Do Intended Parents Get Parental Leave for Their Child Born Through Surrogacy?

Parental leave, FMLA concept

It’s the time that intended parents look forward to the most: the days after the birth of their child, when their dreams of parenthood have become a reality. Life with a newborn is both exhausting and exhilarating, no matter how the baby became part of the family. While parents who gave birth to their child need to recover physically, all parents want to cherish those irreplaceable early days with their child. These days are important to bonding between parents and child. But is there such a thing as surrogacy maternity leave or surrogacy parental leave for parents of a baby born through surrogacy?

The answer is: sort of. Parents of a child born by surrogate have the ability to take time off from work following the child’s birth. Whether that time off is paid leave, however, depends on the parents’ employers and their specific policies. Federal law allows parents to take time off following the birth of a child without jeopardizing their jobs, but that time is unpaid, and does not apply in all situations.

The Family and Medical Leave Act and Parents by Surrogacy

The federal law that allows intended parents to take time off for surrogacy parental leave is known as the Family and Medical Leave Act (FMLA). The FMLA allows parents to take time off work for the birth and care of a newborn child, or for placement of a child in the family for adoption or foster care. The FMLA provides up to 12 weeks of leave for these and other family or medical needs each year.

The good news is that the employee’s job is protected if they choose to take time off under the FMLA to bond with a new child. The bad news is that that time off is unpaid. That can put a serious financial strain on a family, especially one that has just dealt with the expenses of surrogacy.

Further bad news is that the FMLA does not apply to all employers and employees. FMLA applies to companies with 50 or more employees, as well as all public agencies and all public and private elementary and secondary schools. Even for those employers, employees must meet certain requirements in order to qualify for FMLA leave.

To be eligible for parental (or other) leave under the FMLA, employees must have worked for a covered employer for 12 months. They must also have worked at least 1,250 hours over the previous 12 months. (Whether the employee has worked the required number of hours is determined by Fair Labor Standards Act (FLSA) principles for determining compensable work hours.) In addition, the employee must work at a location where their employer has at least 50 employees working within 75 miles.

Even if an employee is eligible for leave under the FMLA, they are eligible only for a maximum of 12 weeks in a year. Many new parents would prefer to take more time to bond with their newborn baby.

Most countries have more generous parental leave than the United States. For instance, in Canada, new mothers can take up to 15 weeks off of work after welcoming a new child, and that time off is paid. New Canadian mothers can take up to 52 weeks of job-protected time off work. Fathers are also eligible for parental leave, and parents can choose to split up leave to allow each of them to be home with the baby for a longer total period. The unfortunate truth is that the United States is behind most other countries when it comes to parental leave.

Do Company Policies Discriminate Against Parents by Surrogacy?

Of course, individual employers may decide to offer more generous parental leave than federal law requires. Even then, however, intended parents who work with a gestational carrier may be treated differently than parents who give birth or those who adopt.

Naturally, policies vary from company to company. However, certain cases involving new parents and the issue of surrogacy parental leave show that discrimination is real. In one such case, Marybeth Walz, a Verizon executive for nearly two decades, became the intended parent of twins using her own eggs (frozen before cancer treatment) with the help of a gestational surrogate.

Initially supportive of Walz and her family plans, the attitude of the company’s human resources department changed when they learned that the babies would be born by surrogate. While the company had a policy allowing maternity leave to women who had given birth or adopted, there was none for parents by surrogacy. In addition, the company’s insurance did not cover the surrogate’s medical expenses, leaving Walz responsible. Tragically, Walz’s twin sons died shortly after birth.

Companies may not intend to discriminate against intended parents who are working with a surrogate. It may just be that surrogacy has not been prevalent in the past, and the need to provide parental leave for parents by surrogacy has not been on employers’ radar screens. But the needs of parents who grow their family by surrogacy are similar to those of birth and adoptive parents. To ensure those needs are met, it is important for intended parents to work with an experienced surrogacy family law attorney.

To learn more about your rights regarding surrogacy and parental leave, please contact Brinkley Law Firm to schedule a consultation.