After months-long maternity benefits fight, parents who had child through surrogacy say their 'hands are tied'

A Manitoba couple whose daughter was born through surrogacy say they are running out of options in their months-long fight for a top-up on maternity leave benefits.

Jaclyn and Tim Blazanovic had their daughter, Amelia, through surrogacy in October 2023, after trying to have a child for 15 years, including five failed IVF attempts.

But the wording of the collective agreement covering Jaclyn's job as an operating room assistant at Pan Am Clinic means since her daughter was born through surrogacy, Jaclyn isn't eligible for top-up maternity benefits.

"They made us feel like we don't deserve this child, and Jaclyn outright has said … 'They're trying to make me feel like I'm not the mother,'" Tim said.

Jaclyn returned to work in November, but Tim says their ineligibility to receive the maternity benefit left them turning to family and friends to help pay bills and buy basics like food and diapers.

"It's insulting and ridiculous and we're saddened, and at this point, it's not even about the money anymore, it's about the basic principle."

While on maternity leave, Jaclyn got employment insurance at 33 per cent of her regular pay, but not the top-up benefit the collective agreement includes for paid maternity leave, which would bring her to 93 per cent of her pay.

That's because of a section of the agreement in place at the time that stated the employee must provide documentation from a medical practitioner certifying that the employee is pregnant, and specifying the estimated date of their delivery. 

Since Jaclyn wasn't the birth mother, they couldn't meet that requirement.

Jaclyn's union, the Canadian Union of Public Employees Local 204, filed a grievance with the Winnipeg Regional Health Authority on behalf of the couple.

But this past week, the couple met with a union representative who told them a lawyer is recommending against pursuing arbitration.

Tim said the couple are continuing to fight for arbitration, but updated language in CUPE's new collective agreement, which was ratified in October, suggests CUPE won't pursue it.

"Our hands are tied, but it seems like the government and the union have made it very clear that they have no interest in pursuing this or even entertaining it," he said.

New contract didn't change rules

The new agreement says parents who have a child through surrogacy and adoption are still not eligible for the maternity leave top-up.

"We made some gains in the collective agreement, but we didn't change the maternity leave top-up definition, because that's tied to the employment insurance legislation … which is where the definition for maternity leave comes from," said Shannon McAteer, CUPE's health-care co-ordinator.

The federal government's rules distinguish between parental leave benefits — available to all parents — and maternity leave benefits, which it says are "only available to the person who is away from work because they're pregnant or have recently given birth." That's the definition CUPE's new contract uses for determining maternity benefits as well.

WATCH | The Blazanovics talk with CBC about their fight for benefits in June:

Manitoba parents who had child through surrogacy fighting for mat leave benefits

6 months ago

Duration 2:16

Tim Blazanovic says his wife Jaclyn can't get top-up benefits from her job at Pan Am Clinic. She met most of the requirements for paid maternity leave under the collective agreement, except being able to provide a certificate of pregnancy and her estimated due date.

McAteer said CUPE is lobbying for federal changes so it can eventually update language in its collective agreements around the eligibility requirements for maternity leave.

She said the union can't comment on the ongoing grievance process involving Jaclyn Blazanovic, including whether the union will push for arbitration, but said CUPE will continue to support the family.

"I think it's important, because whether you have a child by adoption, naturally or by a surrogate, you're still the parent," she said. "There's a bit of a hole, I'll say, in the human rights legislation, and I think it all needs to be changed."

The Blazanovics also sought advice on whether to file a complaint with the Manitoba Human Rights Commission in the spring, but were told that a 2021 Supreme Court decision makes it clear that in cases involving collective agreement disputes, the commission has no jurisdiction, meaning it's unlikely a complaint would be successful. 

The Manitoba Human Rights Commission did not respond to CBC requests for comment on this story.

Private member's bill pushed for change

The Supreme Court ruling has created problems for union workers who don't have recourse to the Human Rights Commission in the same way non-union workers do, said Adam King, an assistant professor with the University of Manitoba's labour studies program.

"We generally understand union workers to have greater protection because they enjoy the ability to bargain and negotiate collective agreements … but when it comes to the protection of human rights, it can be a challenge, especially if your collective agreement is silent on a particular issue," King said. 

He said the Blazanovics might be out of options if CUPE does not take the grievance further, but their case should motivate the union to look at its collective agreement and address any limitations in the next round of negotiations.

There have been efforts to extend the rights of adoptive parents and parents of children through surrogacy.

In 2023, a private member's bill by a Saskatchewan Conservative member of Parliament suggested changes to legislation that would have created a new 15-week leave benefit for adoptive parents and parents through surrogacy — essentially matching the paid maternity leave for anyone who gives birth.

The bill ultimately failed to pass.

However, Ontario's labour minister said last month he plans to propose a new 16-week job-protected leave for adoptive parents and parents through surrogacy.

Ontario parents Baden and Zane Colt, who had a daughter through surrogacy in July last year, say they advocated for equitable parental leave to get time off to bond with their daughter. 

The proposed upcoming legislation in their province has them feeling optimistic for other adoptive parents or those with children through surrogacy. 

"I think politicians are realizing that no two families look the same," Zane told CBC.

"So changes need to be made for equity's sake, and to recognize the diversity of family building across the country."