New York Mom of Twins Born Through Surrogate Sues Employer for Denying Maternity Leave

Sept. 2, 2011 — -- In a case that mixes reproductive technology, family law and employment law, a woman who used a surrogate to give birth to her twins is suing her employer and a senior human resources analyst in a U.S. District Court in Massachusetts for refusing to grant her paid maternity leave.

Kara Krill, a clinical business manager on New York's Long Island, has claimed breach of contract, breach of good faith and fair dealing, discrimination on the basis of her disability and gender, and negligent misrepresentation on the part of Cubist Pharmaceuticals, headquartered in Lexington, Mass. She seeks an injunction and compensatory and punitive damages for employment law violations.

Krill, who developed a reproductive disability called Asherman's syndrome after she gave birth to her first child in June 2007, and her husband hired a surrogate mother, or gestational carrier, to carry and deliver their second child. After learning the gestational carrier was pregnant with twins in November 2010, Krill informed her employer that she expected to go on paid maternity leave when the twins were born in May 2011, according to the suit.

Krill and her husband also obtained a prebirth order that "established the legal and genetic parentage of Krill's twins without having to institute adoption proceedings," according to court documents.

When Krill had her first child in June 2007, she received 13 weeks of paid leave under Cubist's maternity leave policy.

But a Cubist human resources analyst informed Krill she would be entitled to five days of paid leave under Cubist's adoption leave policy and not any paid leave under Cubist's maternity leave policy. The company provides adopting parents who work 20 hours or more per week five paid days of leave plus up to $4,000 in expenses for the adoption, according to court documents. The company's paternity leave policy also provides male employees who work 20 hours or more per week five paid days of leave.

In an email to the human resources employee, Krill complained about what she said was discriminatory treatment.

"As we have previously informed you, the children being born are mine and were conceived with my husband. They are only being carried by [a gestational carrier] as a result of my physical disability. ... Cubist's treatment of me differently than other employees having babies is not fair and is placing me in an untenable condition," she wrote, according to court documents. "But for my physical disability, I would be receiving the paid maternity leave offered by Cubist. Accommodating my disability would not require [Cubist] to provide me with any more benefit than other mothers."

The suit also claims that Krill's direct supervisor subjected Krill to "verbal harassment and other adverse treatment," "frequently" patronizing Krill about her disability. Her supervisor "told her pointedly on several different occasions that she should not be entitled to any leave from Cubist for the birth of her children, whether paid or unpaid," according to court documents.

When Krill informed her supervisor she was required to be with her newborn children for a minimum of 12 weeks, her supervisor told Krill that she could "'put [her] twins in daycare,' so she could come back to work sooner.'" Her supervisor also informed Krill she was "changing her sales quota expectations and taking away one of Krill's largest customer accounts and assigning it to another Cubist employee who was not disabled, and not going out on maternity leave."

Francis McLoughlin, director of corporate communications at Cubist, said the company could not comment on ongoing litigation but that Cubist "tries to maintain positive work relations at the company."

The Boston Globe has included Cubist in its annual list of Top Places to Work in Massachusetts for the past three years. The pharmaceutical company ranked 24th among midsize companies and was the highest-ranking public life-sciences company in its category in November 2010.

Charles F. Rodman, Krill's attorney, said she was "anxious" for the federal court to determine her claims.

"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."