Woman denied maternity leave after surrogate birth

A US businesswoman is suing her employer after she was allegedly denied maternity leave following the birth of her twins through a surrogate mother.

Kara Krill, a clinical business manager at the Massachusetts-based company Cubist Pharmaceuticals, is claiming breach of contract, breach of good faith and fair dealing, discrimination on the basis of her disability and gender, and negligent misrepresentation by the company. She is seeking an injunction against Cubist, as well as compensatory and punitive damages.

Krill developed Asherman's Syndrome – a condition which rendered her infertile – following the birth of her first child. When she and her husband decided to have a second child they used a surrogate. The resulting twins are biologically related to both Krill and her husband.

Following her first pregnancy, Krill was given 13 weeks of paid leave under the company's maternity leave policy. However this time Krill says she was informed that she would only be entitled to five days of paid leave and up to $4,000 in expenses – as is offered to adoptive parents. Paternity leave under Cubist's policy is also five paid days.

Under Massachusetts law there is no right to paid maternity leave; only unpaid. Policy regarding paid maternity leave is at the individual company's discretion, and is usually part of the company's disability leave policy. The federal Family and Medical Leave Act entitles employees to 12 weeks of unpaid leave for a number of reasons, including care of a new child, regardless of the circumstances of birth.

In her letter of complaint to Cubist, Krill stated: 'But for my physical disability, I would be receiving the paid maternity leave offered by Cubist. Accommodating my disability would not require [Cubist] to provide me with any more benefit than other mothers'. Furthermore, she complained of discrimination and verbal abuse by her supervisor in the workplace due to her disability and surrogacy arrangement.

The case is among the first of its kind to come before the US federal court. Straddling the ground between the law relating to assisted reproduction, family law and employment law, it raises some difficult legal and ethical questions.

In a similar case in 2007, the Canadian Federal Court of Appeal ruled that an adoptive mother did not qualify for the same additional maternity benefits as a mother who gave birth through a natural pregnancy. This was because she had not undergone the 'physiological and psychological experience' of pregnancy. The Supreme Court of Canada refused to hear an appeal on the matter.

June Carbone, a law professor at the University of Missouri-Kansas City School of Law has said: 'I can't see that an employer would be able to provide women with maternity leave for the purpose of bonding with a child, where the woman has not given birth, and not be obligated to provide men with the same benefit'.

Commenting specifically on Krill's case, Carbone states: 'She may have a decent case that the employer promised her 13 weeks of paid maternity leave, since she is a legal mother who did not adopt, and that she relied on that promise, though the law generally requires that contract not be interpreted in a way that would make it discriminatory'.