Surrogate Mother
denisek
24 Posts
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?
Comments
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.
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!!
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!
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.