Parents using surrogates to help them have children have cause for celebration, as the law in relation to adoption leave and pay is updated to include some intended parents of surrogate children.  The changes, which came into force on 5 April 2015, apply to children due on or after that date.

Previously, an intended mother who had entered into a surrogacy arrangement was not entitled to take either maternity or adoption leave following the birth of her child, even if the baby was biologically hers and/or her partner’s.

Although the intended mother will still not have the right to maternity leave and pay, the rights of intended parents became dramatically improved from 5 April 2015. They are now entitled to adoption leave and pay for babies due on or after 5 April 2015.  As long the child is born on or after 5 April 2015, adoption leave will become a right that applies from day one of employment, just like statutory maternity leave, and statutory adoption pay will be increased to the same rate as statutory maternity pay. This means that intended parents will be able to take 52 weeks’ adoption leave and receive 39 weeks’ statutory pay. If the baby was due on or after 5 April but was born earlier than that, the intended parent will not qualify for the adoption leave and pay automatically and will instead need 26 weeks service with their employer.

Requirements for intended parents

Not all intended parents will qualify for adoption leave and pay and parents should take advice about their particular circumstances if they are unsure.  According to official government guidance, the new employment rights only relate to surrogacy arrangements in respect of which parents will be eligible to apply for a Parental Order.  The following criteria have to apply:

  • The baby’s expected week of birth must be on or after 5 April 2015 (if the due date is on or after 5 April but the baby arrives early, qualification for adoption leave will depend on length of service);
  • The intended parent is an employee;
  • The intended parent has obtained a Parental Order for the child or has, on the day of the child’s birth, applied for or intends to apply for, a Parental Order;
  • The intended parents must expect the Parental Order to be made;
  • They must have given their employer the correct notice (notice of entitlement to adoption leave must be given by the 15th week before the expected week of birth and must be in writing if the employer asks for this); and
  • If requested by the employer, the parent must provide a statutory declaration that they have obtained or have applied for/intend to apply for a Parental Order

The making of Parental Orders is governed by the Human Fertilisation and Embryology Act 2008 (HFEA 2008). Under that Act, in order to obtain a Parental Order:

  • The intended parents must be husband and wife, civil partners or a couple living in an enduring family relationship;
  • The intended parents must apply for the Parental Order within six months after the date of the child's birth;
  • At the time of the application, the child's home must be with the intended parents and either or both of them must be domiciled in the United Kingdom or in the Channel Islands or in the Isle of Man;
  • When considering the Parental Order application, the Court must be satisfied that no money or other benefit has been given or received by either of the intended parents (other than for expenses reasonably incurred) unless those payments are authorised by the Court;
  • The child must be carried by a surrogate mother who has been artificially inseminated (not conceived through sexual intercourse) or had the embryo or gametes placed into her either in the UK or elsewhere;
  • At least one of the intended parents must be genetically linked to the child; and
  • The couple must be able to satisfy the Court that the surrogate mother who carried the child (and any other person who is a parent of the child), has freely and with a full understanding of what is involved, agreed unconditionally to the making of the parental order.

If the intended parents meet the HFEA 2008 conditions set out above but don’t intend to apply for a Parental Order, they will not be eligible for adoption leave and pay.

Where the intended parents’ application for a Parental Order is refused by the court, the employee’s entitlement to adoption leave will end 8 weeks later or at the end of the adoption leave, whichever is earlier.

Employers – mind the traps

Employers who enhance statutory maternity pay should consider enhancing statutory adoption pay in all cases, including the cases of adoption leave in relation to a surrogacy arrangement. If they fail to do so, it could give rise to potential disability discrimination issues if the woman needs to use a surrogate due to medical issues. It could also give rise to sexual orientation discrimination issues, particularly if surrogacy arrangements are used by a higher number of homosexual than heterosexual couples.

Eligible employees who meet certain length of service and minimum earnings criteria will also be entitled to take shared parental leave, which means that the intended mother and intended father will be able to chop and change between who takes leave and when during the child’s first year.

Intended parents will also have the right to unpaid time off to attend two ante natal appointments with the surrogate mother. However, in practice this will be difficult where the surrogate mother is based abroad, as is still common in many surrogacy arrangements.

Benefits for parents

The ability of intended parents to take leave and receive pay during this period might encourage more people to consider surrogacy.  Almost all new parents take time to adjust to having to look after a new baby and the availability of paid leave and other employment rights will mean that parents of children born by surrogacy can now benefit from this time also.

Many of the parents we advise have entered into surrogacy arrangements abroad and, due to a number of factors (such as the country in which the surrogate lives, the nationality of the intended parents and the surrogate’s husband if she has one), it can take many months to deal with the immigration processes and bring the child back to this country.  Again, the benefit of paid leave for intended parents means that there is less of a pressure in situations where they have to spend so much time abroad waiting for their child’s passport.