Surrogacy & Maternity Leave | Maternity Leave Policies

Postpartum recovery requires time and rest for everyone — including surrogates. As someone who will carry a baby for nine months and give birth in a hospital, you will need and deserve some TLC. This means making postpartum self-care easy and a priority.

But how can you relax in a demanding nine to five? And can you rest as an alternative?

Even if you won’t be taking care of the baby when you’re discharged to go home, you’ll still want to take some time off and make up for the work you missed. For example, if your job offers paid maternity leave, you can probably get this benefit as an alternative.

Below, we answer questions about surrogacy and maternity leave to help you prepare for your surrogacy journey.

Do surrogates get maternity leave?

Yes – whether you are a gestational or traditional surrogate, you are entitled to maternity leave under the Family and Medical Leave Act (FMLA). Giving birth as a surrogate is just as emotionally and physically challenging for anyone, so you will need time to heal postpartum.

However, to benefit from FMLA, your employer must be covered and you must be an eligible employee. It’s also possible that your employer will have a specific maternity leave policy with paid or unpaid leave.

What is an eligible employee?

According to the US Department of Labor, you must meet the following criteria to be eligible for FMLA:

  • You have worked for your employer for 12 months or longer.
  • You worked at least 1,250 hours in the 12 months before the leave started, or about 24 hours a week.
  • You work at a location where there are 50 or more employees within 75 miles of the workplace.
What is a covered employer?

How do you know if you work for a covered employer? Here’s how to say:

  • You work for a government agency or public school.
  • You work for a company that employs at least 50 employees for 20 work weeks or more in the current or previous calendar year.

What are my rights as a substitute and eligible employee?

If you decide you qualify, you can take 12 weeks of unpaid leave in a 12-month period for your pregnancy. Pregnancy is considered a serious health condition that qualifies you for FMLA.

During this time, your work will be protected. Your employer must also offer the same health insurance benefits you had before your leave.

Will employers provide surrogate maternity leave pay?

Whether surrogate “mothers” are entitled to paid maternity leave often depends on the employer. Although many employers still do not offer paid maternity leave, the number of workplaces that provide the benefit of paid maternity leave has increased. According to the Society for Human Resource Management and Oxford Economics, 55% of employers offered paid maternity leave in 2020.

Where you live can also determine whether you’re eligible for paid leave. The The following states offer paid maternity leave to qualified individuals:

  • California
  • Colorado
  • Connecticut
  • New Jersey
  • New York
  • Oregon
  • Rhode Island
  • Washington

Washington, DC, also offers paid leave to people caring for a serious health condition.

As an example, imagine you are a surrogate in New Jersey. Under New Jersey temporary disability insurance program, eligible employees may take paid leave to care for their own disability, including pregnancy. This applies to you if you are unable to work during the last weeks of your pregnancy and while you are recovering.

To be eligible for paid vacation in any of the states above, you must have worked a certain number of hours or been paid a certain amount by your employer. Check your state’s labor laws to learn more about maternity leave, what’s available to employees, and what requirements you must meet.

Tips for talking to your employer about maternity leave for surrogacy

Asking to take time off from work can be stressful, regardless of the reason for the request. But if you prepare for the conversation you will have with your boss, it will be easier to express your needs and negotiate an agreement. Here are some tips:

1. Know your rights

Remember that you have rights as both an employee and a surrogate, and these rights are meant to protect you. Before you talk to your employer about maternity leave, learn about federal, state, and local laws about labor and pregnancy. Consider whether you are eligible for FMLA and temporary disability in your state.

Also, find out what rights you have through your employer’s maternity leave or short-term disability policies. Some short-term disability policies are designed to include maternity leave. If you have questions about your workplace policies, ask your human resources department or a brochure for help. Human resources can help you explore all of your options. Send what information you have to CFC, so we can include your employment information in the surrogacy agreement.

By knowing your rights, you’ll be ready to have an informed conversation with your manager, and you’ll be ready to agree on a plan that meets your and your employer’s needs.

2. Know what you want

Determine how much time you want to take off before, during, and after your pregnancy. Most women are in need six to eight weeks to fully heal from pregnancy and giving birth with a newborn baby at home, so you can use it as a guide. Note that for a surrogacy journey, surrogates generally take 3 to 4 weeks off work because they are not caring for a baby at home. Be sure to account for any time you need for appointments related to OBGYN check-ups, as well.

3. Don’t wait

Let your employer know about your surrogate pregnancy as soon as possible so they have time to prepare for your absence. If you plan to take FMLA leave, you must give your employer at least 30-days notice. For timing, remember that the first embryo transfer may not be successful. Talk to your journey coordinator if you need help estimating travel timelines!

4. Meet face to face

If possible, meet with your boss in person to tell them about your surrogacy journey. With a face-to-face meeting, the conversation can flow naturally, and you can ask questions as they arise. It’s also easier to avoid misunderstandings when you meet in person. Chances are, your employer will know a friend or family member who has been a surrogate or someone who has had fertility challenges and needs a surrogate or IVF help.

5. Take notes

If you are discussing maternity leave with your employer, be sure to take notes after your conversation. Write down what was said, including the date and time. Your record can be used if there is any confusion about the discussion later.

Will my intended parents reimburse me for lost wages after giving birth?

Probably, yes! For example, if your maternity leave or short-term disability policy through work covers 60% of your wages after a 7-day waiting period of unpaid leave, your intended parents will reimburse you for lost wages for the 7-day waiting period, as well as the remaining 40% of wages, to make you financially whole for the work missed. The number of weeks for lost wages after childbirth depends on your surrogacy contract and whether you had a vaginal delivery or C-section. In 2021, in general, if there are no medical complications, CFC surrogates receive 3 weeks of lost wages for a vaginal birth and 4 weeks for a C-section, through a combination of maternity leave, intended parental reimbursement, and/or short-term disability. If you are married, your spouse may be entitled to several days of lost wages at the time of childbirth, also depending on the terms of your surrogacy contract.

We are here to help

Being a surrogate can be a fun, beautiful, and rewarding experience! However, it’s important to make sure everyone is on the same page, including your employer. At Creative Family Connections, we’re here to offer guidance on how to broach this topic with your employer. Honesty and transparency are key.

We stand by our surrogates before, during, and after pregnancy, offering our support and advocacy for their well-being. As a surrogacy agency and law firm rolled into one, we are ready to answer any questions you may have about gestational surrogacy, your compensation as one of our surrogates, and labor laws in your state.

If you would like to be a surrogate for CFC, please contact us for more information or fill out our surrogate application today. We will then schedule an intake call with you to answer questions and explain the surrogacy process step-by-step.

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