Special protection against termination according to the Maternity Protection Act for in-vitro-fertilisation
> May 2015
Expectant mothers are known to have special termination protection in an employment before and after the birth of their child. According to § 9 para. 1 Maternity Protection Act (Mutterschutzgesetz; MuSchG), termination of an employment during the employee's pregnancy and up to the end of four months after childbirth is not permitted.
Commencement of the pregnancy is not determined according to a biological point of time. It is instead defined as the beginning of a time window of 280 days before the day of birth calculated by a doctor according to the jurisdiction of the Federal Labour Court (Bundesarbeitsgericht; BAG). The BAG now had to decide on the question of when termination protection starts at in-vitro fertilisation. In this case, the employee had informed the employer of the pending in-vitro fertilisation and insertion of the fertilised ovum. The employer terminated her employment briefly after implantation of the fertilised ovum but before successful implantation of the ovum in the employee's uterus.
The BAG now decided that the definition of pregnancy according to § 9 MuSchG was exclusively according to the time of insertion of the ovum instead of the – later – time of successful implantation of the ovum in the uterus in in-vitro fertilisation.
Accordingly, the termination was not valid, since the fertilised ovum had already been inserted at the time and the employee was therefore deemed pregnant, leading to the legal consequences of § 9 para. 1 MuSchG.
Result:
The special termination protection applies from the time at which the fertilised ovum is inserted in case of in-vitro fertilisation.
