By Erin Dougherty Foley and Craig B. Simonsen

In an interesting development, a number of large employers have begun to offer to pay for employees to freeze their eggs (aka ova (the female reproductive cell)).

There is merit to the notion. According to the Centers for Disease Control and Prevention, one-third of couples where the woman is 35 years or older have fertility problems. “Aging not only decreases a woman’s chances of having a baby but also increases her chances of miscarriage and of having a child with a genetic abnormality.”

An NBC report on this topic indicates that, when successful, egg freezing allows women to “put their fertility on ice” until ready to become a parent. Egg freezing also provides a vehicle for “leveling the playing field” between men and women: “Without the crushing pressure of a ticking biological clock, women have more freedom in making life choices, say advocates.”

In today’s highly stressful and highly competitive jobs market women have career expectations and demands. These expectations continue even as their biological clocks tick away.  Although women freeze their eggs for many different reasons, one common bond they may share is the desire to have children in the future. “Waiting is the new normal,” says egg-freezing advocate and patient forum, Eggsurance.com.

But the procedure comes at a steep price, with the costs typically around $10,000 for every round, plus $500 or more annually for storage. Having the flexibility and the encouragement from a willing employer may well be the inducement for professional women to freeze their eggs while they climb the corporate ladder and seek to establish their careers.

Certainly, the debate rages whether or not employees who defer having children, — either by simply waiting, or by freeze their eggs — are more likely to advance through the corporate culture than those who choose to raise children mid-career.

However, Business Insider asks an alternate question — does an “egg-freezing employee benefit” send  the wrong message to female employees. “Something about offering to pay women to freeze their eggs for career purposes seems to be a slippery slope.”

• First, it conveys that the only way to succeed in the corporate America “mold” is by not having a family. Many professionals may decide not have children at all if they think that is what’s necessary to be successful in their careers.
• Second, the policies may scare women into believing that if they do choose to have children in mid-career, they will have no opportunity to move up the corporate ladder.

Importantly, the U.S. Equal Employment Opportunity Commission has announced that it will focus on “pregnancy-related limitations” as part of its current strategic enforcement plan. Though it is early to say what impact the egg-freezing benefits will have at companies that have already decided to offer this benefit, the EEOC may not view the development as entirely positive.  It is also too early to identify any type of statistical or even anecdotal evidence as to the type of trend or impact such a policy may have on a company’s promotional landscape.

While the philosophical and legal questions may be interesting, employers need to proceed with caution as they investigate any type egg-freezing option, and any changes and additions or subtractions from their employee benefits packages. What is legal and allowable may produce unintended consequences, and unwanted legal liabilities.

For additional information on workplace policies, diversity, retention, and pay equity issues, contact the authors, any member of Seyfarth’s Workplace Polices and Handbooks Team, or your Seyfarth attorney.