Does a FMLA Leave of Absence Apply to Someone Who Has a Child by a Surrogate?

An employer cannot terminate or penalize you for exercising your labor rights.
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Surrogacy is a viable option if you are unable to have children and do not wish to adopt. However, like any pregnancy, you may wonder about the impact it will have on your career. To that end, the United States Department of Labor's Wage and Hour Division offers the Family and Medical Leave act to give you time off to deal with a variety of issues. If you have or are considering a surrogate mother, it is important to understand where your rights apply within the FMLA.


The Family and Medical Leave Act was implemented by the United States Department of Labor to give leave for family and medical reasons. It allows for up to 12 work weeks of unpaid leave with full medical coverage under employee benefits. This includes things like childcare, family or personal health emergencies and time off if an employee's health condition impairs his ability to work.


Surrogacy is not explicitly mentioned in the FMLA conditions; however, it does state that an employee may take leave for "the birth of a child and to care for the newborn child within one year of birth," according to the United States Department of Labor website. The only difference with surrogacy in this context is that you have not physically carried the child. This detail is irrelevant, as the newborn belongs to her mother in all other respects.


It is the responsibility of your employer — both for legal and ethical reasons — to comply with the law. If FMLA leave is the only leave available, management cannot deny you leave based on a technicality like surrogacy. You are well within your rights to file a complaint with the United States Department of Labor. You can contact them on the phone at (866) 487-9243 for inquiries or to file a complaint. You may also do so online at


The FMLA is meant to cover employees who have no other form of leave offered by employers. A 2002 Supreme Court ruling determined that if you have not already been given paid or unpaid maternity leave through your employer, the FMLA does not apply. Essentially, the FMLA is a backup in case your employer does not have another system of benefits in place.

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