Surrogacy and Maternity Leave

Postpartum recovery takes time and rest for everyone — including surrogates. As someone who will be carrying a baby for nine months and going through childbirth at the hospital, you’ll need and deserve some TLC. This means taking it easy and prioritizing self-care after the delivery.

But how can you rest with a demanding nine-to-five? And can you even take time off as a surrogate?

Even though you won’t be caring for the baby once you are discharged to go home, you’ll still want to take some time off and be compensated for the work you miss. For example, if your job offers maternity leave compensation, you will likely be able to have this benefit as a surrogate.

Below, we’ll 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 as it is for anyone else, so you’ll need time to heal postpartum.

Still, to benefit from FMLA, your employer must be covered and you need to be an eligible employee. It is 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 U.S. Department of Labor, you must meet the following criteria to be eligible for FMLA:

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

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

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

What am I entitled to as a surrogate and eligible employee?

If you’ve determined that you’re eligible, you can take 12 weeks of unpaid leave during a 12-month period for your pregnancy. Pregnancy is considered a serious health condition that qualifies you for FMLA.

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

Will employers give a 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 following states offer paid maternity leave to qualified individuals:

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

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

As an example, imagine you’re a surrogate in New Jersey. Under New Jersey’s temporary disability insurance program, eligible employees can take a paid leave to care for their own disability, including pregnancy. This would apply to you if you’re unable to work during the last weeks of your pregnancy and as you recover.

To be eligible for paid leave in any of the above states, you must have worked a certain number of hours or have been paid a specific 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 of work can be stressful, no matter the reason for the request. But if you prepare for the conversation you’ll have with your boss, it’ll be much easier to express your needs and negotiate an agreement. Here are some tips:

1. Know your rights

Keep in mind 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, know the federal, state, and local laws regarding labor and pregnancy. Consider if you’re eligible for FMLA and temporary disability in your state.

Also, know 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 for help or a brochure. Human resources can help you explore all of your options. Send what information you have to CFC, so we can incorporate your work’s information into the surrogacy agreement.

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

2. Know what you want

Determine how much time you’d like to take off before, during, and after your pregnancy. Most women require six to eight weeks to fully recover from pregnancy and childbirth with a newborn baby at home, so you might use this as a guide. Remember that for a surrogacy journey, generally surrogates take off 3 to 4 weeks of work because they are not caring for a baby at home. Be sure to consider 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 you can so they have time to prepare for your absence. If you’re planning to take an FMLA leave, you must give your employer at least a 30-day notice. For timing, remember that the first embryo transfer may not be successful. Talk to your journey coordinator if you need help with estimating journey 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 boss will know a friend or family member who has been a surrogate or someone who has had fertility challenges and needed a surrogate or IVF assistance.

5. Take notes

If you discuss maternity leave with your employer, be sure to take notes after your conversation. Jot down what was said, along with the date and time. Your record could come in handy if there’s any confusion about the discussion later on.

Will my intended parents reimburse me for lost wages postpartum?

Possibly, 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 would reimburse you for lost wages for that 7-day waiting period, as well as the remaining 40% of wages, so that you are made whole financially for work missed. The number of weeks for lost wages postpartum depends on your surrogacy contract and whether you had a vaginal delivery or a C-section. As of 2021, generally, if there are no medical complications, CFC surrogates receive 3 weeks of lost wages for a vaginal delivery and 4 weeks for a C-section, through a combination of maternity leave, intended parent 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 delivery as well depending on the terms of your surrogacy contract.

We’re here to help

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

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

If you’re curious about becoming a surrogate for CFC, please reach out to 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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