Reproductive Loss and the Law: The Nascent Evolution of Bereavement Remedies

On October 10, 2023, California Governor Gavin C. Newsom signed into law the Employment: Leave for Reproductive Loss (Senate Bill No. 848), which requires covered employers to afford up to 5 days of leave to employees who suffered a “reproductive loss event.” ¹ As written, the new law is to be applied in the wake of “failed adoption, failed surrogacy, miscarriage, or an unsuccessful assisted reproduction.” ¹ Having gone into effect on January 1, 2024, the California bereavement leave statute follows comparable legislation previously enacted by the states of Utah and Illinois. ^2,3 Commensurate ordinances were also enacted by the municipalities of Pittsburgh, Portland, Boston, and Waterloo. ^4,5 No comparable federal law exists at this time. It is the objective of this commentary to review the nascent U.S. evolution of bereavement remedies in the wake of a reproductive loss and the likely trajectory thereof.

On September 14, 2021, the Pittsburgh City Council enacted the first U.S. bereavement ordinance intent on addressing reproductive loss. ⁴ Under the ordinance, the city provides a maximum of 3 days of paid bereavement leave to all nonunion city employees, and to all union city employees as subject to collective bargaining requirements if either the employee or the employee’s partner experiences a loss of pregnancy, regardless of gender or being a same-sex couple. ⁴ It applies to “miscarriage, stillbirth, or termination” as well as to failed In Vitro Fertilization procedures and to surrogacy loss. ⁴ Shortly thereafter, on September 29, 2021, the Council of the City of Portland provided benefits to many city employees that expand those provided in the Oregon Family Leave Act to include pregnancy loss. ⁵ It provides 3 days of leave with pay in the case of miscarriage, stillbirth, termination, and “loss incurred during fertility treatment.” ⁵ Comparable ordinances were also enacted in 2021 by the Cities of Boston (MA) and Waterloo (IA).

Statewide efforts to modify extant bereavement policies in the wake of adverse pregnancy outcomes have been slower to materialize but we are beginning to see them enacted. On March 22, 2022, Utah Governor Spencer J. Cox signed into law the Bereavement Leave Act (BLA; S.B. 63) according to which the Utah Board of Higher Education and the human resources bodies of state, county, and municipal governments were to “implement rules that will provide bereavement leave for [their] employees who suffer the loss of a child as a result of a miscarriage or stillbirth.” ² As written, the BLA provides for “at least three workdays of paid bereavement leave for an employee” as well as to current and former spouses or partners of said employee if the person would have been a “biological parent” of the child. ²

Not long thereafter, on June 9, 2022, Illinois Governor Jay R. Pritzker signed into law the Family Bereavement Leave Act (SB3120). ³ The statute goes further than the ones already discussed, which provide benefits only to state or local government employees. The Illinois act instead applies to all employees deemed eligible under the federal Family and Medical Leave Act of 1993 (a much broader category) and entitles them to up to 2 weeks (10 workdays) of unpaid leave time following: the death of a covered family member, stillbirth, miscarriage, unsuccessful assisted reproductive procedure, failed adoption match or unfinalized adoption agreement, failed surrogacy agreement, or diagnosis that negatively impacts pregnancy or fertility. ³ Comparable efforts to enact a bereavement statute by the states of Kentucky, New Jersey, Oregon, and New York have yet to be realized.

At the federal level, Congressional attempts at establishing bereavement leave policies in the wake of reproductive loss remain limited to the joint recent efforts of Representative Ayanna S. Pressley [D-MA-07] and Senator L. Tammy Duckworth [D-IL]. ⁶ The sponsored bill in question, Support Through Loss Act [H.R.6103/S.3137], seeks to assure to covered employees at least 3 days of paid leave time following a “pregnancy loss, an unsuccessful round of intrauterine insemination or of an assisted reproductive technology procedure, a failed adoption arrangement, a failed surrogacy arrangement, or a diagnosis or event that impacts pregnancy or fertility.” ⁶ Introduced on October 26, 2023, the Support Through Loss Act was referred to several House Committees as well as to the Senate Committee on Health, Education, Labor, and Pensions. ⁶ As written, the bill provides covered employees with paid leave time for an absence related to “their own health needs and the health needs of their partners during the period following a pregnancy loss, an unsuccessful round of intrauterine insemination or of an assisted reproductive technology procedure, a failed adoption arrangement, a failed surrogacy arrangement, or a diagnosis or event that impacts pregnancy or fertility.” ⁶ In addition, the bill tasks the Secretary of the Department of Health and Human Services with the responsibility of establishing a “Pregnancy Loss Public Education Program” as well as “Research with Respect to Pregnancy Loss.” ⁶ Further objectives of the bill include the education of “Perinatal Health Care Workers with respect to Pregnancy Loss” and “Data Collection Regarding Pregnancy Loss.” ⁶

The recent municipal, state, and federal efforts to establish bereavement remedies to reproductive loss, give rise to the hope that this long-neglected area will finally be receiving the attention it deserves. These BLAs are being extended beyond the tragic loss of family members to the all-important hope for successful reproduction. The import of municipal and state efforts notwithstanding, further progress in the establishment of bereavement remedies to reproductive loss will doubtlessly require the force of federal law. It is in this nascent arena of lawmaking that Congress is uniquely positioned to make a real difference.