Frozen Eggs in Sillicon Valley: An Employment Lawyer's View

At least two companies in Silicon Valley, Apple and Facebook, are adding egg freezing to the list of benefits offered to employees. This perk is estimated to be worth about $20,000 (Facebook also offers surrogacy and adoption assistance) – and is seldom covered by health insurance unless needed for medical reasons (infertility, poly-cystic ovaries, cancer, etc.). In some cases, these benefits are also extended to spouses.

On its face, this measure will allow female employees to exercise greater freedom over their reproductive lives; to negotiate the vagaries of work-life balance without having to confront the social and biological pressures of what is considered an “optimal” child bearing age. Women are disproportionately burdened with the responsibilities of childbearing, rearing, and raising, and generally take off more maternity leave than their partners do. Egg-freezing may allow them to postpone parenthood for many reasons: to reach a point when their careers are more settled, or find an appropriate partner, or have more financial means to raise children well. Potentially, they could also use these eggs with a surrogate.

I believe that anything that offers women more choices about their reproductive health is a good thing, especially in an era where the Supreme Court and many state legislatures whittle away at women’s legal access to abortion and contraceptives. For some women, this perk could be a fantastic option, and this new approach from Sillicon Valley will, at least, spark a valuable dialogue about the burdens of reproduction for their employees.

And, to be fair, Apple and Facebook already offer above-average family benefits when compared with other large companies in America. Apple recently announced that mothers can take up to four weeks before delivery and “upwards of 14 weeks after giving birth,” while fathers and other non-birth parents can take six weeks. Facebook offers four months of parental leave for birth parents and non-birth parents alike during the first year, plus flexible work hours, telecommuting, $4,000 in “baby cash,” subsidized laundry, and a child-care reimbursement (the company offers full-time on-site day care for employee dogs only). It is unclear how much people are actually encouraged, willing, or able to claim these benefits.

But there's also something deeply troubling about this “perk”. I worry it will only work to reinforce stereotypes that motherhood is a business liability and that women are sub-prime employees, in an industry already rife with sex discrimination. Pregnancy, and childbirth, isn’t a problem - our culture is the problem, continually pathologizing women’s bodies and reproductive capabilities.

What happens now to the female Apple employee who decides to forego egg-freezing to have children at 29? What happens to a gay 28-year-old man when he takes paternity leave after he adopts a baby? Will they be discriminated against for making “anti-career” parental decisions, or face questions about why they didn't choose to delay starting a family - especially if that option was free?

There's also the question of the method's efficacy. It’s hard to know the success rate for egg freezing in healthy women because much of the available data measures its use by cancer patients who freeze eggs in advance of chemotherapy and radiation.  Nevertheless, there is certainly some added risk to fertility and health to have children this way and to postpone childbirth.  Women are entitled to assume these risks, but they do exist. 

And there are a lot of contingencies here: do women’s careers slow down in the 40s, the alleged “better time” for women to have children? What happens to the eggs if women quit their jobs at Apple? In short, does this actually help women or does it help Apple, by inducing women to work for them harder and longer?

This Silicon Valley “solution” just feels so predictable:  precisely the kind of strange, bold, quasi-solution to a “problem” that the intense work culture of Silicon Valley has created. In short, they made a shiny app when they needed to rebuild the whole computer.