New Moms Through Surrogacy – How Should They Be Treated as it Pertains to Benefits?

A Lexington, Massachusetts pharmaceutical company, Cubist Pharmaceuticals, is being sued by an employee claiming discrimination for the company not providing her with the same paid maternity leave that they provide to other new moms.  What’s different in her case?  She used a surrogate for the pregnancy and therefore, the company is categorizing her pregnancy in the same way they would a new father and an adoptive parent.  This resulted in five days of paid leave instead of thirteen weeks of paid leave for mothers who bear their own children.  The employee argues that the children are biologically hers and that she should be entitled to the full leave.  Note:  there is no claim of violation of Family Medical Leave Act (FMLA) in this situation.

So what’s right in this situation?  It’s a tough one.  In all likelihood, the thirteen-week leave is probably covered by a Short Term Disability (STD) policy, not by the company directly.  The policy most likely does not have maternity defined in a way where the insurance company would approve the claim.  The intent of paid maternity through STD is for health recovery, not necessarily to spend time with your new baby.  (Heartless I know!).   Also, if the company is not providing other parents whose health was not directly impacted by the birth of a new child (fathers, adoptive parents) with a thirteen week leave, why would the fact that the child is biologically yours suffice as an argument.

In my opinion, the law has not been broken here.  Cubist is likely sticking to the guidelines of their insurance policy and other parental leave programs that they have in place.  While the program may not be the most family-friendly, most companies offer no paid leave to fathers or adoptive parents.

So what do you think?

For more information, you can read the Boston Business Journal’s news story.

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