Loss, fertility treatment, adoption: What you need to know about your rights under the law

The path to parenthood can be difficult. Whether you or your partner have experienced pregnancy loss, looking for information, or are yet to start your parenthood journey, here we cover your rights and entitlements relating to loss, adoption, and fertility treatments.   

Leave for fertility treatment 

It's estimated that one in 25 babies are now born through IVF in Australia, and one in six couples experience issues relating to fertility.  

If you require time off for fertility treatment, you will need to take annual leave unless your employer grants special or unpaid leave. This is considered best practice, but many organisations do not yet have policies in place.  

Encouragingly, since 1 October 2022 the NSW government provides a new parental leave entitlement, offering up to five days of paid fertility treatment leave (per calendar year) to support NSW public sector employees undergoing fertility treatment. In addition, since 30 September 2024, Queensland public sector employees are entitled to 10 days paid reproductive health leave per year (which includes leave for fertility treatment).

Adoption leave  

Like parental leave, you can take up to 12 months of unpaid adoption leave if you have worked in the organisation for 12 months before the date of adoption. You can also request a further 12 months, and this can only be refused on reasonable business grounds. 

There are a few caveats with adoption leave. The child has to be, or will be, under 16 as at the day of placement, not a child of the employee or their spouse/de facto, and not have lived with the employee for six months or more on the placement date.  

You can also take unpaid pre-adoption leave of up to two days to attend interviews or examinations to get approval for the adoption. 

Adoptive parents can also access the government’s Paid Parental Leave entitlements. 

Special maternity leave  

A pregnant employee is entitled to unpaid special maternity leave if they are unfit for work because:  

• Of a pregnancy-related illness. 

• The pregnancy ends after a period of gestation of at least 12 weeks, otherwise than by the birth of a living child.  

Any period of unpaid special maternity leave that a pregnant employee takes will not reduce their entitlement to unpaid parental leave.  

Miscarriage  

Employees are entitled to two days’ compassionate leave if they have a miscarriage, or their spouse or de facto partner has a miscarriage. 

Employees who are already on unpaid parental leave can still take compassionate leave. Find out more about compassionate and bereavement leave at Fair Work Australia. 

If you live in NSW, you and your partner or spouse are entitled to five days of paid special miscarriage leave. This is on each occasion a pregnancy ceases by way of miscarriage up to 20 weeks' gestation.  

Stillbirths and infant loss  

In the event an employee who is entitled to parental leave experiences:  

• a stillbirth 

• the death of a child during the first 24 months of life 

the employee remains entitled to take 12 months' unpaid parental leave. Additionally, permanent employees may take paid compassionate leave while on unpaid parental leave.  

Premature births  

Parents of premature babies, or newborns that experience birth-related complications that result in immediate hospitalisation, are able to go back to work while their child remains in hospital and then restart their unpaid parental leave when their baby comes home.  

Having the conversation with your employer 

It can be difficult to talk with your employer about your needs as a parent experiencing loss or infertility. Read our piece on how to talk about this with your employer, and get the support that you need.  

Going through fertility treatments, experiencing miscarriage and stillbirth are struggles not often spoken about. These life events not only have physical impacts, but also emotional and mental impacts for both the person going through the experience and their partner.  You can hear real stories from people who have been experienced such struggles through COPE’s #thetruth campaign. 

The truth about perinatal loss - COPE Campaign from Centre of Perinatal Excellence on Vimeo.

The truth about infertility - COPE campaign from Centre of Perinatal Excellence on Vimeo.