Whose Pregnancy Is It?

Consider this hypothetical personnel issue: One of your employees is pregnant, but she is a surrogate for the intended parents (IPs), both of whom are also your employees. The intended parents entered into their relationship with the surrogate because the IPs cannot have a child together, either because of infertility or because they are of the same sex. The IPs want to attend the surrogate's prenatal medical appointments. Which of them is legally entitled to a leave of absence to do so?

California has no statute that bears directly on the issue, but several state and federal leave laws may apply.

Surrogacy Basics
There are two forms of surrogacy: traditional and gestational. A traditional surrogate (TS) carries a fetus formed using her own egg, so she is genetically related to the child. A gestational surrogate (GS) carries a fetus formed using eggs of either the intended mother (IM) or a known or anonymous egg donor, so she has no direct genetic relationship to the child. Gestational surrogacy is far more common because of the courts' and public's definition of motherhood and reluctance to separate a woman from her child.

Parental Rights
In 1993, the California Supreme Court recognized the intended parents in a gestational surrogacy agreement as the natural and legal parents. (Johnson v. Calvert, 5 Cal. 4th 84 (1993).) In Johnson, Mark and Crispina Calvert contributed the sperm and egg to form the embryo that was gestated by Anna Johnson, who tried to keep the child. The trial court enforced their written surrogacy contract, ruling that the Calverts were the child's parents and formally terminating Johnson's parental rights. The court of appeal agreed, as did the state Supreme Court, which decided that under the Uniform Parentage Act (Cal. Fam. Code §§ 7600- 7650)(UPA) the person who intended to procreate - in this case, the woman who provided her egg to the surrogate - is the natural mother. (Johnson, 5 Cal. 4th at 93.)

One year later, the court of appeal determined the parentage of a child born via traditional surrogacy after the IPs had separated. (In re Marriage of Moschetta, 25 Cal. App. 4th 1218 (1994).) The court held that the intended father (IF) and the traditional surrogate were the legal parents of the child, leaving the intended mother (IM) without parental rights. (Moschetta, 25 Cal. App. 4th at 1234- 1235.)

The potential complexity of the facts in a surrogacy case can lead to peculiar results. In one case, a GS was impregnated with an embryo formed from the egg and sperm of anonymous donors. (In re Marriage of Buzzanca, 61 Cal. App. 4th 1410 (1998).) The trial court identified six potential parents of the child: the egg donor; the sperm donor; the IM; the IF; the GS; and the husband of the GS. The trial court then reached an extraordinary conclusion: The child had no lawful parents. On appeal, the court stated: "Let us get right to the point: Jaycee [the child] never would have been born had not Luanne and John [Buzzanca] both agreed to have a fertilized egg implanted in a surrogate." (Buzzanca, 61 Cal. App. 4th at 1412.) The appellate court thus held that the IPs of a child conceived from the egg and sperm of anonymous donors and carried to term by a GS are the natural parents of the child; that is, when a married couple intends to procreate using a genetically nonrelated embryo implanted into a GS, they are the lawful parents of the child. As a result, the IF is obligated to support the child even if he files for divorce before the child is born. (61 Cal. App. 4th at 1429- 1430.)

Building on these precedents, the California Supreme Court decided three cases concerning lesbian couples who had children via surrogacy. Under the Uniform Parentage Act, the court ruled, two women can be the legal parents of a child born through surrogacy. (Elisa B. v. Superior Court, 37 Cal. 4th 108 (2005); Kristine H. v. Lisa R., 37 Cal. 4th 156 (2005); and K.M. v. E.G., 37 Cal. 4th 130 (2005).) The rulings apply to all lesbian, gay, bisexual, and transgender people.

Prebirth Judgments
California law allows for parentage to be adjudicated prior to the birth of a child, but a court must stay such orders until the moment of birth pursuant to section 7633 of the Family Code. Thus, the IPs may seek a prebirth judgment of parentage at any time during the surrogate pregnancy. Such a judgment will determine, among other things, whose names are to be placed on the birth certificate and who is responsible for medical decisions and costs affecting the newborn. Once the IPs obtain that prebirth judgment, the pregnant surrogate cannot claim that she is carrying her fetus to term.

Pregnancy Disability Leave
When surrogacy is involved, an employer must carefully consider the rights of both the IPs and the surrogate in determining who is entitled to what type of leave of absence.

The California Fair Employment and Housing Act (Cal. Gov't Code §§ 12900-12996) (FEHA), requires businesses with five or more employees to grant up to four months of unpaid leave to female employees who become disabled by pregnancy, childbirth, or related medical conditions. (See Cal. Gov't Code § 12945.) There is no length-of-service requirement before an employee is eligible for pregnancy disability leave (PDL). The leave must be provided if a pregnant employee is unable to perform any one or more of the essential functions of her job, or is unable to perform those functions without undue risk to herself, to the successful completion of her pregnancy, or to other persons. A woman also is considered to be "disabled by pregnancy" if she suffers from severe "morning sickness" or needs to take time off for prenatal care. (Cal. Code Regs., tit. 2 § 7291.2(g).)

FMLA
Private employers with 50 or more full-time, part-time, and temporary employees residing anywhere in the United States, its territories, or possessions within a 75-mile radius of a work site are covered by the federal Family Medical Leave Act. (See 29 U.S.C. § 2611(4); 29 C.F.R. §§ 825.104- 825.106.) Under the FMLA, employers must grant up to twelve weeks of unpaid leave to a woman who has been employed for at least a year and who has worked at least 1,250 hours in the preceding twelve months who is disabled by pregnancy, as long as the disability qualifies as a "serious health condition." (See 29 U.S.C. §§ 2601- 2654). This means an illness, injury, impairment, or physical or mental condition, including any period of incapacity related to pregnancy or for prenatal care. (29 C.F.R. §§ 825.115(b), 825.120.) The act also provides that eligible new parents may also take leave for "baby bonding." FMLA leave usually runs concurrently with state-mandated pregnancy disability leave (PDL).

CFRA
The California Family Rights Act requires unpaid leave for the same conditions as the FMLA, except that under CFRA the term "employee's own serious health condition" excludes disability caused by pregnancy, childbirth, or related medical conditions. (See Cal. Gov't Code § 12945.2(c)(3)(c).) This means a woman is not eligible for CFRA leave for pregnancy disability, but she may get PDL (under section 12945), which then would not count against her twelve-week CFRA leave entitlement (under section 12945.2) after the child is born and PDL is exhausted. IPs also have leave available under CFRA for baby bonding once the child is born. Leave under CFRA does not run concurrently with PDL, but it may run concurrently with leave under FMLA.

California employers also should be aware that the Domestic Partners Rights and Responsibilities Act of 2003 (Cal. Fam. Code §§ 297- 299.6) requires them to treat registered domestic partners the same as spouses for most purposes under state law, including their leave entitlements to PDL, CFRA, and under the FEHA.

Is Infertility a Disability?
Under the Americans with Disabilities Act of 1990 (42 U.S.C. §§ 12101, 12112(a)) (ADA), businesses with 15 or more employees must grant reasonable accommodations to employees with a disability. An unpaid leave of absence might be a reasonable accommodation under appropriate circumstances. (Humphrey v. Mem'l Hosps. Ass'n (9th Cir. 2001) 239 F.3d 1128.)

The ADA defines disability as "a physical or mental impairment that substantially limits one or more major life activities." Reproduction is a "major life activity," and infertility meets the ADA's criteria. (See Bragdon v. Abbott, 524 U.S. 624 (1998).) However, the U.S. Supreme Court has held that an individual is not considered disabled if the impairment can be overcome by mitigating or corrective measures, such as eyeglasses (Sutton v. United Airlines, Inc., 527 U.S. 471 (1999)) or prescription medication to treat, for example, high blood pressure (Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999)). In addition, the Court has ruled that individuals are regarded as disabled only when they are unable to perform a class or range of jobs (Albertson's, Inc. v. Kirkinburg, 527 U.S. 555 (1999)). California courts look to federal judicial interpretations of the ADA in construing analogous provisions of the FEHA. (See Hon v. Marshall, 53 Cal. App. 4th 470 (1997).)

Recent ADA Amendments
In March 2011, the Equal Employment Opportunity Commission (EEOC)adopted the final rule implementing the Americans with Disabilities Act Amendments Act (ADAAA). (See 76 Fed. Reg. 16,978.) These regulations broadly define and interpret what constitutes a disability in the workplace. The ADAAA also opens the door to temporary conditions being a disability under ADA. The EEOC says that even when a condition is expected to last fewer than six months, its effects may indeed be substantially limiting. (29 C.F.R. § 1630.2(j)(1)(ix).) The regulations state that in most situations extensive analysis should not be required to determine whether an employee is disabled. (See 29 C.F.R. § 1630.2 (j)(1)(iii)-(v).)

The EEOC regulations consider an employee disabled when there is some impairment of a major life activity. Such impairment exists if a major life activity is more difficult, time-consuming, effortful, or painful for the person as compared with most people in the general population. (29 C.F.R. § 1630.2 (j)(4).) Thus, an impairment that does not entirely prevent or severely restrict the activity can still be considered substantially limiting. When a condition interferes with major bodily functions, it assuredly limits major life activities. Reproductive problems fit squarely within these rules.

This raises the question: Is surrogacy considered a corrective measure for the disability of infertility? To date, no published opinion has addressed that issue. But under the Sutton case cited above, an individual is not considered disabled if the impairment can be overcome by mitigating or corrective measures. Therefore, if surrogacy is a corrective measure, the employee will not be deemed disabled under the ADA. And if surrogacy is not deemed a corrective measure, then IPs (either of the same or opposite sex) using surrogacy as part of their disability treatment might have to be accommodated with medical leave to attend their GS's prenatal appointments.

Back to the Hypothetical
In light of these laws, how should an employer respond when an employee requests leave for a surrogate pregnancy?

As to the surrogate, any covered employer must grant PDL under the FEHA. She is pregnant, regardless of who the parent is. If she qualifies and the employer is covered, she also gets FMLA leave at the same time she gets PDL. The surrogate does not qualify for CFRA leave while she is pregnant; however, if she exhausts her PDL but remains disabled by pregnancy before the birth, the ADA, ADAAA, and FEHA require that she be accommodated until the delivery, at which time CFRA might apply. The GS's spouse may also be entitled to unpaid leave under FMLA or CFRA to care for her serious health condition.

As to the IPs, they are not pregnant and therefore are not qualified for PDL or leave under FMLA or CFRA prior to the birth of the child. However, if their inability to reproduce - a major life activity - is due to a disability such as infertility, unpaid leave might be appropriate for prenatal care under the ADA, ADAAA, and FEHA; their corrective measure could be the use of a surrogate, whose prenatal appointments would be included. Also, once a prebirth judgment issues, the developing fetus is the future child of the IPs and not the surrogate's. So again, the IPs should be given time off to attend prenatal appointments. Of course, after the delivery, qualified IPs are entitled to leave under the CFRA and FMLA.

Caveats
The foregoing sections present only broad overviews of very complicated leave laws. Reference to the actual text is essential to their proper application. The employer's vacation, sick time, and paid time off policies should be consulted in conjunction with any request for leave; they may provide for leave that can run concurrently with PDL or FMLA/CFRA leave.

Also, this article does not consider the many antidiscrimination laws that employers should weigh as they determine which, if any, leaves of absence might apply to a surrogate or an IP requesting time off work for procreative purposes. Among these are Title VII of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000e-2000e-17) (Title VII), the Pregnancy Discrimination Act of 1978 (42 U.S.C. §§ 2000e(k), 2000e-2(a)-(c)) (PDA), and the Genetic Information Nondiscrimination Act of 2008 (Pub. L. 110-233, 122 Stat. 881) (GINA).

The Future
Today, more women than ever are acting as surrogates due to greater acceptance of the practice and advances in medicine and science. California employers are well advised to consider how they will keep their work force in place in the face of requests by employees involved in surrogacy for time away from the workplace. Like pregnancies themselves, the law in this area is still developing and growing.

Cynthia E. Fruchtman, a Santa Monica attorney, represents parties in the areas of labor and employment law as well as assisted reproductive technology law.

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