Surrogacy & Employment Rights

Do Intended Parents have the right to receive maternity or paternity leave where a surrogate mother has given birth to a child?

As from 5th April 2015, the Children and Families Act grants applicants for Parental Orders in surrogacy arrangements the ability to choose to take shared Parental Leave within the first year after their child’s birth. This right will also apply to parents of babies due or children pending adoption on or after this date.

The introduction of Shared Parental Leave and pay will provide parents and adopters with more flexibility and choice for how they structure care arrangements during this time. In addition, parents and adopters will be able to take leave at the same time or in alternate blocks of leave if their employers agree. Employees must provide eight weeks’ notice of their intent to take shared parental leave and will be able to make up to three notification requests. However, employers will have the right to determine the final leave pattern the employee takes and will not be bound to discuss the shared leave proposals with the other employer.

In practice this could be quite confusing but in essence it means that the surrogate mother could return to work sooner and ‘hand over’ leave to the father, to then choose to take leave again when the father has used his. Leave is paid at statutory rate for 39 weeks and keeping in touch days will remain.

This altering landscape of parental leave may leave the employer vulnerable to discrimination claims and careful consideration needs to be given when assessing the requests and working arrangements that this legislative change will bring.

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