It can be really exciting to think about surrogacy and all that’s involved in the pregnancy, birth, and beyond. In addition to all of the super fun and exciting factors involved in surrogacy, it is also important to consider more practical matters, like what will happen after you give birth.

Most women are aware that they’ll need and want maternity leave after having a baby, but does that still apply if you aren’t bringing the baby home yourself? Are surrogates still eligible for maternity leave? And how in the world are you going to explain this to your boss?

Well, don’t worry. We’ve got the answers to all of your questions about maternity leave in the case of surrogacy.

Do surrogates get maternity leave? 

Yes, women who have a baby are eligible for Family & Medical Leave Act (FMLA) leave, regardless of what happens to the baby after delivery. Pregnancy and childbirth are physically and emotionally intense, even if you are having a baby for someone else. Surrogates will still need time after delivery to recover. This is especially true of women who have had a cesarean section (c-section) because it is major abdominal surgery.

However, there are a few requirements that a surrogate must meet in order to qualify for leave under the Family and Medical Leave Act (FMLA):

  • you must work for a qualified employer
  • you must have worked at least 1250 hours within the last year
  • your employer must have at least 50 employees within a 75-mile radius
  • you must have worked for your employer for at least 12 months (this doesn’t need to be consecutive)

If you qualify for FMLA leave, you’ll be given 12 weeks of unpaid leave and your job will be protected upon your return. If you don’t qualify for leave under the FMLA act, your employer may still grant you time off, or you may be able to use your available vacation or sick time.  The state where you live may offer some additional maternity leave for surrogacy. California is one such state.

It is important to speak with your employer or human resources department as quickly as possible so that you can plan for your recovery as early as possible. If you aren’t eligible for paid time off, you should be sure to build in additional compensation for lost wages into your surrogacy contract.

How long does the surrogacy process take? 

Surrogacy can take quite a bit of time, depending on how long it takes to get pregnant.

  • 1 to 3 months to be matched with future parents
  • 2 to 3 months for pre-cycle medical and psychological testing
  • 2 to 3 months to sign the legal contract
  • 1 to 2 months for the IVF cycle and embryo transfer
  • 9 months of pregnancy
  • Recovery from birth

If the surrogate doesn’t get pregnant on her first cycle, this will add on extra time, as she may need to complete additional cycles or testing.

Do you get maternity pay if you are a surrogate? 

Paid maternity leave from your employer is actually quite rare in the United States. However, most surrogacy contracts will include provisions for lost wages incurred during a surrogate’s recovery from pregnancy and birth. The details of your lost wages compensation will be negotiated during the legal process and are dependent on several factors, which you’ll review with your attorney.

Can you work while being a surrogate?

Assuming that you have a healthy pregnancy without complications, yes! However, this is a discussion that you should have with your doctor throughout your pregnancy. There may be periods where you may be expected to stay on bed rest or to rest at home. You may also want to take time off of work near the end of the pregnancy in order to get ready for the delivery. 

Talking to your employer

You will definitely need to speak with your employer about your pregnancy, even if you choose not to disclose that you are acting as a surrogate. The same goes for your co-workers. You are under no obligation to tell them that you are a surrogate. However, this can cause uncomfortable situations, like a surprise baby shower or other gifts for baby.

You may also want to avoid reassuring your employer that you will need a shorter maternity leave in the case of surrogacy, with the expectation that you will recover much quicker without a newborn at home. While this is likely true, you don’t want to force yourself back to work before you are physically or emotionally ready.