Pregnancy and Disability

Yesterday I posted about a dilemma in parental leave policies: The desire for formal sex equality leads to equal “caretaking” leave for men and women; when this leave is paid by the employer, it is typically quite short. The reality of biological differences is dealt with by providing separately for “disability” leave for pregnant and birthing women, often for a much longer period. In practice, that means that a woman who gives birth has an extended opportunity to bond with and care for a new child, while people who become parents in other ways do not. This creates an early discrepancy in caretaking between birthing and non-birthing parents. When children are adopted, the family as a whole suffers from not having that extra leeway for caretaking.

A woman in New York has filed a suit challenging these inequities in a novel way: Kara Krill received 13 weeks of paid maternity leave when she gave birth to her first child. Krill was unable to bear another child, and she and her husband hired a gestational surrogate, who gave birth to twins. This time, Krill was allowed only 5 days of leave, under the company’s policy for adoptive parents. Her suit alleges disability discrimination, saying that if it weren’t for her disability, which required her to have her children through a surrogate, she would have given birth and been entitled to the full 13 weeks of leave.

Krill faces an uphill battle under current law. I’m drawn, however, to the idea of designing parental leave policy around the idea that the inability to give birth is a disability that should be accommodated—and not just for women.

Laws like the Pregnancy Discrimination Act aim to promote sex equality in the workplace by allowing women time to recover from birth. But as a result, non-birthing parents are made unequal in the home by having less time to bond with and care for their children. I would prefer a policy in which all new parents receive the same amount of leave. The length of the leave would have to be at least long enough to allow for recovery from birth (and could be supplemented by regular sick/disability leave in cases of complications and prolonged recovery). But the policy would recognize and embrace the fact that the leave also provides time for bonding and caretaking. The law already makes up (partially) for the fact that pregnant women are temporarily disabled from working, but it could also make up for the fact that other people are biologically disadvantaged in forming early relationships with their children.

If it sounds strange to say that a man is “disabled” because he can’t give birth, keep in mind that we already deem the healthy functioning of the female reproductive body to be a disability when it interferes with how we have chosen to structure the workplace. Laws like the Pregnancy Discrimination Act and the FMLA have nudged employment policy away from the assumption that all workers’ lives should conform to that of a stereotypical, traditional male who is only minimally involved in family caretaking. My proposal comes closer to taking the traditionally female case as the norm, making accommodations for the special needs of men.

You may also like...

3 Responses

  1. A.J. Sutter says:

    While I’m sympathetic to giving adoptive parents more time to bond with their children, one could also argue that your proposal equates — at least in an expressive sense — the disability of not being able to give birth with the physical impacts of giving birth. That isn’t very convincing.

    Maybe a better idea would be to remove the disability logic altogether from your argument, and emphasize the care & bonding aspect. This might not result in the uniformity you seek, but could be an improvement, while still preserving some distinctions that might be reasonable. E.g. maybe 10 weeks off for parents with newborns or adopted children younger than a certain age, while pregnant women might be eligible to take another, say, 3 weeks or so off before their expected due date. (BTW I’m entirely agnostic about: (i) whether it should be 10+3 or 11+2 or whatever; (ii) whether prospective fathers perhaps should be able to take leave before the birth too, such as when there are complications to the pregnancy; and (iii) whether 13 weeks is an adequate interval anyway.)

    Another possible tweak to your proposal: while 5 days sounds too short in any case, there probably should be progressively shorter times for leave based on the age of the adoptive child. Newborns, two-year-olds, and four-year-olds, e.g., don’t have the same needs. An argument based solely on the logic of disability wouldn’t recognize this (IMHO, reasonable) distinction.

  2. My wife and I were very fortunate when we adopted that both of our employers gave us several weeks of parental leave. It is especially important when adopting to have time to get to know and bond with your child.

    Neither of us was disabled or had diagnosed infertility, and if we had it wouldn’t have made this time any less important.

    Ms. Krill’s suit seems interesting and novel, but really these issues should be addressed through better policies, both public policy and HR policy.

  3. Jennifer Hendricks says:

    Thanks for the comments — I agree that better policy is the real need. The “disability” angle is interesting primarily in terms of thinking about what policies serve the goal of sex equality (which was the focus of the PDA and of Hibbs) rather than the (related and overlapping) question of what best serves families.