Failed adoption leave · California
Leave after a failed adoption or surrogacyTime to grieve, protected by law
When an adoption or a surrogacy falls through, the loss is real. California law recognizes that, and it gives you time off to grieve.
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The short answer
Failed adoption leave in California is part of reproductive loss leave. If an adoption or surrogacy falls through and you would have been the child’s parent, you can take up to 5 days off for each loss, generally used within 3 months. With several losses, the cap is 20 days in 12 months. You need an employer with 5 or more employees, or a public employer, and 30 days on the job.
From the California labor lawyers at Employees First Labor Law, led by Jonathan P. LaCour, CEO · Senior Trial Counsel. Meet our team. Updated November 2026
On this page
- What counts as a failed adoption or a failed surrogacy
- Who qualifies for failed adoption leave and failed surrogacy leave
- Do you qualify? A quick check
- How many days: 5 for each loss, up to 20 a year
- Failed adoption and failed surrogacy leave: common situations
- Pay, paperwork, privacy and your protections
- How to ask for failed adoption or surrogacy leave
- Questions about failed adoption and failed surrogacy leave
- Keep reading
What counts as a failed adoption or a failed surrogacy
California’s reproductive loss leave law, Government Code §12945.6, defines both events. Here is what each definition covers, in plain words.
Failed adoption
- An adoption agreement with the birth mother or legal guardian is ended (dissolved)
- An adoption agreement with the birth mother or legal guardian is broken (breached)
- An adoption is not finalized because another party contested it
- Covers the person who would have been the child’s parent if the adoption had been completed
Failed surrogacy
- A surrogacy agreement is ended (dissolved)
- A surrogacy agreement is broken (breached)
- An embryo transfer to the surrogate fails
- Covers the person who would have been a parent of a child born through the surrogacy
Who qualifies for failed adoption leave and failed surrogacy leave
You qualify when three things are true:
- Your employer is covered. It has 5 or more employees, or it is a public employer such as the state, a city or a county.
- You have worked there at least 30 days before the leave begins.
- You would have been a parent. For a failed adoption, that means a parent of the child if the adoption had been completed. For a failed surrogacy, it means a parent of a child born through the surrogacy.
The definitions do not require you to be married. If two people would have been parents, each of you can ask your own employer for your own days, as long as each of you meets the rules above.
The law’s exact words
Failed adoption: “‘Failed adoption’ means the dissolution or breach of an adoption agreement with the birth mother or legal guardian, or an adoption that is not finalized because it is contested by another party. This event applies to a person who would have been a parent of the adoptee if the adoption had been completed.”
Failed surrogacy: “‘Failed surrogacy’ means the dissolution or breach of a surrogacy agreement, or a failed embryo transfer to the surrogate. This event applies to a person who would have been a parent of a child born as a result of the surrogacy.”
These events are part of California’s broader reproductive loss leave, which also covers miscarriage, stillbirth and unsuccessful assisted reproduction.
Do you qualify? A quick check
Answer three yes-or-no questions about your job and your loss.
- You likely qualify for up to 5 days You can take up to 5 days for this loss, and they do not have to be in a row. Use them within 3 months of the event, or within 3 months after another protected leave ends if you are on one.
- This leave may not apply to your job Private employers with fewer than 5 employees do not have to give reproductive loss leave. You may still be able to use paid sick leave for your own health care, or vacation if your employer allows it.
- The 30-day rule may not be met yet The law requires 30 days of employment before the leave begins. Because you have 3 months to use the days, it can help to check whether you will reach 30 days within that window.
- This leave is for the would-be parent The failed adoption and failed surrogacy definitions cover the person who would have been the parent. If you carried a pregnancy as a surrogate, see the situations below, because other rights may apply to you.
How many days: 5 for each loss, up to 20 a year
Each failed adoption or failed surrogacy is its own event, and each one brings up to 5 days off. If you have more than one reproductive loss event within 12 months, your employer does not have to give more than 20 days in total in that 12-month period.
| Losses within 12 months | Days for each loss | Most your employer must give |
|---|---|---|
| 1 | Up to 5 | 5 days |
| 2 | Up to 5 | 10 days |
| 4 | Up to 5 | 20 days |
| 5 or more | Up to 5 | 20 days (the cap) |
The cap counts every kind of reproductive loss together. For example, two failed embryo transfers to a surrogate and one failed adoption in the same 12 months add up to 15 days.
When to use the days
The days do not have to be taken in a row. You generally use them within 3 months of the event. If the event lasted several days, the clock starts on the final day.
If you are on another protected leave right before or right after the loss, or choose to start one, you have until 3 months after that other leave ends.
Failed adoption and failed surrogacy leave: common situations
Choose the one closest to what happened.
If the adoption agreement ended
When an adoption agreement with the birth mother or legal guardian is dissolved or breached, that is a failed adoption. You can take up to 5 days if you would have been the child’s parent.
If someone contested the adoption
An adoption that is not finalized because another party contested it also counts as a failed adoption. If the dispute played out over several days, the 3-month window starts on the final day.
If the surrogacy agreement fell apart
The dissolution or breach of a surrogacy agreement is a failed surrogacy. Each would-be parent who meets the job rules can take up to 5 days.
If a transfer to your surrogate did not succeed
A failed embryo transfer to the surrogate counts as a failed surrogacy. Each failed transfer is its own event, so each can bring up to 5 days, within the 20-day cap.
If you carried the pregnancy
The failed surrogacy definition is written for the person who would have been a parent, so whether a surrogate also gets these 5 days is not clearly answered by the statute.
What is clear: if a provider says the pregnancy or its end leaves you unable to do one or more essential parts of your job, you can take pregnancy disability leave for up to 4 months.
If your own fertility treatment was unsuccessful
An unsuccessful round of IUI or of an assisted reproductive technology procedure, such as IVF, is a separate qualifying event.
Leave after IVF or IUIPay, paperwork, privacy and your protections
Is the leave paid?
The days follow your employer’s existing leave policy. If no policy covers them, they can be unpaid, but you may choose to use vacation, personal leave, accrued sick leave or comp time.
Do you need to prove anything?
The statute does not list any paperwork you must provide. Legal Aid at Work’s guidance says your employer cannot require a medical note for reproductive loss leave.
Who will know?
Your employer must keep your request in confidence. It may share it only with people inside the company or its lawyers who need to know, or as the law requires.
What about bonding leave?
California’s family leave law (CFRA) and Paid Family Leave tie bonding time to a child’s birth, adoption or foster placement. If no child was placed with you, bonding leave would generally not apply. If a child had already been placed before the adoption ended, the rules can overlap, and our adoption and foster leave guide can help.
If your employer refuses or holds it against you
It is unlawful for your employer to refuse the leave, interfere with it, or retaliate against you for taking it. That includes firing, demoting or disciplining you. You generally have 3 years to file a complaint with the Civil Rights Department, and our page on being fired after a pregnancy loss explains your options.
How to ask for failed adoption or surrogacy leave
You can keep this short. You do not have to explain the details.
Pick your days
Decide which days you want. They can be spread out, for example a few days now and the rest for a memorial or a hard date later on.
Send a short written request
Email gives you a record. This note shares nothing beyond what the law needs.
Copy this leave requestHi [manager or HR name], I had a reproductive loss event on [date], and I am requesting reproductive loss leave under California Government Code section 12945.6. I plan to be out on [dates]. I may take the remaining days later, within the time the law allows. Could you tell me whether these days are paid under company policy, or whether I may use my [sick leave / vacation / PTO]? Thank you, [Your name]
Keep copies
Save your request and your employer’s reply. If anything goes wrong later, these records matter.
Reach out if you meet resistance
If your request is refused, or you are treated differently afterward, see retaliation claims or talk with us.
Questions about failed adoption and failed surrogacy leave
Is there leave for a failed adoption in California?
Yes. Since January 1, 2024, California’s reproductive loss leave law has covered a failed adoption. If you would have been the child’s parent, your employer has 5 or more employees or is a public employer, and you have worked there 30 days, you can take up to 5 days. You generally use them within 3 months of the event.
Is there failed surrogacy leave in California?
Yes. A failed surrogacy is also a reproductive loss event. It covers the dissolution or breach of a surrogacy agreement and a failed embryo transfer to the surrogate. The leave is for the person who would have been a parent of a child born through the surrogacy, with the same 5 days per event and the same job rules.
Do both intended parents get leave?
Each person who would have been a parent can ask their own employer for up to 5 days, as long as each one meets the rules: an employer with 5 or more employees or a public employer, and 30 days on the job. The definitions do not require the parents to be married.
What if we have more than one failed embryo transfer?
Each failed transfer to the surrogate is its own event and can bring up to 5 days. If you have more than one reproductive loss event within 12 months, your employer does not have to give more than 20 days in total in that period. The cap counts all kinds of reproductive loss together.
Is failed adoption leave paid?
It depends on your employer’s policy. If no policy covers it, the leave can be unpaid, but you may choose to use vacation, personal leave, accrued sick leave or comp time. California’s Paid Family Leave program pays for bonding with a child who is placed with you, so it would generally not apply if no child was placed.
Does my employer need proof of the failed adoption?
The statute does not list any paperwork you must provide, and Legal Aid at Work’s guidance says your employer cannot require a medical note. Your employer must keep your request in confidence and share it only with people who need to know, or as the law requires. A short written request is usually enough.
Keep reading
Sources
- Gov. Code §12945.6 (reproductive loss leave)
- Gov. Code §12945.6 (alternate text)
- Gov. Code §12945.2 (CFRA)
- CRD: Pregnancy disability leave and bonding guide
- EDD: Paid Family Leave
- CRD: Pregnancy Disability Leave fact sheet
- Gov. Code §12960 (CRD filing deadline)
- Labor Commissioner: Paid sick leave
- Legal Aid at Work: End of pregnancy and reproductive loss
- Hunton: California mandates new leave for reproductive loss
This page gives general information about California law as of November 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Every situation is different; talk with a lawyer about yours.
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