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Thematic Issue: Vulnerability and the Law

In Vital Need of Reform: Providing Certainty for Working Women Undergoing IVF Treatment


Thomas Hvala

Currently, leave for IVF treatment is not a legitimate use of personal leave under the Fair Work Act 2009 (Cth), as women undergoing treatment are neither ‘ill’ nor ‘injured’. As a result, there is significant uncertainty regarding the use of personal leave by women undergoing IVF. Drawing on stakeholder interviews and broader societal contexts, this article evaluates which legal framework most appropriately assists women seeking IVF treatment. Two areas of law are considered. First, this article argues that anti-discrimination frameworks, whilst applicable, are unconvincing. Second, looking to employment law, this article advocates amending the National Employment Standards to introduce paid leave provisions for women receiving IVF treatment. Modern awards and enterprise agreements are also discussed. This article concludes by identifying options for further exploration in order to ensure that the unconditional right for women to have children is not only recognised, but fulfilled.

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(2018) 41(3) UNSWLJ 901: