once the code of good practice is finalised after this extensive consultative process, it must be made easily accessible. Additionally, a mechanism to monitor the implementation and effectiveness of the code would be required.

As fertility treatments evolve and ARTs become more commonplace, legislation and workplaces alike must adapt. There is demonstrably an argument to be made for adopting a code of good practice for fertility-friendly policies in the workplace.

As the author of “Manifesting Motherness: Healing from Infertility”, Rekha Ramcharan, said, “What if infertility isn’t a war but an awakening? What if it’s not about death, but about a renaissance?”

These policies could well be the renaissance. DM