As Luscombe points out, what's really at stake isn't the lexical acrobatics of this particular maternity leave policy, but rather the point of maternity leave at all:
If maternity leave is offered so that women can recover from what is, at best, the incredibly messy and strenuous business of giving birth, then new mothers like Krill who use surrogates would not really deserve paid leave, since they are not doing the hard yards of labor and delivery.This connects to my earlier blog post about Gen Xers getting angry over parents "lucking out" in job benefits. What is the point of these benefits? Is it akin to sick leave, allowing for physical recovery? Is it an acknowledgment of the social responsibility of shaping good future citizens through parenting? Is it, as parts of the Gen X article suggests, an unfair bias toward the "hobby" of raising children?
But paid maternity leave could also be regarded the same way as paid leave for jury duty — something a company does out of civic responsibility. Supporting new mothers as they bond with their children, learn to care for them and give them a good start is beneficial for society and for the survival of the species.
Surely, labor and delivery is a trying physical act, and mothers need time to recover. Some mothers need more than others due to their own delivery experience (C-sections take longer to heal, for instance) or their own personal recovery, both physical and mental.
I took seven weeks off after my daughter was born, and then I worked another five weeks part-time. I was physically healed (enough to do my job anyway) within two weeks of delivery, but the all-consuming nature of caring for a newborn was too much. I certainly could not have returned to work and done an adequate job much earlier than I did.
Luscombe cites June Carbone, a law professor, who says "I can't see that an employer would be able to provide women with maternity leave for the purpose of bonding with a child, where the woman has not given birth, and not be obligated to provide men with the same benefit."
But if the purpose of maternity leave is not (at least solely) physical healing, then fathers, too, have the right to take time off and care for their children. If the parents plan to equally share parenting responsibilities, fathers have the responsibility to be present and active in these early days when routines are developed and lessons are learned.
All social ramifications and gender equality aside, this case raises some very practical problems. Most daycares will not accept children younger than 6 weeks. What, then, can a parent like Krill do when she's given only five days of leave?