The »ice embryo« Emma Gibson
Little Emma Gibson weighed three kilograms and was 50.8 cm long and 24 years old when she entered the world a few months ago in Tennessee (USA) with these presumably record-breaking numbers. After spending 24 years as a deep-frozen embryo, she was carried to term by a 25-year-old American. The mother and her child were therefore almost the same age at the time of birth. Her parents examined almost 300 donor profiles and, using the height and weight of donors as points of orientation, selected the »ice embryo« Emma. This method made it possible for the Gibsons to become parents, even though they were biologically incapable of doing so. This form of artificial insemination, also known as as »social freezing«, is a trend that is coming to Europe from the US. It promises women completely new levels of freedom when planning their careers and their futures.
Everything is made possible thanks to so-called in vitro fertilization, during which extracted egg cells are fertilized with prepared sperm, and the embryos are then transferred to a woman’s uterus. This process involves several steps, including hormonally stimulating the ovaries (with the goal of causing several eggs to ripen at the same time), follicle puncture, removing the egg cells, fertilizing one or more egg cells with prepared sperm, transferring the fertilized egg cell(s) to the uterus (embryo transfer), and nidation. According to the Embryo Protection Law enacted on December 13, 1990 (last amended on November 21, 2011), fertilized egg cells can be frozen for an indefinite period and – as was the case with Emma Gibson – can even be successfully inserted (»transferred«) into the uterus even as late as 24 years later.
Beginning of the special protection against dismissal
Readers interested in employment law are probably wondering: Can a female employee put the special protection against dismissal, as stated in Section 9 Para. 1 (1) of the Maternity Protection Act (MuSchG), »on ice«?
The Federal Labour Court addressed this question in its ruling dated March 26, 2015 (2 AZR 237/14). In a personal meeting on January 14 or 15 of 2013, the plaintiff in that case disclosed to her employer that she had wanted children for several years and that she would be attempting in vitro fertilization again in the near future. In a letter dated January 31, 2013, the employer then terminated the employment relationship in due time as of March 31, 2013. Employment protection legislation did not apply to the small business run by the employer. On February 7, 2013, it was determined that the plaintiff was pregnant, and she informed her employer of this on February 13, 2013. The embryo transfer had taken place on January 24, 2013. The plaintiff gave birth to a daughter on October 1, 2013. But at what point was the special protection against dismissal effective under Section 9, para. 1 (1) of the Maternity Protection Act, which states that the effective dismissal of a pregnant woman requires official approval?
Determining the beginning of special protection against dismissal during pregnancy
In human medicine, the term »pregnancy« is used to refer to a woman’s condition from conception (the intercourse leading to fertilization) to birth. The length of a pregnancy is determined either using an average of 280 days starting on the first day of the last menstruation or using an average of 263 to 273 days from conception until the day of birth. The calculation depends on whether the woman’s physical state or the beginning of the new life is used, among other things. For »naturally« induced pregnancies, the Federal Labor Court (BAG) (see the ruling dated May 12, 2011, 2 AZR 384/10) determines the beginning of protection against dismissal based on Section 9, para. 1 (1) of the Maternity Protection Act by counting back 280 days from the medically diagnosed and conjectured day of birth. This period encompasses the longest amount of time during which a pregnancy can exist in the event of a normal cycle. It also includes days during which pregnancy is quite unlikely. Employers can call the validity of a conjectured delivery date into question by establishing circumstances and proving that, on their basis, the assumption that a woman was pregnant before the employment relationship was terminated would contradict scientific knowledge. In this unlikely case, the employee may be required to release her doctor from their duty of confidentiality.
In vitro fertilization is an exception
The 280-day rule does not apply to in vitro fertilization. This is the case because the individual steps leading to pregnancy can be precisely determined when artificial insemination is involved. Therefore, there is no need to select the longest period of time possible to make sure a woman who was actually pregnant is protected by the special protection against dismissal. To keep a woman from putting her special protection against dismissal »on ice«, the time at which the egg cell was artificially inseminated with (prepared) sperm is not used. That is because the special protection against dismissal as in Section 9, para. 1 (1) of the Maternity Protection Act could be effective for several years if that were the case, as was spectacularly illustrated by Emma Gibson. For in vitro fertilization, the Federal Labor Court specifies the time of the embryo transfer (Federal Labor Court, ruling dated March 26, 2015, 2 AZR 237/14) and not the time of successful nidation, which occurs later. That is because the earliest possible beginning of a pregnancy must be used in order to guarantee that every pregnant employee is safe and protected against dangers in the workplace, excessive demands, and damage to health according to European legal provisions. That is the point in time when the fertilized egg cell unites with the organism of the mother-to-be via embryo transfer. Thereby, the point in time is reached that corresponds to the relevant stage of natural fertilization. As far as natural conceptions are concerned, pregnancy also begins at the time of conception and not the subsequent nidation.
So-called social freezing may pose moral challenges for our society. The matter has already been settled in terms of employment law. Special protection against dismissal as in Section 9, para. 1 (1) of the Maternity Protection Act begins when an embryo is transferred to the body of the expectant mother and therefore cannot be put »on ice«.