New Protections for Fertility Treatments in Belgium

Millions of people throughout the world are expected to deal with some sort of fertility issue during their lifetime, and many of them will require time away from work. A new draft bill to extend protections to Belgian employees going through fertility treatments was recently approved by Belgium’s Parliament and became law on April 28. 

“There is still a stigma associated with infertility, so, if there are no clear regulations of support, many people just do not tell their employer because they just find it too personal,” said Anita Fincham, advocacy manager at Fertility Europe, headquartered in Evere, Belgium.

What the New Legislation Entails

The new legislation states that employees going through fertility treatments can provide their employer with a medical certification, which allows the employee to be protected from dismissal for up to two months from the time the employer is notified. If the treatment will take longer than two months, the employee must submit another medical certification at the end of the initial two-month period. 

The new protections mean that employers cannot dismiss employees while they are undergoing fertility treatments, unless they can prove that the dismissal was not related to the treatments or the related absences from work. The burden is on the employer, not the employee, to prove the dismissal was justified. 

“If you are an employer and you want to terminate, it means in practice that you need to be able to demonstrate that, for example, the termination is related to performance issues and is related to objective reasons for the company and economic reasons for the company,” said Christophe Delmarcelle, an attorney with Del-Law in Brussels.

Proponents of the legislation said the protection is necessary because treatments can often cause employees to miss work.

“There is worry that because the treatment is so unpredictable, in terms of time and energy it takes, that it will put [employees] in a vulnerable position for, if not being fired, then missing any progress, not being given interesting projects, or not given the pay rise or a promotion,” Fincham said.

Some Questions Remain

This legislation has been in the works for a long time, with an initial form proposed back in 2011. At the time, the bill also had a section that guaranteed employees their salary during time off for fertility treatments. However, the legislation in its current form no longer has those salary guarantees. 

Political disagreements held up the bill, so the final version left the salary issue unaddressed and therefore unprotected. In Belgium, besides Parliament, there are also social partners who are the representatives of the employers and employees. There is hope that this topic might be revisited in the future and that salaries might be guaranteed through the power of the social partners, rather than through the law. 

The bill also doesn’t put forth a definition of what actually qualifies as a fertility treatment, so it might be applied broadly. “When you read all the preparatory words of the Belgian Legislature, you can understand that the aim of the bill is to have a broad scope of application,” said Loïc Timmermans, an attorney with Liedekerke in Brussels. “In practice, I think that if you have a medical certification, there will not be so much discussion about whether it's falling under the scope or not, because a health practitioner will already have confirmed that it’s a fertility treatment.”

Katie Nadworny is a freelance writer in Istanbul.