Maternity and paternity rights after surrogacy

For many years, those who had a child through surrogacy were not afforded the same entitlement to paid time off work as those who had children more traditionally.

This is because maternity leave was officially triggered only by the production of a medical certificate given to woman during pregnancy or a matching certificate given when adults and children are placed together for adoption (neither of which is appropriate for intended parents).

Some employers exercised discretion and offered staff expecting babies with the help of surrogates paid leave following the birth. Others were not so flexible, meaning that hundreds of new parents were denied the time off work they desperately wanted as they simply could not afford to sacrifice their earnings.

Following years of inequality and much campaigning, The Children and Families Act of 2014 was drafted to explicitly include maternity and paternity rights for parents through surrogacy. It is now nearly a year since these provisions came into effect; meaning parents with surrogate children born on or after 5 April 2015 are entitled to full paid leave, akin to other parents.

In order to qualify for ‘surrogacy leave’, parents must intend to apply for a parental order (the post-birth court order necessary to acquire parental status). These rights operate irrespective of whether the parents are in a heterosexual or same-sex relationship and can be shared amongst them, in line with the more general provisions brought about by this Act.

This was a welcome move in making surrogacy a more achievable family-building option for prospective parents, though there is still a long way to go to streamline the process.

We believe in taking the unnecessary strain and worry out of alternative family planning by providing clear and pragmatic advice on the surrounding legal issues. For further information please contact our fertility and parenting solicitor, Nicola Scott.

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