By Julie M. Donnelly, Boston Business Journal

BOSTON (CBS) – A drug saleswoman for Cubist Pharmaceuticals is suing the Lexington antibiotics maker for denying her the 13-week paid maternity leave the company offers other biological mothers because her twins were delivered via a surrogate.

Kara Krill argued in her complaint that her inability to carry babies to term is a disability — and she is being discriminated against compared to other mothers without the disability.

Krill says in her suit, filed in U.S. District Court, that human resources executives told her she was only eligible for five days of paid leave after the twins’ birth because she did not need to physically recuperate from the delivery.

Cubist offers fathers and adoptive mothers five days.

Krill asserts that because she has a Pre-Birth Order signed by a judge in Pennsylvania attesting to the fact that the twins are her biological children, she should enjoy the same rights as other biological mothers.

She further claims she was verbally harassed by a Cubist executive and punished professionally.

Krill’s lawyer couldn’t immediately be reached for comment.

Cubist declined to comment.

Andrew Pickett, an attorney at employment law firm Jackson Lewis, who is not involved with the case, said maternity leaves are often funded by short-term disability plans and that without giving birth herself, Krill may not qualify as being disabled.

Lisa van der Pool of the Boston Business Journal reports

“Adoptive parents often choose that route because of reproductive problems, so it doesn’t seem that there is a meaningful difference between adoption and her situation,” Pickett said. Employers in Massachusetts are not required to provide paid maternity leave, but must provide unpaid leave under state and federal law.

Comments (21)
  1. mikey says:

    The real question is why maternity leave?

    If it’s for ‘recovery’, then yes, 5 days should be enough. If it’s for ‘bonding’ as a family, then it should be the full 13 weeks.

    5 days for the woman who did NOT deliver the children and not the 13 days for bonding seems as if the company has things reversed!

  2. petem says:

    mikey – your comment has me confused. can you repost?

  3. leslie says:

    If anything, this story proves once again what a joke the FMLA and the MMLA are! This country really needs to be providing at minimum a standard paid 3 month maternity leave for working mothers, whether that child was adopted, carried by a surrogate, or delivered via the biological mother.
    The United States is ONE of FOUR countries(Liberia, Papua New Guinea and Swaziland) in the world that provides NO paid time off for new parents. Countries in Europe, Asia etc… get paid leave ranging from 13 weeks to a year plus.

    1. frank says:

      THREE MONTHS?!?!?!?!? ARE YOU NUTS?!?!?!?!?!?!?

  4. Celia says:

    I do think adoptive parents should also be allowed maternity leave as well because even though your body doesn’t have to recover you still need to adapt to having a baby.

    I felt sympathy for the woman until she used the argument that she deserved more than adoptive parents because they were her biological children. Sorry I don’t care adopted or surrogate – the new mother still goes thru a similar experience. Hope that this woman never adopts a child because she’s already classified them as not the same as biological children even though she didn’t go thru the pregnancy herself.

  5. Tom says:

    So for the people supporting 13 weeks for this woman, should the dads get it too. If it’s not for recouperating and is more for bonding and “adjusting to having a baby” in your family, then men would be entitled to that benefit too. Most women need 6 weeks to recover from natural birth and 8 from c-section according to doctors, so 13 paid weeks would seem to be more than just physical.

    Also, I work for pharma too and my company pays 10k for parents to adopt or for each invitro try up to 6 tries…not sure if this company does? Most pharma companies pay maternity leave and 2 weeks paternity leave (my company)…so they are fairly progressive with benefits including medical/dental for “domestic partners” too.

    1. The Truth says:

      Men are just sperm donors and paychecks today. Their needs don’t matter.

    2. Angela says:

      dads can take that. some companies today offer “maternity leave” for dads.. Its all based on employer. Also moms and dads alike can take FMLA, its not always paid but its an option.

    3. Kelley King says:

      I worked for a very progressive company in Cambridge and all parents got 13 weeks. How the babies came to be, was not a criteria, and it was paid to both new moms and dads.

  6. emom says:

    ……………… REALLY NOW………………………. ok she didnt give birth, someone else did, OK so she now feels she is OWED 13 weeks of from work,, is she expecting PAY TOO.. I mean usually women get anywhere from 5 days to one month for non surgical births, I had a c-section and could only get a month off, in order of having more time of I had to use short term dissability.. so I could heal from surgery and be with my child, I also had to use most of my vacation time before std was allowed.. so AGAIN, what makes her rate to just take that much time of with or with out pay, If there was a company policy, and she knew of it then why complain now after the birth of her kids… SHE sure seems she was intending to get something out of this.. Does she plan on going back to her job after this, I HIGHLY DOUBT IT, if she should loose then what, she is an out of work mother going to try and collect unemployment, then what other services, food stamps, what will she do,,, with 2 new mouths to feed and not only all that what kind of message does she send her kids in the future, that if you can SUE the hell out of anyone that stands in your way even thou tit’s not moral .. Shame on her for not working with them , Oh maybe she had, and it turned she was partical right, it still does not seem right to go to all these steps to prove it all wrong,, company policy is policy, I wonder where this will go or end up,,, only time will tell, in the mean time she gets time off with her children but at what cost in the end. THE CHILDREN

  7. Kait 'ri says:

    She could qualify for FMLA….but NOT Maternity leave, as she didn’t physically have the baby herself. In some states, FMLA and Maternity leave are not the same thing (the only reason I know this is because I had to get clarification for employees of mine). She should have applied for FMLA when she knew she was having the children via surrogate. And classically speaking, not being able to carry a child to term IS NOT a disability. Sad, and a shame, but NOT a disability. As FMLA is determined by how much time you have at the company, and whether she’d taken it before.

    Oh and FMLA is UNPAID leave, once vacation and sick time has been used.

  8. cc says:

    By definition not being able to have children is a disability.
    # A physical or mental condition that limits a person’s movements, senses, or activities

    # A disadvantage or handicap, esp. one imposed or recognized by the law

    all new moms, no matter how they are moms, should be allowed 3 months paid time off when their babies come. Even though she is not PHYSICALLY giving birth to this baby, she needs time to readjust. Is it not more disgusting to put your kid in daycare as a freaking newborn baby just two weeks old? come on..

    1. Tom W. says:

      Giving birth is not a disability and she didn’t give birth. Give her time off without pay. She knew what the company policy was.

  9. Cis says:

    something isn’t right here – a lot of planning goes into surrogacy. one would think this woman had some level of intelligence and would have know her employers policies and eligibilty for FMLA beforehand, and made arrangements to deal with it. chosing to sue because she doesn’t agree with or like her employers policies, state and federal laws just seems like money grubbing.

    i agree parents and new child(ren) should have min. 3 months @ reduced pay to bond and savor the joy of being a family. FMLA is a joke – it provides for unpaid time off and is absurdly vague when it comes to foster and adoptive children. I learned first hand that the 12mo period starts the day the foster is placed, if you adopt in month 13 you get zip. thankfully my employer provided 12wks @ 80% of my salary as i had to use all my personal&vacation time dealing with foster related appts. yup employers, state and federal gov’t often punish those who try to do the right thing like giving a child a loving home, chance to excel.

  10. Parkomas says:

    The issue should not be leave or no leave, it is paid vs unpaid. By law she’s entitled to the 12 weeks unpaid under FMLA. Otherwise, since she didn’t actually give birth, her company shouldn’t be on the hook for the 13 weeks paid vacation for her to spend with her new children. Make her use her vacation time/sick time, and after that… it’s on her.

    1. Josefinie says:

      Perfect response Parkomas.

  11. leah says:

    I think the biggest point that is being glossed over here, is the welfare and health of this new child. Compensation aside, infants NEED that time with their mothers to establish a secure attachment. Babies who are too soon separated from their moms, don’t attach well, and will become fearful and anxious in their surroundings. It’s imperative to child development that a mother is with her child for even longer than the puny 3 months our country grants. There is a research that backs most of this up, and there is a reason why European countries allow new mothers up to a year off with their child. Some of the most important developmental milestones occur very early in infancy, and are facilitated by having a mother, NOT A BABYSITTER, there to assist.

  12. Suzanne says:

    California gives 4 wks prepartum, 6-8 wks short term disability for postpartum birth and 6 wks for parental bonding. This is paid leave except for the first week. She would have a hard sell stating she became disabled the day her babies were born by a surrogate.

  13. carol says:

    Do you think that hiring managers will think twice about hiring “birthing age” women, if this woman wins this?

  14. Tyred Ofit says:

    It doesn’t take 13 weeks to “bond” with a child. The 13 weeks is for physical recovery after actually giving birth to a child, not just for being the child’s biological mother. Her surrogate deserves 13 weeks’ recovery time; this woman does not. She needs to get over herself.

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