Should Moms Who Use A Surrogate Get Maternity Leave?

A woman is suing her employer because the company refused to grant her maternity leave when her twins were born through a surrogate.

Kara Krill of Long Island, New York, is suing for breach of contract and discrimination on the basis of her disability. After her first child was born in 2007, Krill was diagnosed with Asherman’s Syndrome, a condition that can cause scar tissue in the uterus and prevent a woman from carrying a pregnancy. In order to have more children, Krill and her husband used a surrogate, who carried and gave birth to twins.

Krill’s company, Cubist Pharmaceuticals, gave her 13 weeks of paid maternity leave when her first child was born. But because she was not carrying and giving birth to the twins herself, Cubist would only grant five days of leave, the amount they give parents who adopt.


Krill’s complaint argues that since she and her husband are the biological parents of their children — the couple had obtained a prebirth order, signed by a judge, confirming the “legal and genetic parentage of Krill’s twins without having to institute adoption proceedings” — she should be given the same paid maternity leave benefits as every other biological mother in the company. Were it not for her disability, she would be receiving paid maternity leave, Krill argues.

The article continues:

[W]hat is the real reason for granting maternity leave?

If maternity leave is offered so that women can recover from what is, at best, the incredibly messy and strenuous business of giving birth, then new mothers like Krill who use surrogates would not really deserve paid leave, since they are not doing the hard yards of labor and delivery.

But paid maternity leave could also be regarded the same way as paid leave for jury duty — something a company does out of civic responsibility. Supporting new mothers as they bond with their children, learn to care for them and give them a good start is beneficial for society and for the survival of the species.

Readers, what do you think? Should women who use a surrogate get maternity leave?

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  1. by Tara West

    On September 10, 2011 at 11:23 am

    YES ABSOLUTELY she should get maternity leave. I think adoptive parents should get the same maternity leave as well. The bonding with a child is imperative! Not only that, but what if this mother is choosing to breastfeed? Many parents who use surrogates choose to breastfeed their baby themselves (if lactation can be induced) and this would be time spent bonding with the baby.

    The exclusion of a parent who chooses to adopt or use a surrogate is unethical in my opinion. One could argue that recovery times are very different for each woman “giving birth” so they would have to change the recovery time for each woman based on their particular medical situation if the leave was truly for “healing” time. Women who birth vaginally heal faster than those who receive a c-section, so do c-section mothers deserve more time off than a vaginal birth mother? No, they do not separate the two; therefore, adoptive and mother’s using a surrogate should receive equal time.

  2. by SmartOneKym

    On September 10, 2011 at 11:29 am

    Speaking as a former gestational surrogate, I do believe that mothers who have children via surrogate AND adoption should be granted the same full maternity leave rights as women who endure a physical childbirth/delivery.

  3. by Liz McLennan

    On September 10, 2011 at 11:43 am

    She was given five days to adjust to life with twins? Who the heck is in charge of making such asinine rules and regulations.

    And she was hoping for 5 weeks? FIVE??? That is just…wrong, on every level. Thank God I live in Canada, where mat leave is a year.

    ALL new mothers, regardless of how their families were “born” should be entitled to as much time as possible.

    *Still gaping at 5 weeks of mat leave. Twelve weeks isn’t enough either.*

  4. by jill

    On September 10, 2011 at 1:02 pm

    You don’t get 13 weeks of maternity leave to recover from childbirth that usually only takes a couple of weeks. It is mostly to bond with your child and get into a routine so why should surrogate and adoptive parents be denied the same benefit. Dads should also get a couple of weeks in my opinion.

  5. by Louisa

    On September 10, 2011 at 2:21 pm

    I agree with the other commenters and am so glad I live in a country that values the role of parents enought to provide a minimum of 12 months mat leave. The idea that adoptive mothers/parents or those using surrogates aren’t entitled to the same leave as those who give birth to their children is appalling.

  6. by Tonya

    On September 10, 2011 at 2:47 pm

    Heck yes, they should get paid leave! Maternity leave is not just for recovering from giving birth. For some, that part only takes a few days. These moms, regardless of whether they physically gave birth to their children or not, are still parenting newborns, which means getting up for feedings in the middle of the night. New moms are exhausted! And this new mom has middle-of-the-night feedings times two! I doubt she was adjusted, alert, and refreshed after a week at home. I bet a man made that decision. No woman who has ever been in the trenches as a new mom would do that to another mom.

  7. by Maggie

    On September 10, 2011 at 3:49 pm

    Well, the woman would have been eligible for unpaid maternity leave through the Family and Medical Leave act, just like adoptive parents and fathers, so there was at least that. But more importantly, the maternity leave is not just for the mother, it’s also for the baby. Babies are too young to be separated from their mothers (or stay-at-home fathers) at 5 days. The adoptive thing might make sense if the baby was older, but adopted kids shouldn’t be shipped off to full time daycare at that age, either. Shame on the company all around.

  8. by Cameryn

    On September 10, 2011 at 9:17 pm

    All three groups should have equal time. Five days for adoption and surrogacy is insanity. Five weeks would barely put a dent in it.

  9. by S

    On September 25, 2011 at 6:06 pm

    Sadly, after this suit, companies are even more likely to only offer FMLA unpaid leave. While I don’t agree with the distinctions, her company went beyond the legal minimums, thus should be allowed to choose what they do and don’t cover. She knew going into the situation what would be covered, so her reaction to the policy, after the fact is a bit unjustifiable to me.

  10. by Momo2

    On September 26, 2011 at 12:06 pm

    Must be nice to get a real maternity leave. I recieved short term disability for 6 weeks and then could take up to 6 additional weeks of unpaid leave under FMLA. The United States is one of the few developed nations in the world with no actual maternity leave. I think this woman should be able to get FMLA leave but that’s it.

  11. by Kimberly

    On September 28, 2011 at 7:54 am

    She is still the mother of newborns. They still need bonding time and the whole family is going to be sleep deprived until the babies get on a schedule. No approved/certified care giver(s) will care for children under 6 weeks of age. Twins require much more care than single births.
    She (and her husband) should absolutely receive the same maternity/paternity benefits afforded to any/all other parents.

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  14. by Charlie Brandler

    On November 30, 2011 at 4:00 am

    Nicely done my friend

  15. by D

    On December 23, 2011 at 12:55 am

    As far as I know, there are two components of maternity leave. The mother’s disability – which is NOT included in federal family leave, and family leave. I 100% agree and believe that mother’s of adopted children can and ARE included under federal FMLA. There is a 12 week period alltoed to women who qualify (they have worked over 1000 hours in the past yr for a company with over 50 employees) to bond with a child.

    HOWEVER, I do not believe that women who become mothers through surrogacy should get the time alloted for maternity disability. They have not undergone the birth process.

    Furthermore, I think that the surrogate should get the time alloted for the disability. But not the family leave time.

    For example in NJ you are allowed 6 weeks of disability following a vaginal delivery. FMLA starts AFTER you are finished with your disability. The surrogate should get that 6 weeks of disability time ( if she is employed in a qualifying position) and the mother should get the 12 weeks of FMLA for bonding. A mother who delivers and is raising her children gets first six weeks of disability, and then her 12 weeks of FMLA begins. They are not concurrent in this state, and FMLA specifically excludes the mother’s period of disability.

  16. by Vincenza

    On December 25, 2011 at 3:44 am

    awesome them! will you email me where you got it? is it paid/premium?

  17. by Shelby Gerrard

    On December 25, 2011 at 2:04 pm

    Thanks for the info, very useful

  18. by Jamie

    On January 3, 2012 at 10:38 am

    As a mother who has given birth both vaginally and via c-section, I can honestly say that maternity leave has less to do with recovery and more to do with adjusting to life as a new Mom. Aside from just typical soreness, I was “back to normal” two days after giving birth to my first child. And two weeks after my c-section with my second and third, I was out walking up to 2 miles a day while pushing my twins in a stroller. While I believe maternity leave shouldn’t be about medical recovery–that it should be focused on bonding with a child–I understand the company’s position. In fact, I’m surprised maternity leave is even an option anymore at most companies given that we live in a society that has been degraded by feminism where Moms are not only expected to work, it is considered archaic and oppressive to actually stay home and raise your own children. So in essence, “bonding” with a child after birth has been rendered moot. Spending five or twelve weeks with a newborn is hardly bonding anyway, to be honest. You either want to be with your child or you want to work. And that is your choice as a woman and as a mother. Wasn’t that what feminism was about anyway? But it’s not the company’s responsibility to ensure you get to have it both ways and it’s annoying when women whine about this sort of thing. You don’t hear men whining about their lack of employer-provided bonding time with their babies and as fathers they should be just as entitled to it as the mother. If this woman is so incensed by her perceived inequitable treatment by the company, then quit and stay home with your babies.

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  25. by Kayla

    On March 13, 2012 at 8:44 pm

    Absolutely ridiculous. Of course they should! Maternity leave is important for two reasons. One, because your body needs to heal, but second and most IMPORTANTLY it gives them time to bond with their child!Her employer must not have children if they don’t understand this simple fact. I’m glad this woman didn’t cave and is standing up for her rights as a mother.

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    On May 18, 2012 at 11:48 pm

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  27. by Jim Larsen

    On May 20, 2012 at 2:16 pm

    If MEN get the same leave, then I see the point, but to give a WOMAN benefits that a man does not is discrimination, pure and simple.