A legally married same sex couple who are having a kid through a surrogate mother. Are they authorized maternity/paternity leave?

SSG Robert Burns — Thu, 05 Dec 2013 12:55:09 -0500

I just thought about this but I'm sure this is coming up real soon if it hasnt already. What do you guys think? Is it discrimination if they can't get it?

Response by SGM Matthew Quick made Dec 5 at 2013 12:57 PM

SGM Matthew Quick — Thu, 05 Dec 2013 12:57:57 -0500

If the surrogacy opportunity is afforded to traditional couples, it'll be offered to same-sex couples.

Response by LTC Private RallyPoint Member made Dec 5 at 2013 2:35 PM

LTC Private RallyPoint Member — Thu, 05 Dec 2013 14:35:16 -0500

Not according to ALARACT 062/2009

"PATERNITY LEAVE IS ONLY AUTHORIZED FOR A MARRIED SOLDIER ON ACTIVE DUTY, TO INCLUDE TITLE 10 AND TITLE 32 ACTIVE GUARD AND RESERVE (AGR) DUTY, WHOSE WIFE GIVES BIRTH TO A CHILD ON OR AFTER 14 OCTOBER 2008. PATERNITY LEAVE IS A NON-CHARGEABLE ADMINISTRATIVE ABSENCE. PATERNITY LEAVE LEGISLATION CANNOT BE APPLIED TO SINGLE SOLDIERS FATHERING A CHILD OUT OF WEDLOCK. "

Response by SSG Robert Burns made Dec 5 at 2013 4:18 PM

SSG Robert Burns — Thu, 05 Dec 2013 16:18:17 -0500

I used to work on L&D and right now what happens if the soldiers want to take leave it has to be regular leave. Mothers who give birth receive conleave. In order for the father to receive paternity leave (nonchargeable) he has to be married and it says in the ALARACT "whose wife gives birth".

So what I see in the future is a same sex female couple to which one was impregnated artificially or by someone else gives birth; she will get conleave. But "paternity leave" (nonchargeable) by definition is for a man. A woman cannot be paternal. So the reg would have to be rewritten.

Response by Sgt Matthew O'Donnell made Jul 8 at 2014 3:02 PM

Sgt Matthew O'Donnell — Tue, 08 Jul 2014 15:02:24 -0400

I believe it follows under the same rules as adoption.

Response by SSG Private RallyPoint Member made Jul 8 at 2014 8:35 PM

SSG Private RallyPoint Member — Tue, 08 Jul 2014 20:35:13 -0400

SSG Robert Burns and 1SG Private RallyPoint Member do make a valid point, the current AR 600-8-10 Leave & Passes hasn't yet caught up with all the new updates. The 'paternity leave' we have known is changed to 'parental leave', the change was to be implemented by 08/13/2013 * see DoD Instruction Number 1327.06 The ALARACT 062/2009 mentioned by LTC Private RallyPoint Member , no longer applies as it was superseded by ALARACT 212/2013. SSG Robert Burns , you don't mention if they are dual military or if one is the service member only so I can only provide this;

According to Title 10, U.S.C., Section 701, the military provides up to 42 days of maternity leave and up to 10 days of paternity leave. A member who adopts is eligible for 21 days of leave to be used in connection with the adoption. In the case of a dual military couple adopting, only one member of the couple can use the adoption leave. This leave may be used in addition to other leave provisions.

A change was addressed on the FY 2013 NDAA with the coming repeal of DOMA. The language was change on maternity leave at 42 days and increases adoption leave for the primary caregiver to 42 days. For dual military couples who adopt, it provides 10 days of leave to the spouse who is not the primary caregiver. I could only guess that the it would be non-chargeable leave to the one who is not the primary care giver. When one addresses paternity leave, you can't reference it in the reg because it isn't there, the last RAR to AR 600-8-10 was 2011. The only reference is the FMLA. If anyone has any new info please do share, I would be very interested to know as well as everyone else.

Response by CPT Private RallyPoint Member made Jul 8 at 2014 9:15 PM

CPT Private RallyPoint Member — Tue, 08 Jul 2014 21:15:39 -0400

My mind was just blown by this. This was never an issue in the Infantry but now it is something we must consider with the same sex couples being married.

I just hope when this does become an issue the Army will allow a smooth process for this to occur as if it were a traditional couple.

Response by SSgt Gregory Guina made Jul 8 at 2014 10:28 PM

SSgt Gregory Guina — Tue, 08 Jul 2014 22:28:22 -0400

I was actually thinking about this the other day. Whether it be two dudes or two gals how it will all work out. They do allow paternity leave for couples that adopt in order to bond with the child so I would have to say that it would fall somewhere in that section.

Response by Capt Private RallyPoint Member made Apr 8 at 2015 1:40 PM

Capt Private RallyPoint Member — Wed, 08 Apr 2015 13:40:49 -0400

They should be. Families need that time to settle into their new routines and bond. They also need assistance getting used to the new family dynamic. Yes, I think it would be discrimination. Even a heterosexual couple having a child through a surrogate should be afforded this right.