When a surrogate leaves her job to deliver the baby or misses work to attend numerous doctor appointments, should she get maternity leave benefits from her employer even though she is not the legal parent of the child? Should the intended parents receive maternity leave benefits from their employer when the child is born even though the intended mother did not physically deliver the child?
It is a common question asked mostly by my intended parent clients whether they can take maternity leave once the child is born if the baby is delivered through surrogacy. I myself had the same question when my surrogate delivered. Other issues that come up in the context of infertility and paid leave from work is whether people suffering from infertility, that may require many doctor appointments, are entitled to accommodations from their employer to allow for missed days from work to deal with the demands of infertility.
Leave from Work for Infertility:
The Americans with Disability Act ("ADA") provides that reasonable accommodations must be provided to individuals who have a qualifying disability, absent a hardship caused to the employer. Infertility is deemed a disability which, on a fact specific basis, may provide employees the accommodations necessary to treat their infertility, such as accommodations necessary to leave work to attend medical appointments and procedures.
Maternity Leave for Surrogacy:
The Family Medical Leave Act ("FMLA") provides certain protections to employees, including 12 weeks of job-protected unpaid leave for various situations, including, but not limited to, the birth of a child or because of placement of a child with the employee for adoption or foster care.
Surrogates and intended parents can both benefit from the protections of FMAL, however, as stated above, FMLA does not require paid leave, and FMLA only applies to certain situations such as based on the size of the employer and how long the employee has been working at the applicable job.
Whether an employee can receive paid leave, and/or if FMLA does not apply, is then at the discretion of the employers policies, along with certain state laws that may require certain paid leave provisions similar to FMLA, regarding maternity and paternity leave.
Some surrogate's pump breast milk for intended parents and some intended parents choose to undergo medication to allow them to provide breast milk to the child and certain accommodations for a reasonable break along with certain privacy accommodations should be made to allow for the pumping of milk while at work under the Fair Labor Standards Act.
It is important to speak to an employment lawyer familiar with FMLA, and employee/employer benefits and legal protections if you have any questions regarding whether an intended parent can seek job protection and/or paid leave when having a child through surrogacy.