Manitoba parents who had child through surrogacy fighting for mat leave benefits
Benefits denied for new mom under contract that 'states she has to be the natural birth mother,' says husband
A Manitoba couple say they're being discriminated against and are left fighting for maternity benefits because they had their daughter through surrogacy.
Jaclyn and Tim Blazanovic welcomed Amelia to the world last October through surrogacy, 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 — a discovery that's left the new parents frustrated.
"[It's] like I'm not a mother," said Jaclyn.
"Like I'm less of a person," she said.
Tim said Jaclyn met most of the requirements under the Canadian Union of Public Employees Local 204's collective agreement for the paid maternity leave plan.
The main sticking point was a section of the agreement that states the employee must provide documentation from a medical practitioner certifying that the employee is pregnant, and specifying the estimated date of their delivery.
"The collective agreement states she has to be the natural birth mother," said Tim.
"So even though [Amelia is] born of us, through a surrogate, bearing our last name, given to us at birth ... they refuse to wish to pay us because they're hanging on this thread that she's not the natural birth mother."
The denial of benefits is "very unfair," said Tim.
"We're just looking for equality, because she pays the same union dues as all the other people who work for the province, and all the other staff who get pregnant and have a child. We can't be the only ones that have done surrogacy. We can't be the only ones who think this is unfair."
Tim said even Jaclyn's boss at Pan Am Clinic asked their human resources consultant why she wasn't getting paid.
"She wanted to help us," he said. "Everybody wants to help us, but everybody's hands are tied, or so they keep saying, and nothing's changing."
While Jaclyn is getting employment insurance at 33 per cent of her regular pay, she isn't getting the top-up benefit the collective agreement includes for paid maternity leave, which would bring her to 93 per cent of her pay.
She's been off work since last fall and is set to return in November, but admits she's now having thoughts about going back early. Child care would then become an obstacle, the couple said.
CUPE has filed a grievance with the Winnipeg Regional Health Authority and is set to have a hearing July 2.
Unfortunately, "this could take years," said Tim. "In the meantime, bills keep coming," including all the expenses that come along with having a baby.
They also tried to file a complaint with the Manitoba Human Rights Commission.
But in an email, an intake officer told Jacyn 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.
Instead, the matter has to be settled through the union's grievance procedure, the email said.
Opportunity for 'rethink' on parental leave: lawyer
Under CUPE 204's collective agreement, maternity leave "is more or less associated with biologically giving birth to a child, and this is where the dispute has arisen over the whole surrogacy issue," said Bruce Curran, an associate law professor at the University of Manitoba whose main areas of teaching are labour and employment law.
He reviewed the collective agreement before speaking with CBC.
Curran said speaking generally, employers are allowed to offer top-up payments for parental and maternity leave. The CUPE agreement provides for maternity leave of 17 weeks, and unpaid parental leave up to 63 weeks.
It's not uncommon for new parents to "combine or mix and match" those two periods, he said.
"I think that what the individual in question here … [is] kind of taking offence to, or umbrage to, is that had she biologically given birth to a child, she could've taken both parental leave and maternity leave, and she could have received those top-up payments from her employer during the period of her maternity leave."
Curran said the upcoming hearing is an opportunity for the couple to meet with "people with decision-making authority" and try to negotiate a resolution. But if that doesn't happen, the complaint will likely proceed to arbitration, and a date for that hearing could be a long way off, he said.
The case is "interesting and important" in that it speaks to the need for both unions and employers to consider different types of families in their workplaces, he said.
"Surrogacies and other family forms are going to become increasingly important as we go on," said Curran, but "we haven't seen — at least that I'm aware of — a formal arbitration case on this previously to kind of give us some law on it."
Employers and unions, "but also the general public, should take this as an opportunity to perhaps rethink what are our standard kind of plans, or how we typically handle these kinds of leaves," he said.
Working on change to contract's language: CUPE
CUPE 204's last collective agreement expired March 31. The union is currently bargaining for a new one.
In a bargaining update sent to workers at Pan Am Clinic dated May 13, CUPE said some language agreed on with the province would include maternity leave for parents who have children through surrogacy.
CUPE's health-care co-ordinator and lead bargainer, Shannon McAteer, said she couldn't say much about the negotiations or the ongoing grievance process, but said the Blazanovics' case reinforced the need to push for "more progressive language."
She also said the top-up language in the last contract had been in place "for quite a while."
"I wasn't aware that there was a gap, I will call it, in the coverage," she said. "But as soon as we became aware of it, we definitely brought it forward."
Meanwhile, Tim said his family isn't just settling for influencing future collective agreements.
"We still have to find that daycare and continue fighting this fight … until somebody either hears us or says blatantly, 'We're not going to help you, ever,'" he said.
"We're not willing to just give up."
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