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Frozen eggs and Title IX

Mary Ann Mason, professor, Berkeley Law | May 19, 2016

Recently, I gave a research talk on work and family issues to a class of women MBA students at my university. Our UC Berkeley research team, the Do Babies Matter? project, had clearly identified when and how family formation affects career patterns for academic and professional men and women.

As usual in this talk, I discussed the “baby penalty” for young women entering fast-track professions. However, in the discussion afterward, a young woman volunteered a new topic which immediately captured the attention of the class: “I need advice. I’m planning to freeze my eggs — it’s very expensive and the procedure I hear is painful, but I don’t see how I can plan a family until my career is going well.”

vial of frozen eggsAnother student objected, “You don’t know if it will work at all: The technology is still sketchy.” Yet another chimed in, “I waited until I was 35. I thought I was young, but it was too late. It took five years to adopt.”

For these young women, this was an ordinary conversation, much like what their mothers and I, as part of the feminist wave of the ‘70s, would have held about the then new reproductive strategies: birth control pills and abortion. The possibility of freezing their eggs was spurred in part by the announcement in 2012 by the American Society for Reproductive Medicine that this procedure would no longer be considered “experimental” (their endorsement was partial and tentative).

The eggs freezing concept has been eagerly adopted by some companies. Egg-freezing parties sprouted up on both coasts when Silicon Valley giants Apple and Facebook announced that they would be making the expensive procedure (about $20,000) available to employees as part of the medical coverage. Paying career women to freeze their eggs has practical financial advantages for companies like Apple and Facebook. The obvious benefit is that these young career women are less likely to abandon or even pause their career track to have a family.

But frozen eggs offer an illusory promise. The most comprehensive data available reveals a 77 percent failure rate of frozen eggs resulting in a live birth in women aged 30, and a 91 percent failure rate in women aged 40.

The research on the outcomes of frozen (as opposed to fresh) eggs is slim. There is still concern about the viability of freezing and the effect on the health of the child. Until recently, the procedure was only recommended for cancer patients before beginning potentially-sterilizing chemotherapy, due to low success rates and high cost.

The combination of fertility drugs required to harvest the eggs and multiple-embryo insertions results in a high number of double, triple and even quadruple births. Multiples are vulnerable to cerebral palsy, learning disabilities, blindness, developmental delays, mental retardation, and infant death — largely because they are often born prematurely with very low birth weight. The infant mortality rates of twins are four to five times that of single births, and for triplets the rate is higher still.

Why take the risk?

Why are so many women willing to face these risks? In addition to the steep climb many new employees, particularly women, face in their first professional years, the career bound women MBA students who I talked with clearly understood the “baby penalty” that occurs if they have a child in graduate school prior to launching their career. The early years are the most decisive in determining who wins and who loses. Female graduate students and postdoctoral fellows (“postdocs”) who give birth are more than twice as likely as new fathers or than childless women to turn away from a career in science and all other fields in which they are receiving Ph.D.s.

book cover

Mary Ann Mason coauthored “Do Babies Matter?”

Most receive little or no childbirth support from the university and often a great deal of discouragement from their mentors. Currently, for many women graduate students who are in peak child-bearing years, pregnancy leave is granted at the discretion of their professor or adviser, if at all. With no clear university policies in place, students are left with the default, what I often refer to as the “kindness of strangers” policy. Strangers (the faculty gatekeepers, rather than clear cut university policies) are often not so “kind.”

As a UC doctoral student reported, “When I told my advisor I was pregnant he largely ignored me. He switched me off his high profile research project in genetics and gave me basically housekeeping chores in the laboratory.”

Jennifer Miller, who had her first child soon after completing her Ph.D. in neuroscience commented, “I don’t think I’ll ever be able to do a tenure track job… and people were very upfront with me when I had my child. Looking around me, I see that people are completely shut out of positions because of family.”

But are frozen eggs the answer? No, we can and must allow talented women to pursue their education and career dreams without the illusory promise that they can wait indefinitely before starting a family.

There is reason to hope. Our Do Babies Matter? research project also revealed that Title IX specifically covers pregnancy discrimination in education. The comprehensive anti- gender discrimination law, enacted in 1972, was for years known only for increasing the numbers of women and girls in sports, and is now being invoked across the country by survivors of campus sexual assault. According to the Title IX regulations, pregnancy discrimination is prohibited in admissions, hiring, coursework accommodations and completion, pregnancy leave policies, workplace protection and health insurance coverage in educational programs and activities.

Until recently almost no attention has been given to the needs of pregnant students in higher education; graduate students and postdocs who are in their prime childbearing years are probably unaware that Title IX covers pregnancy discrimination. So are many administrators. So was I. Although I was the Graduate Dean at tUC Berkeley, I only became aware of this coverage well into my administration when I discovered it through our Do Babies Matter? project.

New protections

But times are changing. Last year California governor Jerry Brown signed a new law to insist upon Title IX compliance in pregnancy discrimination and implement leave policies. The legislation quoted our Do Babies Matter? research and we supported it in testimony before the legislature.

book cover

Based on longitudinal research that tracked Ph. D. students and women in professions such as law, medicine, and business, this book by Mary Ann Mason and her daughter Eve documents how generations of women have veered off the career fast-lane after having children.

We said in part: “Women who are married with children in the sciences are 35 percent less likely to enter a tenure track position after receipt of their Ph.D. than married men with children, and they are 27 percent less likely than their male counterparts to achieve tenure upon entering a tenure track job. The same phenomenon has appeared in non-STEM fields, as studies indicate that married mothers who earn Ph.D.s are 28 percent less likely to obtain a tenure track job than are married men with children who earn Ph.D.s.”

The first such state law to be enacted, the bill orders compliance with Title IX’s protection of graduate student women against pregnancy discrimination and offers protection beyond the explicit scope of Title IX. The bill requires California colleges and universities to provide a minimum of twelve months of leave for graduate students for pregnancy or childbirth. It also includes leave for fathers and partners who are not the birth parent.

This is a step far beyond Title IX, which only requires universities to provide leave for pregnancy, childbirth and related conditions for as long as medically necessary. Both Title IX and the new California law require that students who take this legally protected leave be allowed to return in the same status they held when they left; a far cry from current practice of some institutions that make students reapply as if they never even attended the school.

The law also provides extensions for normative time, and time to take preliminary and qualifying exams. Finally, for those students not on leave, the law makes clear that pregnant students are entitled to reasonable accommodations to allow them to continue their studies

The new California law states that a student may choose to take a leave of absence for childbirth according to the policies of the institution “or for a period of 12 additional months, whichever is longer” and return in good academic standing. It also allows a graduate student who is not the birth parent, to take a leave of up to one month.

Impact, compliance, implementation

The most important impact of this new law, to my mind, is not just the language itself, but the implementation. Students, postdocs, and even employees have long had rights to leave and accommodations under Title IX, but no one informed them.

With this new law and the resurgence of Title IX’s popularity as a strong tool against sex discrimination, that is changing fast. Along with Joan C. Williams and Jessica Lee of UC Hastings, we are working to provide resources and guidance to universities looking to comply with Title IX’s pregnancy provisions.

pregnant woman with briefcase

(iStock photo)

Through our work, students are learning for the first time that they cannot be forced to withdraw from school, take substandard assignments, or suffer in pain without the accommodations they’re entitled to. Moreover, they know that under Title IX universities must provide a complaint process through which students can enforce their rights. Students have been in a powerless position to challenge their all-important advisor or professor; now they will have a voice.

The University of California is rolling out its new Title IX requirements for pregnancy discrimination based in part, on the new law. The new law has momentum; on the other side of the country The New Jersey legislature has made progress on a similar bill. In October we held a summit, hosted by the National Academies of Science, which brought the federal agencies that fund university research together to chart a new course.

Strong enforcement of Title IX’s pregnancy provisions will have the most impact on women and families if coupled with changes in industry as well. And on that front too, there is hopeful news. The competition in the tech world for the most talented employees is now beginning to help families; not with the questionable benefit of deferral with frozen eggs, but with a real commitment to workplace flexibility. Students who are looking to start a family, will now have more viable options.

Recently NETFLIX joined the corporate charge to reform the structure of the workplace by offering many mothers and fathers up to a year of paid leave for childbirth.

Tani Cranz, Netflix’s Chief Talent officer explained: “We want employees to have the flexibility and confidence to balance the needs of their growing families without worrying about work or finances. Parents can return part-time, full-time, or return and then go back out as needed. We’ll just keep paying them normally, eliminating the headache of switching to state or disability pay. Each employee gets to figure out what’s best for them and their family, and then works with their managers for coverage during their absences.” Adobe and Microsoft have also announced increased parental leave provisions in August.

These announcements are largely aimed to attract in-demand highly skilled tech workers, and Netflix actually excludes many of its low wage workers from the policy. But the trend is apparent across the board. GAP, for example, just announced that it will no longer use on-call scheduling, a practice that can result in instability for workers with families.

The times, they may be changing.

Mary Ann Mason is a Professor of the Graduate School at UC Berkeley and the author, with Nick Wolfinger and Marc Goulden, of Do Babies Matter? Gender and Family in the Ivory Tower. She served as the first woman UC Berkeley graduate dean from 2000-07.

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