June 24, 2019 Best of ABA Sections

Family and Medical Leave for Families Utilizing Surrogacy

ABA Family Law Section

Rachel N. Shute

The Family and Medical Leave Act (FMLA) provides unpaid leave to an employee who suffers from a “serious health condition” that prevents the employee from fulfilling his or her employment duties and functions. Because most births require some level of inpatient care or medical treatment, childbirth qualifies.

Though Congress intended to “ensure that an employee who actually has day-to-day responsibility for caring for a child is entitled to leave even if the employee does not have a biological or legal relationship to that child,” the Senate is silent regarding a birth mother with no child for whom to care. In order to best, and equally, support American families, maternity leave must be extended to include all women recovering from pregnancy and birth.

Parental leave in the context of surrogacy. In traditional surrogacy, the surrogate provides the egg, which is fertilized either by donor sperm or the sperm of the intended father. In gestational surrogacy, the surrogate does not have a biological connection to the resulting child. Instead, the intended parents select either the biological gametes of one or both intended parents, or from donor sperm and/or egg, which form the embryo that is implanted in the surrogate. Because traditional surrogacy arrangements result in the biological surrogate mother’s severance of parental rights, some scholars compare surrogacy to independent adoption and apply adoption laws to traditional surrogacy agreements.

Maternity leave for the surrogate. While maternity leave has been recognized and granted to intended mothers using surrogates, the current language of the FMLA presents challenges in applying maternity leave to the surrogate herself. Because a surrogate mother has endured the physical and medical process of pregnancy and childbirth, the surrogate mother is entitled to some amount of medical leave. Thus, the surrogate mother’s employer should be required to provide her employment security for a reasonable amount of time before and/or following the delivery.

A birth mother cannot be compensated for consenting to the adoption of her child; thus, some scholars argue that surrogate mothers cannot be compensated for consenting to the placement of a child born via surrogacy. However, there is a vital difference: Adoptive birth mothers are pregnant with their own biological child before deciding to place the child with another family, while surrogate mothers become pregnant after consenting to carry and bear a child for another family.

States permit adoptive parents to provide for the birth mother’s medical expenses related to the birth. Because surrogacy is established via a contractual agreement, reimbursement for lost wages accruing during the surrogate’s maternity leave should be included in every surrogacy agreement. If the intended parents’ health insurance, used for the birth of the child via surrogate, includes postpartum care, such coverage should extend to the surrogate mother’s recovery.

Maternity leave for the intended mother. In the context of surrogacy, the FMLA provides maternity leave most explicitly for the intended mother. In gestational surrogacy arrangements, the intended mother is likely the biological mother of the child; thus, the intended mother is entitled to maternity leave just as much as a mother who gives birth to her own biological child. In traditional surrogacy arrangements, the intended mother has no genetic connection to the child; the relationship between the intended mother and the child delivered via traditional surrogacy mirrors the relationship established through adoption. The question remains whether the intended mother, regardless of her genetic connection to the child, should receive the same maternity leave as a birth mother or the leave of an adoptive mother.

An intended mother’s use of maternity leave is for the sole purpose of childcare and bonding with a newborn because she does not require recovery from childbirth. Thus, her amount of leave required differs from that of a birth mother. The intended mother’s leave also differs from that of adoptive mothers: an intended mother bonds and cares for a newborn, the child she intended to create; an adoptive mother may bond with and care for a newborn or an older child, depending on the circumstances surrounding the adoption. Though leave may be cut short because the intended mother does not require recovery from childbirth, the time required for childcare is likely the same as for other birth mothers with newborns. An intended mother should be treated as any other “natural mother,” whether her child was born traditionally or via gestational surrogate.

Paternity leave for the intended father. Employers are more likely to offer maternity leave than paternity leave; paternity leave, unlike maternity leave, is short and unpaid when offered to a father. It has become abundantly clear that bonding between fathers and newborns is just as important as child bonding with mothers. Family leave provisions should provide leave equally to men and women. By encouraging equal parental participation in the early weeks of parenthood, equality between family rights and responsibilities will emerge.

Parental leave for same-sex parents. The use of assisted reproductive technology among same-sex couples has become increasing popular. Unlike heterosexual parents utilizing surrogacy, same-sex parents often have different genetic relationships to the child; one same-sex partner likely has a genetic link to the resulting child, while the other lacks such a biological connection. Regardless of whether adoption occurs, it is clear that the parent with the biological link to the child has a stronger, simpler claim to parental leave. The nonbiological same-sex parent could also claim leave according to the FMLA, as long as his or her employer recognized the nonbiological parent-child relationship.

Unlike heterosexual parents, both same-sex parents would be entitled to the same form of parental leave—maternity leave for mothers or paternity leave for fathers. History seems to suggest that two parents in the same household are unlikely to receive, or afford, identical leave. Because same-sex parents are either both mothers or both fathers, typical gender roles and parental responsibilities are absent from same-sex households.

Through the enactment of the FMLA, Congress sought to alleviate gender norms and stereotypes regarding parenting. Many employers provide family leave more readily to the “primary caregiver.” Currently, same-sex parents struggle to answer the question of who is the primary caretaker. Same-sex couples already suffer from discrimination in becoming parents. Seeking equal leave for same-sex mothers and fathers may be an even heavier burden than establishing equal access to parenthood.

Recommendations for reform. The FMLA should separate entitlement to leave due to childbirth from leave in order to care for a child. Alternatively, the FMLA could specify that childbirth and pregnancy are especially included in the definition of a “serious health condition,” entitling birth mothers to medical leave. This distinction clarifies that birth mothers may utilize family or medical leave for childbirth, even when the child does not return to the birth mother’s care, without the risk of losing an employment position.

Though the FMLA seeks to provide equal access to family leave to men and women, individual employer practices favor the use of leave by mothers over fathers by providing paid maternity leave but uncompensated and/or short paternity leave. Some employers also provide family leave based on the method of family formation, determining leave eligibility by distinguishing between biological reproduction and adoption. The United States should seek to enact legislation clarifying equal access to family leave for mothers and fathers even if fathers voluntarily choose to cultivate shorter leave. Additionally, the United States should impose a mandatory minimum allotment of parental leave, promoting maternal health and parental bonding for all parents and children.

ABA Family Law Section

This article is an abridged and edited version of one that originally appeared on page 95 of Family Law Quarterly, Spring 2017 (51:1).

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By Rachel N. Shute

Rachel N. Shute is an assistant district attorney at the Middlesex District Attorney’s Office, Massachusetts. This article was the second-place winner in the 2016 Howard C. Schwab Memorial Essay Contest.