Legal Question in Employment Law in Washington

Re: couple using surrogate and medical leave

Your employer is in error. They can insist on medical certification if you are asking leave to get medical treatment, because you are ill, or to care for an immediately family member who is ill. If you are asking for time off to welcome a child into your home, they can ask for proof that you have indeed grown your family by one (or, if you are the same person who wrote within the last 24 hours, by two). FLMA provides that you may have leave whether the child comes to you by birth, adoption or for foster care. Therefore, medical proof of birth is not helpful in all cases.

Now, here comes the tricky bit. I am assuming that you have some sort of contract with the surrogate, and that arrangements have been put in place so that once the child is born, the surrogate can release legal custody to you and your spouse. These documents should be adequate to show that you are about to become a new parent and are entitled to leave. However, I have a hunch that you consider this arrangement a private matter (and so it is!) and are not interested in having your employer know the details of how your new family member got his or her start in life. I would suggest that you contact the attorney who prepared the paperwork for this arrangement, and see what is available that would provide evidence that you and your spouse are about to become the child's parents in the eyes on the law, without getting into the clinical details of how conception occurred in this case. As this law also applies to adoptions and the arrival of foster children, that's all your employer needs to know.

Good luck!