"Kara Krill unfortunately suffers from Asherman's syndrome, a pregnancy-related medical condition that prevents her from giving birth, and is therefore protected under the Pregnancy Discrimination Act and the Americans With Disabilities Act," Rodman wrote in an email to ABCNews.com. "One who suffers from discrimination on the basis of her sex-including medical conditions related to pregnancy is entitled to relief from such discrimination under federal and state law. Ms. Krill was denied paid maternity leave because she gave birth through a gestational carrier."
June Carbone, a law professor at the University of Missouri-Kansas City School of Law, called this a "tough case."
"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," said Carbone. In other words, the company could take the same position with Krill as it does with new fathers -- that she doesn't need physical recovery time.
But, Carbone said, Krill would "clearly" be entitled to 12 weeks of unpaid leave under the federal Family and Medical Leave Act, and harassment for that is "inappropriate."
"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," Carbone said.
Naomi Cahn, a law professor at George Washington University who has written law review articles on family law, feminist jurisprudence and reproductive technology, said, "This is certainly one of the first federal cases involving a claim to benefits for paid leave by a woman who has had children through a surrogate. It raises complex issues about parental leave, assisted reporductive technology and employment discrimination." She believes that cases like Krill's will become more common as surrogate births increase, but the number of surrogate births per year is hard to pin down.
"Not all places that engage in surrogacy report, so they're not going to have complete statistics. It's very hard to collect statistics on this," Cahn said. The Society for Assisted Reproductive Technology reported fewer than 300 surrogate births in 2006.
Elena Mauer, site editor of TheBump.com, said surrogate births became more popular after celebrities began having them, including actresses Sarah Jessica Parker and Nicole Kidman.
"Our stance is that this is a new mom, and she deserves maternity leave. You deserve time to bond with your children, and it's a really important time for bonding and for feeling like a family together," she said.
Gaia Bernstein, a law professor at Seton Hall University School of Law in New Jersey, said when surrogacy agreements are enforced the law treats the intended mother as the mother "in all respects.
"The purpose of a maternity leave is not just to enable the mother to recuperate from giving birth but to enable her to bond with the baby," Bernstein said. "This is even more important for a mother who did not bond through pregnancy."