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Maternity and Paternity Leave: A Guided Approach for Employers With Employees Utilizing Surrogate Births and Other Reproductive Methods

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[Excerpt] Forty-one-year-old mother Ms. Kara Krill (“Krill”) filed suit[1] in the United States District Court for the District of Massachusetts on August 26, 2011 against her former employer, Cubist Pharmaceuticals, Inc. (Cubist), for refusing to provide Krill with certain fringe employment benefits, including “thirteen weeks of paid maternity leave for the birth and care of a child.”[2] These employment benefits were originally stipulated in Krill’s employment contract with Cubist.[3] Krill has suffered from Asherman’s syndrome since the birth of her first child in June 2007.[4] According to Krill’s complaint, Asherman’s syndrome is a “reproductive disability that substantially and prematurely limits . . . [a woman’s] ability to carry a child to birth.”[5] This debilitating disease caused, among several other negative side effects, Krill’s infertility.[6] Due to her reproductive incapacity, Krill and her husband opted to employ the services of a gestational surrogate to give birth to their biological child.[7] However, although the two originally planned for the birth of just one child, in September 2010, the couple was surprised to learn that the hired surrogate was actually pregnant with twins.[8] The couple, to substantiate the twins carried by their surrogate were biologically theirs, jointly obtained a pre-birth order from a Pennsylvania judge.[9] The pre-birth order establishes “legal and genetic parentages [of the twins] without having to institute adoption proceedings” and ensures the Krills were listed on the twins’ birth certificates.[10] Although employers in Massachusetts “are not required to provide paid maternity leave,”[11] Krill’s written employment contract with Cubist provided four variations of paid leave for the birth and care of a child.[12] However, the precise issue to be litigated in Krill’s pending case focuses on the disparity between two particular internal Cubist employment policies. This conflict stems specifically from the difference between the thirteen weeks of paid maternity leave sought by Krill under Cubist’s “Maternity Leave Policy,” intended for “female employees . . . for the birth of a child,” and a mere five days of paid maternity leave sought by Cubist under its “Adoption Leave Policy” intended for “employees . . . for the adoption of a child.[13]

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2012-12-11

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HR Review; Human Resources; maternity leave; paternity leave; employee benefits

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Required Publisher Statement: © Cornell HR Review. This article is reproduced here by special permission from the publisher.

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