By Natasha Hammond-Browning
Uterus transplantation first hit the headlines in 2014, with the birth of the first baby born following a uterus transplant. This first birth in Sweden has led to trials worldwide. Most recently, in August 2023, the United Kingdom saw its first uterus transplant. In the United States, the University of Alabama (UAB) Medicine uterus transplant program is the first program to offer uterus transplantation outside of a clinical trial, and the first birth in that program was in May 2023.
While recent estimates of future uterus transplants are relatively small — for instance, Womb Transplant UK estimates that between 20-30 uterus transplants could be performed annually — the increasing number of uterus transplant recipients should not be ignored. In particular, questions of access and the workplace rights of those undergoing this surgery are important to consider. This post will briefly lay out some of the issues that may arise for potential recipients and their partners in the workplace.
Currently, all clinical trials, as well as the program at UAB, require recipients to be cisgender women, with their own eggs, and normally in a (heterosexual) relationship. I have previously considered how these criteria should be amended in order to expand the pool of eligible people, and how the numbers of those eligible will increase if or when selection criteria are expanded. These criteria directly impact access to uterus transplantation, however, there are other indirect factors, such as the ability fund the procedure and to work while undergoing the process, which also impact access.
As uterus transplantation increases, workplaces will be required to support their employees who are recipients. This is a lengthy process involving IVF, the transplant itself, the recovery period, and hopefully the subsequent embryo transfer and pregnancy. At some point in their transplant journey, recipients will also undergo a hysterectomy and recovery period; at the time of birth, post-birth, or possibly at a point at which the transplant is deemed unsuccessful.
Within the UK, maternity leave is a well-established right that employees are entitled to (although the length of time and amount of pay varies). Maternity leave is a statutory right in many other countries; these countries have policies in place that will apply equally to recipients of uterus transplants who give birth, as they would apply to any other employee who gives birth. However, the requirements of a person undergoing UTx will go beyond maternity leave entitlements.
The process of undergoing a uterus transplant may be more accurately described as a journey that may take between 2 – 5 years. During this time, recipients will need to attend multiple appointments, both pre- and post-transplant, which may impact their work and/or ability to work. Some employers may have policies in place that support employees undergoing IVF, and these would also apply to potential uterus transplant recipients while they are undergoing IVF, alongside any policies that support employees attending medical appointments. However, we cannot ignore that many potential recipients may be working in insecure employment (such as jobs that have zero-hour contracts — where the employer is not obligated to give the employee a minimum number of working hours), may not have policies in place to support extensive time away from work to attend medical appointments, or may work for an employer who unscrupulously uses necessary time away from work as a reason for dismissal (see an earlier post in this symposium for an exploration of these issues in relation to IVF treatment).
In the United Kingdom, it is against the law to discriminate against anyone who is pregnant or on maternity leave, as they are both protected characteristics under the Equality Act 2010. This should prevent unfair dismissal as well as any other form of discrimination within the workplace, although this protection only applies from when the pregnancy begins, so until any uterus transplant recipient becomes pregnant, they are not covered by this legislation. This could be problematic for employees, who potentially could be let go from their job at any point up until they become pregnant including after transplant but before an embryo transfer resulting in pregnancy. Protection against discrimination due to pregnancy or maternity leave in the workplace will vary in each country, but it is important that potential recipients of a uterus transplant are not discriminated against just as any other person experiencing pregnancy must not be discriminated against.
While uterus transplantation first occurred 10 years ago, it is still a relatively new and innovative medical treatment for absolute uterine factor infertility that the majority of people are not familiar with. When employers become aware of an employee undergoing this reproductive and transplantation journey, it is likely that they will need educating on what this process involves, how it impacts recipients, and how it will impact their ability to work. Employers should then be able to support their employee, and potentially alleviate some of the stress that recipients go through. It is acknowledged that some employers are still unable (or unwilling) to see and support their employees who are undergoing other more established fertility treatment, such as IVF or surrogacy, therefore there is the potential that some employers may continue this stance with respect to uterus transplant recipients.
Finally, it is important to acknowledge that while the focus of this piece has been on potential recipients, their access to uterus transplantation, and their workplace, all recipients so far have had partners who, while not undergoing the transplant themselves, will have attended many medical appointments and will also need time away from work to support their partner. As such, employers will need to have policies in place that will allow partners of potential recipients the time to provide that support and attend appointments as needed. Paternity or parental leave would apply to those partners in the countries that have such policies in place, but the process to reach the moment of birth can be long, time consuming, and emotionally fraught, as well as physically and mentally exhausting. Employers will need to recognize that potential recipients and partners will need time away from work, and support from within the workplace.
Natasha Hammond-Browning is a Senior Lecturer in Law at Cardiff Law School.
