ROCHESTER, N.Y. – New York State became the first state in the country on Jan. 1 to offer paid leave to pregnant employees before they give birth, through the Family and Medical Leave Act. But does it apply to surrogates who need prenatal care?

Mary asks: “With the new maternity FMLA law that just passed, does it also apply to surrogates? Can the mother of the child the surrogate is carrying also take the FMLA leave?”

Mary is referring to a policy Gov. Kathy Hochul announced at the start of the year. It says “any privately employed pregnant New Yorker is now able to receive an additional 20 hours of paid leave for prenatal care.” That care includes things like exams, procedures, and fertility treatment.

Looking through the frequently asked questions on the state’s website, there’s no mention of surrogacy. So News10NBC contacted the New York State Department of Labor for clarification.

The DOL says the intended parents are not eligible, only the pregnant employee is.

A representative says: “An employee who is acting as a surrogate would qualify for New York State Paid Prenatal Leave because they are an employee receiving health care services during or related to a pregnancy. Similar to spouses, partners, and other support persons, the intended parents do not qualify to receive paid prenatal leave to attend appointments with the surrogate.”

Even if you’re biologically related to the baby the surrogate is carrying, you will not qualify for prenatal leave. You will only qualify for those 20 hours if you are pregnant.

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