Should Mother Who Has a Child Through Surrogacy Receive Maternity Leave?

Kara Krill from Long Island, New York was medically unable to have another child so she and her husband hired a gestational carrier to give birth to their biological twins in May 2011.

Ms. Krill worked for a mid-size pharmaceutical company, Cubist Pharmaceuticals, who had a maternity policy that provided thirteen paid weeks of leave for mothers after the birth of their child. In fact, Ms. Krill received such a leave in 2007 when she gave birth to her first child.

Cubist advised Ms. Krill that because she did not carry the babies herself, the company would provide five paid days of leave under Cubist’s adoption policy, which also included a payment of up to $4000.00 to cover adoption expenses. Similarly, the company’s policy included paternity leave of five paid days to male employees who became fathers.

Ms. Krill launched a lawsuit against Cubist alleging discriminatory treatment and a lack of accommodation of her disability—her inability to carry a child to term. She has also claimed verbal harassment and other adverse treatment on the part of her supervisor, who is alleged to have told her that she was not entitled to maternity leave on several occasions.

I have little sympathy for Ms. Krill for several reasons. Firstly, I find it unimaginable that she would sue her employer given America’s dire unemployment situation. It must be apparent to her that whether she wins or loses her lawsuit, her relationship with her employer is irreparably harmed.

With advances in reproductive technologies, employers must now deal with situations they have never before encountered and quite properly are using the rationale of their adoption leave policy to address Ms. Krill’s circumstances.

A child born of a surrogate is more akin to an adopted child than a child who is delivered from his or her mother’s womb. A mother with a surrogate child has none of the medical aftermath that flows from natural or cesarean birth.

Paid maternity leave is a luxury unknown to most mothers in America. Ms. Krill should appreciate what she has and abandon her lawsuit. What do you think?

Lawdiva aka Georgialee Lang


7 thoughts on “Should Mother Who Has a Child Through Surrogacy Receive Maternity Leave?

  1. I agree she should give up on the law suit however, she just lit up the employment exit sign. Give the company a little time and she will find herself facing discipline that will lead to dismissal with cause.

  2. The company’s adoption policy is wrong. There should be no distinction between natural birth or any other kind of birth, or addition to the family including regular adoption. The reason is that leave and compensation should be child focused, and not parent focused. The leave is for the benefit of the child, and to help the family adjust to fulfill the role of parenting to meet child needs. The health or physical situation of a mother is too narrow a view. Fathers should have more consideration. Leave should not be maternity leave, but family leave, (one size fits all) and the physical issues of the mother are not relevant to a company policy of planned compensation, as its just gets too complicated, individualistic, and intrusive into family business. The issue, is to help children directly, and the focus should be on them. Therefore, the same financial help should be available from a company, regardless of the permutation of the family. The family situation and health and so on, are private family matters, and not a company program choice. Companies should be better able to predict their costs, and one single policy of family leave should be available for every family regardless of their private situation.

  3. I do not think the woman is undeserving of sympathy. There will always be people worse off than any other given person. That doesn’t mean that people who are relatively better-off than others need to just sit back and not strive for more. People need to make a stink about things like this in order to show employers that it is something that employees need. I don’t really feel like this request is overly entitled, given that the company gives maternity leave to other mothers. Perhaps it would be a bit questionable if she were demanding paid maternity leave from an employer who does not offer it to any employees, but it’s not a great stretch in this circumstance.

    I think the mother’s request is reasonable in the context of a company that offers any form of parental leave. The aftereffects of childbirth are not the only hurdle to a new parent, and the mother is no less a mother for not having carried the child in her own uterus.

    I do not know if this is the case, but if the company offers paternity leave for a father then it would be hypocritical of the company to deny leave for the mother in this circumstance.

  4. Paul and Mary

    Always interesting to hear another perspective. Mary, the company does offer paternity leave which is identical to the adoption leave offered to Ms. Krill.

    1. I agree with Paul and Mary and believe this company’s policy and any laws offering paid maternity only to employees who have given birth to a child are discriminatory. The language of the law and the policy should be more specific (is it about the bonding or the recovery and if its about the recovery should it be the same for natural or cesarean….) Ideally, if this length of paid leave is offered to a woman who has gone through pregnancy it should be possible to offer this to both parents (through their employers of a mandated size)or declare one parent as primary caretaker. And why isn’t this a federal law?

  5. Thank you for keeping us informed. Should Mother Who Has a Child Through Surrogacy Receive Maternity … has given a great overview of new york maternity leave law.

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