Can You Get Parental Leave When Having A Child By Surrogate?

Those first few months with your child are so important. You get to know them, see many of their firsts, and have the chance to bond with your new addition. In the past, Parental Leave has not always been forgiving to parents that were not female or giving birth traditionally, but times are changing! Many businesses are going forward into the future understanding that people having a family are no longer just straight couples giving birth traditionally. At the end of the day, the determination as to whether you can be granted parental leave for the birth of your child via surrogate is up to your employer. Hopefully, it’s good news! However, if it’s not, there are protections in place to allow you that valuable time with your family and legal precedent to back you up when pursuing the leave you should be granted.

History

Parental leave used to have a rigorous set of rules in terms of when it was applicable. At its onset, it was not even guaranteed. Oftentimes, a woman giving birth would be let go from her job over being given paid maternity leave. But as business culture changed and women became more common in the workplace, companies had to adapt. Thus, maternity leave was born! Anyone giving birth was given time to recuperate from the physical toll and welcome a child into their family on paid time, with the hopes that they would return afterwards.

As family dynamics change, and birth journeys change, many companies are publicly announcing support for Parental leave for any employee of any gender or any birth process. This covers the surrogacy process as well as adoption. If you don’t know your companies’ specific policy for paid leave, ask your employer about your available options. 

Issues

Some companies do not have their finger on the pulse of how pregnancy is changing, and still have antiquated policies around maternity leave. However, if you would still like to get maternity leave for your surrogacy, there is legal precedent to support you.

Years earlier, Kara Krill was giving birth via surrogate, and was denied access to Parental Leave due to the nature of her pregnancy.  She took the issue to court, arguing that she was being discriminated against for a disability (the inability to reproduce due to medical complications). It was determined that Parental leave is meant for any parent to welcome a child into their family, give them time to bond, find their footing with a new member of the household, and spend this joyous time with their family. This ruling applied to traditional birth, surrogacy and adoption. Many companies have changed their policies following this court case, preventing the need for a drawn-out legal battle. 

You deserve time with your newborns. If you are denied Parental leave because of the nature of the birth, contact your assisted reproduction lawyer immediately. This legal precedent can protect you.

FMLA

In the not-so-distant past, a Verizon executive, Marybeth Walz, let her company know she would be welcoming a child into her family to begin the maternity leave process. Her HR department was excited for her to expand her family and was on board until she announced she would be giving birth via surrogate. At that point, the company attempted to rescind the paid leave because they argued leave was specifically meant to give those who had given birth time to rest and overcome the physical strain before returning to work.

Marybeth’s lawyer recommended she make good use of FMLA protections. The Family and Medical Leave Act guarantees any employee welcoming a child into their family 12 weeks of unpaid leave. There are some restrictions on this policy outlining whether you qualify, but this is specific to the length of time you have worked at the company. This Act applies to all public agencies and companies, as well as private companies with more than 50 employees. While unpaid leave is not ideal, it still allows your family time to bond with a new child and become acclimated to your new dynamic.

Best Practices

As you start on your surrogacy journey, it is best to follow a few best practices with your employer to ensure you are treated the way you deserve:

• • Ask about the Parental Leave policy. Look for any wording that may suggest that you would not be able to take leave.
  • Tell your company about your surrogacy at the 20 week mark. A lot can happen during the first few months of a surrogacy. Once you are sure you’re adding to your family, approach the subject with your HR department
  • Know your Rights. Do not accept a “no” right away. Always check with your reproductive lawyer to make sure your rights are being taken care of. There is legal precedent for you to have time at home with your new family.

• Fight for the Future. Many employers are hurting for employees after the great resignation of 2021. Now could be the perfect time for you to inspire change in an antiquated policy and give future intended parents the opportunity to not worry about being denied.

The Future

Because of brave parents who wanted the necessary time to welcome their children into the world, it’s easier for everyone else undergoing a surrogacy journey. It’s easy to imagine that someday soon surrogacy and adoption will be de facto included in all Parental Leave policies. Even now, more and more companies are announcing extensive policies that center its employees and their needs for time with their families. 

The most recent trend in this company policy progression has been to open Parental Leave to all genders, and any type of birth or addition to the family. In addition, many have been announcing the option to take leave for a miscarriage, fertility problems, or miscarriage of a surrogate. It’s encouraging to see HR take these progressive steps in major companies.