ABSTRACT
This chapter examines the experiences of those undergoing ART treatments through the intersecting lenses of gender and disability, drawing from Schiek’s intersecting nodes approach. The competing tensions between equal treatment and recognising difference inherent within sex discrimination are examined, focusing on pregnancy, which is at the intersections of gender and disability. The rationales underpinning pregnancy discrimination protection are similar for those undergoing ART treatments, suggesting that this provides a useful comparative framework. However, attempts to extend this have failed because it is limited to pre-existing pregnancy. Revisiting the boundaries of sex discrimination is identified as offering the greatest potential to reinterpret the boundaries and extend protection here. This was attempted in Case C-506/06 Mayr but was limited by focusing on the sex-specific nature of treatment alone. Adopting an intersectionality approach which recognises both the inherently gendered experience of undergoing treatment and frames this in terms of childbearing capacity, thus requiring accommodation, is necessary for developing protection further. Such an approach has emerged in the US and comparisons are drawn with this. Similar attempts to extend associative discrimination to pregnancy have emerged in Scotland, suggesting that the broader interpretation sought here is possible.
