The U.S. Needs a Paid Family Leave Policy That Covers Miscarriage

New Zealand has broken new ground in pro-family policy by requiring three days of paid bereavement leave for parents who lose a child through miscarriage. The bill passed unanimously and became law in March 2021. As the mom of seven children, six lost through miscarriage, and one who is a 15-months-old toddler, I welcomed this news.

Parents who lose a child through miscarriage can have their grief dismissed. When my husband and I lost children in the first trimester, our doctors were brusque with us, telling us to move on and work on getting pregnant again. In contrast, the New Zealand law treats a miscarried child with dignity.

Offering bereavement leave communicates something different than offering sick days. Some miscarriages involve medical complexities that make women eligible for sick leave, but when a child dies, the parents shouldn’t need to use up sick leave to grieve. A mother shouldn’t need to question whether her bodily suffering is enough to interfere with her work and qualify for medical leave. Bereavement leave is more unconditional. Bereavement leave also makes it clear that fathers also deserve time off after a death.

Unfortunately, the policy is hard to adapt to the United States. In New Zealand, miscarriage leave was an expansion of their existing bereavement leave mandate. The law didn’t create a new program—it added one more category to a law that already required paid bereavement leave after the loss of a parent, a spouse, a sibling, a child, a grandparent, etc. The law was admirably expansive, even allowing the deaths of friends and other non-relatives to merit bereavement leave, asking employers to consider if an employee has responsibilities to care for their friend in death.

But in the United States, no relationship qualifies for mandatory paid bereavement leave, of any duration. Parents who lose a child can use FMLA leave for unpaid time off, but the leave is intended to allow them to deal with the medical difficulties of the loss, not bereavement. Parents are left potentially unsupported at the beginning of the children’s lives, too, with no requirement for paid leave after a baby is born or adopted. For parents who qualify for FMLA leave, which allows parents to take up to 12 weeks of unpaid leave after birth, the program is still restrictive. Parents need to have been with their employer for a year prior to the leave, small employers (with fewer than 50 employees) are exempted, and, of course, parents need to be wealthy enough to afford giving up their salary for 12 weeks.

Leave after birth isn’t really analogous to sick leave, even though it can take time to recover from the physical work of labor. During sick leave, a person hopes to return to health—but there’s nothing necessarily wrong with a newborn or a post-partum mother. There’s nothing to get over or to treat. Babies and parents just need time. “Baby-bonding leave” is a better name for this kind of leave. It makes space for a positive good, rather than waiting out a debility.

But with employment law offering such stingy treatment for parents of living children, I worry that it is hard for parents to imagine asking for bereavement leave for the children they lose. Telling your boss that you experienced a loss is admitting that you wanted a child—information that women in particular fear revealing. Pregnancy may be a protected category on paper, but many employers are hostile in practice.

I recently surveyed the members of my Other Feminisms community to ask how comfortable the women would be approaching an employer about leave after a miscarriage, and what factors they would weigh in their decision. The survey wasn’t random, so I can’t extrapolate the results to the nation, but I appreciated the 95 respondents who shared their stories. 

A mother shouldn’t need to question whether her bodily suffering is enough to interfere with her work and qualify for medical leave. 

Approximately two-thirds said they’d feel comfortable telling their current supervisor that they’d experienced a miscarriage. They felt reassured by experiences like hearing a boss talk about her own loss, seeing how their supervisor had treated other pregnant employees, and having accommodations made for other parts of their lives (the loss of a grandparent, a child’s surgery) that didn’t fit into the employee handbook. Several mentioned feeling more comfortable talking to a boss who was a woman, or a supervisor of any gender who had young children.

For those respondents who weren’t comfortable with the idea, several said they feared retaliation at work for becoming pregnant at all. Some felt that they’d seen parents of living children treated dismissively at their workplace. Others simply felt the topic was too personal to broach in a professional setting.

When women stayed at work through miscarriage, some had to look for empty offices to cry in, since they worked in an open-plan workspace. Miscarriage is an unpredictable physical process: when I lost my second child, we learned in the doctor’s office that our baby’s heart wasn’t beating, but we didn’t know when I would physically lose the child. Wherever I went, I had to have a plan for what I would do if I started physically miscarrying, in part, because we hoped to recover our baby’s body for burial.

A few women who miscarried felt it was too hard to disclose a loss, because, in the midst of the shock of grief, they didn’t feel ready to talk about it. One woman said she didn’t want “to have a social or performative aspect to my grief.” Another woman said she feared her boss or coworkers would be flippant about her loss. One hadn’t asked for bereavement leave after losing a grandparent because of her reluctance to talk about her grief at work.

To care for parents, we need a culture shift as well as kinder laws. Hostile or impersonal offices make employees feel uncomfortable asking for the leave that they are already entitled to receive. I would love to see the United States follow New Zealand’s bereavement leave example, but as long as our workplaces don’t take caring responsibilities seriously, many parents will struggle to find space to grieve the unborn children they’ve lost.

Leah Libresco Sargeant is the author of Building the Benedict Option and Arriving at Amen.