A case currently receiving a lot of attention in England involves a mother and her supporters campaigning for the right to paid maternity leave, a universal right for mothers there.
She has been denied paid leave because she did not carry or deliver her twins. She used a surrogate.
Fertility law experts have said that under British law, only mothers who carry a baby or who adopt are entitled to leave benefits. The Daily Telegraph has been chronicling the story.
In the United States, the case hasn’t stirred much attention. Perhaps that’s because, as we all know and many of us bemoan, Americans are not guaranteed paid maternity leave. Still, it raises broader issues that do affect parents here.
I asked Marni Hotchkiss, the creator of Bridge to Baby, a Web forum devoted to helping parents and potential parents work through fertility issues, for her thoughts.
Hotchkiss, a Bethesda mother, is expecting a baby who is being carried by a surrogate. She started by describing how much discretion U.S. employers have with parental leave.
“Although the Family Medical Leave Act provides that covered employers must give an eligible parent up to 12 weeks of job-protected leave to care for a newborn, there is no law requiring that an employer provide paid leave. So it is up to each individual employer to decide whether or not to provide paid parental leave benefits.
“This begs the question . . . Should an employer be allowed to decide who gets paid leave based on who gave physical birth to the baby? It’s hard to believe that mothers who have their own biological children via gestational carrier don’t have the same maternity leave rights as all other mothers.”
Hotchkiss explained that she gave birth to her son, now 4, and is expecting her second child via a gestational carrier in about four months.
“The only difference I foresee in the two scenarios is the recovery from the birth itself. I’m happy to say I won’t be spending quality time on a sitz bath or pumping breast milk, although I would have given anything to experience both again if it meant I could carry this child on my own.
“Yes, there is some medical recovery involved in giving birth but not enough, in my opinion, to warrant someone in my shoes not getting paid maternity leave while someone who gives birth does.”
She went on to emphasize that the mother’s recovery isn’t so much the issue as the needs of a newborn.
“The common fact is that all newborn babies, either born the old-fashioned way or via a borrowed uterus, need constant, round-the-clock care to survive. It’s about caring for the newborn that is most important. That care comes with the round-the-clock feedings, doctor visits, bonding and diaper changes. Did I mention diaper changes? And that comes with sleep deprivation for the parent . . . whether or not they have given birth.
“At the end of the day, it shouldn’t matter if you are a man, woman, have given birth, used a surrogate to have a child or adopt. All parents taking care of newborns should be treated the same and have equal parental leave rights.”
What do you think? Should surrogacy be treated by laws or employers any differently than pregnancy or adoption?