Surrogate Mother

denisek

We have an employee who is in the process of becoming a surrogate mother. This will hold no connection to her as the mother or through the father. She is doing this through an organization who needs women to surrogate a birth. Here's the question. How many weeks FMLA does she qualify for? Is it six weeks for the medical purpose portion of FMLA. Being she will not be bonding at all with this child is she still eligible for 12 weeks?

Gillian

She is eligible for FMLA so long as the doctor certifies her as disabled, whether that is two weeks or twelve. If your state has a separate family leave law, you might want to check whether or not it can be used during a pregancy. In California, we can could count this absence under FMLA but not the state version.

vmiller MO

The statute defines Son or Daughter to mean "a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is (A) under 18 years of age. . ." The regulations use the same definition.

The question is what legally is a surrogate mother? If it means that she is the biological mother, then the answer is clear. However, if it means something else, then the answer is not so apparent. Is a surrogate mother another term for foster care or "in loco parentis." The regulations indicate that "foster care" is made by or with the agreement of the State that the child be removed from the home. The regulations further state that "in loco parentis" means persons who have day-to-day responsibility to care for and financially support a child. A biological or legal relationship is not necessary for loco parentis.

It does not seem that you have sufficient fact to make a determination. You can ask for legal documentation as to the status of surrogate mother. If there is none, then you are probably looking at the issue of whether the person stand "in loco parentis." If the surrogate meets the definition in the regulation, then the answer is that the person is entitled to FMLA leave. If the person does not meet the definition, then probably not. If the surrogate is "helping" the mother and father with the child, but is not responible for the day-to-day care and finacial support for the child, the surrogate probably would not qualify as "in loco parentis." However, this is not an easy question to answer. I suggest that you consult with your company's attorney before proceeding.

Of course, you are free to decide that you are going to grant such a leave because your company wants to support such activity.

Theresa Gegen TX

Chances are there is no controlling legal authority on this issue.

I would err on the side of caution and offer her the full 12 weeks. She may not take it, especially if it is unpaid. But you can't go wrong by giving her the full 12 weeks.

Good Luck!!

denisek

Thanks for all your input. A follow up to the comment is the child biological in any way? The answer is no. Nor will she have any day to day contact with the child. She also will not be financially responsible. That brings me back to the original question. Is she eligible for 12 weeks FMLA?

NaeNae55

She is eligible as long as she has a medical condition which her doctor certifies as requiring her to miss work. That could be 2 days or 12 weeks. She will not be eligible for any time to take care of the baby, unless the future parents freak out, decide they don't want the baby afterall and she is left "holding the baby" (extremely unlikely).

vmiller MO

I am still curious as to what does "surrogate mother" mean? If she has no biological connection to the child, i.e., is not the mother, then from a FMLA perspective she would have to meet the foster parent or "in loco parentis" definitions. If she is a person who will help the biological parents in parenting or even during the birth, then it seems to me that FMLA is not legally required. Of course, a company can offer her such leave, but I have doubts that the individual is legally entitled to FMLA.

NaeNae55

She's still pregnant, even if the baby she is carrying is someone else's. Pregnancy is a medical condition.

Theresa Gegen TX

Again, I think there will be very little legal authority on what the exact status of of surrogate mother is. It may be that she is not the biological parent for custody matters and responsiblity issue. But it is a biological fact that she is carrying this child and is pregnant. A court could consider her as a biological parent under the FMLA (the courts do not have to use the same defininition for the same terms under different statutes).

I have never heard of any surrogate parent decisions under the FMLA. If you want to take a chance that the employee won't complain about less than 12 weeks FMLA leave, or that if the employee does complain, the court will side with you -- go ahead. Most companies do not want to be the first decision on anything. It is an expensive place to be. The safest course would be to consider her as a biological parent and offer her the max leave. If you are wrong, she's just gotten a few extra weeks (who cares). If you don't offer her the max leave, and you are wrong, she sues and gets damages (which will cost the company more than giving her the leave in the first place).

Good Luck!

Theresa Gegen TX

I am assuming that surrogate mother means that she is physically caring the child of another couple (has had a fertilized egg implanted).

denisek

Theresa, the answer is yes. She will physically carry the baby for this couple. That's it.

I was recently told elsewhere, that under federal law, twelve weeks is what she is entitled to due to the birth of a child. We have decided that this is what she will be offered.