THINKING INSIDE-THE-BOX, KRILL V. CUBIST PHARMACEUTICALS: DOES FMLA NEED TO BE AMENDED TO ADDRESS GESTATIONAL SURROGACY AND HOW SHOULD COMPANIES ADDRESS PAID “MATERNITY” LEAVE?

Abstract

The purpose of this Note is to take the debate one step further in answering whether FMLA needs to be amended to extend leave to parents choosing to reproduce through gestational surrogacy. Additionally, this Note addresses how employers that provide paid maternity leave should handle mothers that use gestational surrogates. Part I of this Note discusses the background of gestational surrogacy and the current state of the law with respect to gestational surrogacy. Part II addresses the purpose and legislative intent of FMLA and the importance of the parent-child bond. Part II also argues that economic justifications for employers to provide paid maternity leave also applies to parents reproducing through a gestational surrogate. Part III analyzes FMLA as applied to gestational surrogacy and argues that there is no need to amend the Act.