November 8, 2017
25.4.166
Background
The grievor works for Department A and accepted a posting to Country X from 2014 to 2017 (extended to 2018).
While at post, the grievor and the grievor’s same-sex spouse decided to become parents by using a surrogate mother located in City B, Country Y. The employee’s spouse is the biological parent and the decision to make arrangements away from post was based on the fact that adoption is illegal for same-sex spouses in Country X.
Prior to birth, the grievor had requested travel arrangements/accommodations for the birth/adoption of the child under FSD 41 – Health Care Travel and the Acting Head of Mission (A/HOM) had approved these arrangements and an advance of $17,000 on August 17, 2015.
Shortly thereafter (September to November 2015), a Departmental review determined that FSD 41 – Health Care Travel would not be applicable to the grievor’s case as neither the employee or the grievor’s spouse is under accouchement. The case was referred to Working Group B and they agreed that FSD 41 would not apply and recommended that the employee use the provisions of FSD 50 – Vacation Travel Assistance or FSD 56.11 – Post Specific Allowance to cover the expenses of travel for the employee and the grievor’s spouse to City B. The case was further reviewed by Working Group A, who also agreed with the above and added that the normal relocation provisions would apply for the new dependent under FSD 15 - Relocation; specifically, a non-accountable relocation travel allowance (NAA) and a 300kg net shipment. Working Group A also recommended that the Department exercise its managerial discretion under FSD 15.42 – Managerial Discretion by approving travel costs up to the return cost of lowest available airfare between the post and headquarters city (HQ) for a parent given that the child cannot travel alone.
Despite this, the grievor proceeded with the original plans using the $17,000 advance.
The child was born on December 30, 2015 and the grievor and the grievor’s spouse arrived in City B on December 31, 2015. Shortly thereafter, the grievor went on parental leave from January 4 to July 1, 2016. During this time, the grievor travelled and stayed at various places:
December 31, 2015 to February 8, 2016 – City B waiting for child’s passport;
February 9 to April 27, 2016 - Stayed in City C with family;
April 27 to May 14, 2016 - Stayed in City D to finalize arrangements with GAC and Embassy for Country X.
The grievor and family returned to post on May 17, 2016.
It should be noted that reimbursement of the $17,000 advance has been put on hold pending the resolution of this grievance.
Grievance
The grievor is grieving the Employer’s refusal to authorize the allowances specified under FSD 41, specifically:
- Travel expenses for the grievor, to and from City B where accouchement occurred and where the baby received post-natal medical treatments;
- Payment of actual and reasonable living expenses from the time of delivery until such time that the grievor’s child was granted a visa to travel back to post;
- Travel expenses for the grievor’s spouse to and from City B to be present at the accouchement of their child; and
- Living expenses, for up to five days for the grievor’s spouse.
Bargaining Agent Presentation
The Bargaining Agent representative indicated that although surrogacy may not have been considered when FSD 41 was written, it should be applied in a way that reflects the equal status of all families including non-traditional families. As it stands, FSD 41 inadvertently discriminates against certain members and it is the bargaining agent’s and employer’s duty to work collaboratively to remediate this unacceptable situation. The grievor and spouse should be accorded the same benefits that all other Foreign Service Employees would receive to facilitate their presence at the birth, as well as immediate post-birth care and while waiting for the necessary paperwork to return to post. Although the department recognized FSD 15.42 provides the means to resolve the situation, the proposed solution only partially resolved the matter.
Departmental Presentation
It is the Departmental representative’s position that FSD 41 does not reflect nor address the grievor’s situation. Although the necessary medical care and parental nurturing of the newborn child was both the responsibility of the grievor and the grievor’s spouse, the Directive does not recognize situations when two same sex partners are responsible for the birth of a child. The medical travel request was to enable both parents to be present at the birth of their child via surrogacy; however, the circumstances of this request are not within the intent of FSD 41 as it is written today.
The Departmental representative encouraged the Committee to consider whether the intent of FSD 41.3 (Accouchement) is to allow both parents to be present at the birth of their child. While it is recognized that there is an underlying issue that surpasses the mandate of the NJC grievance process, the Departmental representative reminded the Committee to review this grievance with the utmost openness and consideration with regard to the original intent of FSD 41.3 Accouchement.
Executive Committee Decision
The Executive Committee considered and agreed with the report of the Foreign Service Directives Committee which concluded the employee had been treated within the intent of Foreign Service Directive (FSD) 41. The Committee concluded that, as neither the employee nor the spouse at post required medical care, FSD 41 does not apply. The Committee further noted the principle of comparability whereby insofar as is possible and practicable employees serving abroad should be placed in neither a more nor a less favourable situation than they would be in serving in Canada. As such, the Committee agreed that the employee was treated equally to any other employee assigned in Canada or posted abroad who seeks the services of a surrogate. The grievance is therefore denied.