Miscarriage is a disability, Ontario Human Rights Tribunal says

A recent interim decision by the Human Rights Tribunal of Ontario, that says miscarriage is considered a disability, could signal a significant shift in disability law in Ontario.

Interim decision could change how pregnancy loss is treated under provincial disability law

An interim ruling by the Human Rights Tribunal of Ontario, that says a miscarriage can be considered a disability, may lead to more people talking openly about the pregnancy loss, according to an advocate for bereaved families. (Getty Images)

A recent interim decision by the Human Rights Tribunal of Ontario, that says one woman's miscarriage is a disability, could signal a significant shift in disability law in Ontario. 

The tribunal is currently working through an employment discrimination case, involving Winnie Mou of Markham, Ont.

​Mou experienced a series of events in 2013, including a miscarriage and the death of her mother-in-law, which triggered severe and debilitating depression. In February 2014, she was fired from her job.

In the March 14 decision from tribunal adjudicator Jennifer Scott, Mou's miscarriage was ruled a disability.

"I acknowledge that a miscarriage may be covered under the ground of sex or as an intersection of sex and disability. It also is not a common ailment, and it is certainly not transitory. It is clear from the applicant's testimony that she continues to experience significant emotional distress from the miscarriage even today," Scott wrote.

Mou's complaint against her former employer will be allowed to continue through the hearing process, Scott said.

Her employer had filed a dismissal request, arguing she had not established a disability. 

Precedent-setting decision

Mou's lawyer, Morgan Rowe, told CBC News the decision is precedent-setting, and has the potential to change how pregnancy loss is treated by Ontario disability law.

"It should make it easier for the next woman who comes along who feels like an employer has relied on her miscarriage to penalize her in some way," Rowe said. 

Rowe argues a disability should not be defined by the biomedical issue but rather how that medical issue affects one's participation in society. 

The Society of Obstetricians and Gynaecologists of Canada says miscarriages are common and occur in 15 to 20 per cent of pregnancies.

They happen most often during the first eight weeks and, in many cases, the reason is unknown.

Talking creates support network

The tribunal ruling is a positive step in bringing to light an experience many women face, but feel like they cannot talk about, said Jaime Bickerton, the executive director of Bereaved Families of Ontario – Midwestern Region.

"I think a lot of times there's a lot of stigma and discomfort around even talking about the subject of miscarriage," Bickerton told Craig Norris, host of The Morning Edition on CBC Radio. 

You're not really supposed to say anything. You're supposed to grieve on your own.— Jaime Bickerton, Bereaved Families of Ontario

"Our society has actually been conditioned to not even talk about being pregnant until you're three months along just in case something happens and you lose your baby, you don't want to have to go out and tell people you've had a miscarriage."

Bickerton said it is hoped the decision will change how companies deal with their employees who experience a loss.

"Employers are going to have to take a look at their policies," she said. "I think it's going to force them to look at different categories of loss as well, miscarriage being one of them."

People are becoming more comfortable discussing mental health, Bickerton said, and she thinks more people will begin to share their grief with others, realizing the therapeutic nature of talking to others.

She said currently, miscarriages are considered to be "disenfranchised grief," meaning other people don't understand why it's an issue.

"It's when people around you don't see your loss as valid or legitimate, so you don't have that support around you," she said.

"If you miscarry, you're not really supposed to say anything. You're supposed to grieve on your own, you're supposed to not talk about it for fear of making other people feel uncomfortable."

She added, "If you're talking about it, you're creating that network of support right up front, so if something should happen and you have a miscarriage you've got people around you who you can talk to, who you can go to for support and you're not grieving in isolation."

With files from Kate Bueckert and Melanie Ferrier