Many women considering surrogacy ask the same question: Do surrogates get maternity leave? It can feel confusing, because unlike traditional maternity leave, the surrogate will not be going home with a newborn. Still, the physical and emotional recovery after childbirth is the same.
In the United States, surrogates do have the right to maternity leave, but how it works depends on several factors. Federal and state surrogacy laws, employer policies, and the terms of the surrogacy contract all shape what leave looks like. On top of that, compensation packages are designed to cover lost wages, so surrogates are not left without income during recovery.
This article explains what surrogates should know about maternity leave. We’ll look at the laws that apply, how compensation works, what contracts usually include, how to talk to an employer, and even what intended parents can expect in terms of leave.
How Is Maternity Leave Different for Surrogates?
For most people, maternity leave means taking time away from work to both heal from childbirth and bond with their baby. For surrogates, only one of those applies. They do not take the baby home, but they still need time for their bodies to recover.
Some people assume that because surrogates are not new parents, they do not need leave. That is not true. Pregnancy and delivery are physically demanding, and recovery takes weeks. Vaginal births and C-sections both involve medical healing, rest, and gradual return to strength. The fact that the surrogate will not be caring for an infant does not change her medical needs.
Maternity leave for surrogates is about health, not parenting. Time off allows the surrogate to rest, attend postpartum checkups, and regain energy before going back to work. Employers and agencies alike recognize that without this recovery period, the surrogate’s well-being could be at risk. Understanding this difference helps clear up misconceptions and shows why maternity leave is just as essential in surrogacy as in any other pregnancy.
Do Surrogates Qualify for Maternity Leave?
What Does the Family and Medical Leave Act (FMLA) Cover?
Surrogates can qualify for maternity leave under the Family and Medical Leave Act (FMLA). This federal law gives eligible employees up to 12 weeks of unpaid, job-protected leave for certain family and medical reasons, including recovery from childbirth. For a surrogate, this means time off to rest, heal, and attend postpartum medical appointments without worrying about losing her job.
To qualify under FMLA, three conditions must be met:
- Employer size: The company must employ at least 50 people within a 75-mile radius.
- Length of employment: The surrogate must have worked for her employer for at least 12 months.
- Hours worked: She must have logged at least 1,250 hours in the past 12 months (about 24+ hours per week).
If all these requirements are met, the surrogate is entitled to maternity leave and guaranteed the same or an equivalent job when she returns. The law focuses on the medical recovery from the surrogate birth, not whether the employee is raising the baby. This distinction is crucial: surrogates are fully covered because they give birth, even though they are not new parents.
For example, a surrogate who has worked full-time at a large company for over a year can take up to 12 weeks off under FMLA. During that time, she can recover physically and emotionally with the assurance that her position will still be there when she returns.
What If FMLA Doesn’t Apply?
Not all surrogates meet the FMLA criteria. Many small businesses do not have 50 employees, and some surrogates may not have been with their employer long enough to qualify. In these cases, what leave is available depends on employer policy and state law.
Some companies create their own leave policies, allowing employees to take unpaid personal or medical leave even when FMLA is not required. Others may let employees use sick days or vacation time to cover part of their recovery. In workplaces that value flexibility, surrogates may be able to arrange a shorter leave or a gradual return to work.
Several states also offer their own protections. States like California, New York, New Jersey, and a handful of others provide family leave programs that may cover workers who do not qualify under federal FMLA. These programs can provide job protection and sometimes partial wage replacement. For instance, California’s Paid Family Leave program allows new mothers, including surrogates, to receive a percentage of their wages for several weeks after delivery.
Even without FMLA, surrogates are not left without support. Surrogacy contracts are designed to address lost wages and guarantee compensation during recovery. Agencies and attorneys ensure that intended parents cover this period so the surrogate does not experience financial hardship. In practice, this means that even if a surrogate does not qualify under federal law, she can still step away from work and focus on recovery without losing income.
What Workplace Laws Protect Pregnant Surrogates?
Does the Pregnancy Discrimination Act Apply to Surrogates?
Yes. The Pregnancy Discrimination Act (PDA) protects all pregnant employees, including surrogates. Under this federal law, an employer cannot fire, demote, or treat someone unfairly because she is pregnant or recovering from childbirth.
For surrogates, this means they are entitled to the same benefits and workplace accommodations as any other pregnant worker. An employer cannot deny a surrogate maternity leave simply because she will not be raising the baby. As far as employment law is concerned, she is pregnant and therefore covered.
For example, if an employer provides light-duty assignments to pregnant employees, they must offer the same accommodations to a surrogate. If the company allows other new mothers to use sick days during recovery, the surrogate must be given the same option. The law requires equal treatment, no matter the circumstances of the pregnancy.
FMLA vs. Bonding Leave
It is important to distinguish between two types of leave under the Family and Medical Leave Act:
- Medical recovery leave after childbirth.
- Bonding leave to care for a new child.
Surrogates qualify only for recovery leave, since they are not the legal parents of the baby. This does not reduce their rights, the recovery period is still fully protected. They can take time to heal, attend medical appointments, and rest without losing their job.
The difference matters mainly for classification. For a surrogate, her leave is considered medical leave, not parental bonding leave. But in practice, the duration of leave is the same: up to 12 weeks if she is eligible. This distinction ensures clarity with HR while confirming that surrogates do have the same recovery rights as any new mother.
State Surrogacy Laws
Beyond federal protections, state surrogacy laws also play a role. Surrogacy is legal in many states, but the details vary. Some states have clear laws supporting compensated surrogacy contracts, while others restrict or limit enforceability. These variations matter because contracts often spell out compensation for lost wages and maternity leave.
For example, in surrogacy-friendly states like California, contracts are enforceable and courts readily support intended parents and surrogates. This makes it straightforward to include specific terms for recovery leave and wage reimbursement. In states with less clarity, surrogates may need stronger legal guidance to ensure their compensation is secure.
Regardless of location, no state law removes a woman’s right to take time off work to recover from childbirth. The main difference is whether the surrogacy contract itself is recognized in court. This is why agencies and attorneys always adapt agreements to local laws, to make sure surrogates receive their guaranteed compensation and leave protections.
Is Surrogate Maternity Leave Paid or Unpaid?
Will Employers Pay for Surrogate Leave?
Whether a surrogate receives paid maternity leave depends entirely on her workplace. Some employers offer paid leave or short-term disability benefits to any employee who gives birth, and surrogates are no exception. In those companies, a surrogate may receive several weeks of full or partial salary, just as any other mother would.
However, not all employers provide paid maternity leave. Many rely on the federal Family and Medical Leave Act (FMLA), which only guarantees unpaid, job-protected leave. In those cases, surrogates may need to use their accumulated vacation days or sick leave to cover part of their recovery time. Others may simply take the time off unpaid, depending on company policy.
It is important to understand that an employer cannot create a separate rule just for surrogates. If a company offers six weeks of paid leave to new mothers after giving birth, the surrogate must be given the exact same benefit. The law requires equal treatment for all pregnancy-related leave, no matter who is raising the baby.
For example, if a surrogate works at a large corporation with a generous parental leave policy, she might receive full pay for six weeks after delivery. If she works at a small business without such benefits, she may only qualify for unpaid leave. This variation makes it essential to review workplace policies early in the surrogacy journey.
Which States Offer Paid Leave Programs?
In addition to employer policies, several states provide wage replacement programs for employees recovering from childbirth. These programs function like short-term disability insurance and are funded through payroll taxes. They allow women, including surrogates, to receive a percentage of their regular wages while they recover.
- California: Through State Disability Insurance (SDI), surrogates can receive 60–70% of their wages for 6 weeks after a vaginal delivery or 8 weeks after a C-section. California also offers Paid Family Leave, but since surrogates are not the legal parents, they qualify only for the disability portion related to recovery.
- New York: The state’s Disability Benefits Law provides partial wage replacement for pregnancy and postpartum recovery, typically covering up to 26 weeks of disability per year.
- New Jersey: Temporary Disability Insurance (TDI) covers a portion of wages during postpartum recovery. The state also offers Family Leave Insurance (FLI), though this applies only to intended parents, not surrogates.
- Other states: Massachusetts, Rhode Island, Washington, and a growing number of others have adopted paid family or medical leave programs. Each has its own rules, but all treat childbirth recovery as a qualifying event.
These programs vary in percentage of pay, maximum benefit amount, and length of coverage. Surrogates should check their state’s specific program to understand exactly what is available. Agencies and attorneys often help navigate these details to make sure surrogates can access every benefit they qualify for.
Do Surrogacy Contracts Cover Lost Wages?
Even if an employer or state does not provide paid maternity leave, surrogacy contracts are designed to protect the surrogate financially. Compensation packages almost always include reimbursement for lost wages during recovery. This ensures surrogates are not penalized for taking the medical leave they need.
Most contracts cover:
- Up to 6 weeks of lost wages after a vaginal delivery.
- Up to 8 weeks of lost wages after a C-section.
- Additional time if a doctor provides medical certification for extended recovery.
Some contracts also include coverage for time missed during pregnancy due to bed rest, complications, or required medical appointments. This means a surrogate is supported not only after delivery but also during pregnancy if her doctor advises her to stop working.
Lost wages are usually calculated based on the surrogate’s net income, using recent pay stubs as proof. Payments are made directly by the intended parents, often coordinated by the agency or escrow account handling the surrogacy compensation. In addition, many agreements also reimburse a spouse or partner’s lost wages if they must take time off work to attend the delivery or provide support.
Key takeaway: Even in situations where neither the employer nor the state provides paid maternity leave, surrogates do not lose income. Surrogacy contracts are written to guarantee financial stability during postpartum recovery. This protection allows surrogates to focus on healing without financial stress, knowing that both the law and their contract safeguard their rights.
How Do Surrogacy Contracts Handle Lost Wages?
What’s Included in Compensation Packages?
Surrogacy contracts are carefully designed to protect the surrogate financially. Beyond the base surrogate compensation for carrying the pregnancy, contracts also include reimbursement for specific expenses and lost income. This ensures that surrogates are never left covering costs out of pocket or losing wages because of the pregnancy.
Typical compensation packages include:
- Base compensation: the primary payment for being a gestational carrier, paid in installments throughout the pregnancy.
- Lost wages: coverage for income lost during postpartum recovery, and in many cases, for bed rest or doctor-ordered time off during the pregnancy.
- Partner’s lost wages: reimbursement when a spouse or partner takes time off work for medical appointments, embryo transfer, or delivery support.
- Childcare and housekeeping: coverage for additional help if the surrogate cannot care for her children or home during recovery or bed rest.
- Other allowances: maternity clothing, travel for medical appointments, and sometimes a stipend for meals or housekeeping near delivery.
This wide range of protections reflects the understanding that surrogacy is not just about carrying a baby but about making sure the surrogate and her family are supported during the entire process.
How Are Lost Wages Calculated?
Lost wages are usually calculated based on the surrogate’s net income. Agencies or attorneys review recent pay stubs to establish an average weekly wage, which becomes the basis for reimbursement. Payments are then made by the intended parents, often through an escrow account, so that the surrogate receives them on time and without complication.
The standard approach is:
- 6 weeks of wages after a vaginal delivery.
- 8 weeks of wages after a C-section.
- Extended time if a physician certifies that more recovery is medically necessary.
For example, if a surrogate typically earns $800 per week after taxes, her contract would ensure that she receives that amount each week for the recovery period. If her doctor recommends 8 weeks of leave after a C-section, she would receive 8 weeks of pay at her normal rate.
Documentation is an important part of this process. Surrogates may need to provide pay stubs, tax records, or employer verification to confirm income. If extended leave is required, a doctor’s note is generally necessary. These safeguards ensure that compensation is fair, accurate, and based on the surrogate’s real financial needs.
By structuring contracts this way, surrogacy agreements remove financial stress and give surrogates peace of mind. They can take the recovery time they need without worrying about bills or job security. Intended parents also benefit, knowing that their surrogate is able to focus fully on her health and healing.
Can Surrogates Work During Pregnancy?
Continuing Employment Safely
Most surrogates continue working throughout their pregnancy unless a doctor recommends otherwise. Surrogacy pregnancies are medically monitored just like any other, and many women are able to stay in their jobs with only minor adjustments. For example, office workers may continue their regular duties, while those with physically demanding jobs might need lighter tasks or reduced hours later in the pregnancy.
A surrogate’s ability to work also depends on how she feels. Fatigue, morning sickness, or other pregnancy symptoms can affect her capacity to maintain her usual schedule. It is common for surrogates to take occasional days off, especially after medical procedures like embryo transfer or during the later stages of pregnancy when physical demands increase.
What matters is balancing the surrogate’s health with her employment responsibilities. Doctors and agencies encourage surrogates to listen to their bodies and prioritize rest when necessary, even if it means reducing work temporarily.
Workplace Accommodations and Time Off
Employers are required under federal and state law to provide reasonable accommodations for pregnant employees, and this includes surrogates. Accommodations can make it easier to continue working safely, such as:
- Allowing extra breaks to rest or hydrate.
- Adjusting schedules to reduce long hours or heavy workloads.
- Providing modified duties to avoid lifting, standing for long periods, or exposure to risks.
- Offering temporary remote work options, depending on the job.
In addition, surrogates may need to use sick leave or personal days for medical appointments, which are often more frequent than in a standard pregnancy. Surrogacy involves fertility treatments, additional ultrasounds, and sometimes travel to specialized clinics. Contracts often cover lost wages for these absences if they are not paid by the employer.
For example, if a surrogate has to attend a full-day appointment for embryo transfer and misses work without pay, the surrogacy contract typically reimburses her for that day. This ensures she does not lose income for fulfilling necessary medical steps.
Overall, surrogates can and do work during pregnancy, but flexibility is key. With the right accommodations and contractual protections, they are able to manage employment while carrying out their surrogacy journey safely and comfortably.
When Is the Best Time to Tell Your Employer
Deciding when to share the news with your employer is a personal choice. Many surrogates wait until the end of the first trimester, when the pregnancy is more stable, before making an announcement at work. Others choose to wait until closer to 20 weeks, especially if they do not yet show physical signs of pregnancy.
Legally, there is no obligation to disclose that it is a surrogacy pregnancy. From an employment standpoint, the surrogate is simply a pregnant employee. She can choose to tell her employer only that she is expecting and will need maternity leave for recovery. Some surrogates prefer to keep the details private to avoid unnecessary questions or assumptions from colleagues.
That said, being open about the surrogacy can sometimes help. If the employer understands that the surrogate will not be taking bonding leave but only medical recovery leave, it may prevent confusion later. Each surrogate must decide how much to share, but either way, she is protected by law and entitled to the same treatment as any other pregnant worker.
Preparing a Leave Plan
Before approaching an employer, it is wise for a surrogate to prepare a basic leave plan. This should include:
- Expected timeline: estimated due date and recovery period (typically 6–8 weeks).
- Flexibility: an understanding that recovery may take longer if complications arise or if her doctor recommends extended leave.
- Transition of duties: ideas for how her workload can be managed while she is out.
- Accommodations: any anticipated needs during pregnancy, such as lighter duties, more frequent breaks, or schedule adjustments.
Having this plan shows professionalism and reassures the employer that the surrogate has thought ahead. It also helps avoid misunderstandings about the length and type of leave being requested.
Agencies and attorneys can also provide support. Many prepare template letters that surrogates can give to their employer, explaining that maternity leave is medically necessary for postpartum recovery. A doctor’s note can also confirm the expected duration of leave. Having documentation in hand makes the process smoother and ensures that the surrogate’s rights are respected.
Ultimately, the conversation with an employer should be clear, confident, and practical. A surrogate can emphasize that she values her job, is committed to returning, and is simply taking the medically necessary time to recover after giving birth. By framing the discussion around health and planning, she sets the tone for a supportive response at work.
Do Intended Parents Get Parental Leave Too?
Are Intended Parents Eligible for FMLA Leave?
Yes. Intended parents are entitled to parental leave under the Family and Medical Leave Act (FMLA), similar to adoptive parents. The law allows eligible employees to take up to 12 weeks of job-protected leave to bond with a new child. This applies even if they did not physically give birth.
For example, if an intended mother works for a company with 200 employees and has been there for several years, she can request FMLA leave to care for her baby born through surrogacy. The same rules apply as they do for birth or adoptive parents: the employer must have at least 50 employees, the worker must have been employed for 12 months, and she must have worked at least 1,250 hours in the past year.
This ensures that intended parents have the chance to take time off, adjust to life with their baby, and provide full-time care during the first weeks or months.
Do Employers Offer Paid Parental Leave for Intended Parents?
While FMLA guarantees unpaid leave, some employers go further and offer paid parental leave. These benefits are increasingly common in large companies and progressive workplaces. Paid parental leave is often extended to all new parents, regardless of how the child enters the family, whether through birth, adoption, or surrogacy.
In practice, this means an intended parent may be able to receive several weeks of fully or partially paid leave to stay home with their baby. For example, a company that offers 8 weeks of paid parental leave to new mothers and fathers would generally extend the same benefit to intended parents.
In addition, some states have paid family leave programs that apply to bonding time. For instance, California’s Paid Family Leave allows new parents to receive a portion of their wages for up to 8 weeks while bonding with their child. These state programs do not exclude surrogacy, which means intended parents can access them just like adoptive families.
What Documentation Do Intended Parents Need?
To use parental leave, intended parents usually need to provide documentation showing their legal rights to the baby. This may include a birth certificate listing their names, a pre-birth order or post-birth parentage order, or adoption paperwork if required by the state.
Parentage orders are especially important in surrogacy because they establish the intended parents as the baby’s legal parents from birth. With this documentation, HR departments can easily process parental leave requests. Without it, some employers may hesitate or misunderstand the situation.
By preparing legal paperwork in advance and sharing it with their employer, intended parents can ensure a smooth transition into parental leave. This helps them secure the bonding time they need without confusion or delays.
Why Work With Surrogacy By Faith for Support?
Understanding maternity leave and compensation in surrogacy can feel complicated, but with the right agency, the journey becomes much clearer and more secure. Surrogacy by Faith is not only a surrogacy agency, it is a faith-based community built on compassion, transparency, and experience.
What makes our surrogacy agency unique is that every woman on our team has been a surrogate herself. This means that when we guide surrogates and intended parents, we speak from personal experience. We know what it feels like to go through pregnancy for another family, to balance work and recovery, and to navigate maternity leave policies. That perspective allows us to offer advice and support that are not just professional but deeply personal and empathetic.
At Surrogacy by Faith, our contracts are written with clarity and transparency so surrogates are fully protected when it comes to lost wages, postpartum recovery, and overall compensation. We also provide personalized guidance to intended parents, helping them understand parental leave, legal documentation, and state programs that may apply. Beyond the paperwork, our team offers continuous support, emotional, medical, and legal, so that no one feels alone at any stage of the process.
We also work closely with trusted surrogacy professionals, including experienced surrogate attorneys, to make sure every contract is legally sound and every surrogate is fully protected. Our network of legal and medical experts provides an additional layer of security, so both surrogates and intended parents can move forward with peace of mind.
Choosing Surrogacy by Faith means choosing an agency that combines strong values with lived experience. Our Christian foundation shapes the way we care for each surrogate and family, ensuring every decision is guided by integrity and compassion. Whether you are considering becoming a surrogate or preparing to welcome your child, you will be surrounded by a team that understands your needs because they have been there themselves.
For intended parents considering surrogacy, the best way to start the journey is by exploring the intended parent application process. Women interested in becoming surrogates can learn more about the steps involved by reviewing the surrogate mother application process.