Large corporate American firms, Apple and Facebook, have offered a new service to their female employees. They are offering to pay female employees to have their eggs frozen in an effort to attract more female staff. In essence, these companies are offering women the option to subcontract their reproductive abilities to their employers. For a woman desiring a big promotion and a baby this might seem like the perfect solution – however, it does not come without its risks.

Discrimination against women 

In an effort to attract and retain talented young women, Apple and Facebook run the risk of facing large discrimination claims and may have taken one step too far.

Whilst Apple and Facebook say that they are offering this benefit to attract more women to their staff, it could have the opposite effect. It could be interpreted as putting pressure on women not to have children in the early stages of their careers. If younger women think that their careers will suffer if they decide to have children, they may choose not to work for that employer.

Women are in a very difficult situation and sometimes feel that the one thing holding them back from climbing the corporate ladder is their biological clock. It could be argued that big technology firms like Facebook and Apple are levelling the playing field (in what is already a very male dominated sector). These companies are ‘facilitating’ the decision making for the work/life choices which women have to make.

It can be seen that women are quickly rising in the world of technology – is Facebook’s and Apple’s offer simply a ploy to retain female staff or are there other benefits for them as employers which they are not admitting to?

There are undoubtedly benefits for employers in encouraging women to have children at a later stage in their career. More senior employees will be earning more and so will be more able to afford childcare bills, meaning that there will be fewer childcare related problems for the employer to manage.

What about men?

But what about men? If these companies are offering such an added benefit to all female employees – surely men should be provided with a similar incentive?

Employers considering offering egg freezing benefits need to be careful about gender discrimination. Discrimination laws protect men, as well as women. It is therefore unlawful under the Equality Act 2010 to treat a man less favourably than a woman in the same circumstances. Offering to pay for egg freezing for women but not offering to pay for a man’s sperm to be frozen could amount to unlawful direct sex discrimination. There is no scope for an employer to justify direct discrimination and so arguments that the benefit is intended to attract women to work for them will not help.

It is understandable that employers with a disproportionately low number of women amongst their staff are entitled to take proportionate measures to address their under-representation. However, this is unlikely to justify only offering to pay for fertility treatment for women. It may not actually attract more women into the business. In addition, there are likely to be more proportionate ways of achieving this, such as enhanced maternity benefits.

What happens when it goes wrong?

Freezing eggs is a very big decision for a woman to make and can have serious repercussions. Experts continuously disagree about the ideal age to freeze your eggs. Some would say it is unnecessary to freeze your eggs at the age of 25 – however there are often risks if a woman waits to start a family later in life.

If Apple and Facebook are suggesting that they will happily pay for this process – will they permit the extra amount of leave which the woman will require while undergoing the process and dealing  with possible side effects? More often than not women need at least a week to recover from the process. Failure to treat such absence in the same way as any other sick leave could also amount to sex discrimination.

There is no guarantee that the procedure will work. The success rate always varies and is dependent on a variety of factors. Approximately 5- 15% of frozen eggs are no longer viable when they have been thawed. So who will be accountable? Will Apple and Facebook face claims as a result?

It is an interesting proposal – but it does come with serious risks. Apple and Facebook (along with other companies who are offering this service) need to be careful to avoid gender discrimination claims and other legal repercussions. They need to promote other options and support for women who want to have a baby and continue their careers. As of April 2015 Shared Parental Leave will come into place in the UK providing a lot more options for expectant mothers and fathers to take time off to care for their child in the first year of its life.

Jessica Corsi is partner at UK’s largest employment law firm Doyle Clayton

Jessica Corsi, partner, Doyle Clayton