Your legal rights to parental leave as a surrogate parent
Considering surrogacy but wonder what happens about work after your baby is born? Find out your legal rights to parental leave as a surrogate parent.
The surrogate definition is an arrangement, often reinforced by a legal agreement, where a woman agrees to carry a child for another person or people, who will become the child’s parent(s) after birth.
Surrogacy is becoming an increasingly popular choice for modern families. Those thinking of embarking on surrogacy may wonder about their rights to take time off following the birth of their child. Do they get the same rights and paid leave as those seeking maternity leave?
A City Law Firm’s Family team walk through the different parental leave options and the benefits available for intended parents (IP’s).
What if there is no surrogacy policy?
If your company does not have a specific surrogacy policy, statutory adoption leave and or pay will automatically apply. To be eligible for this you must be an employee (continuously employed by your employer for 26 weeks and earning on average at least £120 per week before tax), have given the correct notice, and provide proof of the surrogacy. Notice must be provided 15 weeks before the expected week of the birth.
This may be requested in writing and your employer may ask for a statutory declaration that you will be applying for a parental order (to become the child’s legal parents) following the birth of your baby and that you expect the order to be granted because you fit the criteria.
If you qualify for adoption leave, you can take up to 26 weeks’ ordinary adoption leave, followed immediately by up to 26 weeks’ additional adoption leave. You may also be entitled to up to 39 weeks Statutory Adoption Pay (SAP) if you meet the qualifying conditions.
Paternity and Maternity leave
In the UK it is only the surrogate mother that is entitled to maternity, not the IPs. However, if you are genetically linked to the child (which one of the parents must be) then you can choose to get paternity leave and pay instead. You will not be able to claim this in conjunction with another leave option ie adoption leave. It must be one or the other.
If you are not eligible then you employer must give you an SAP1 Form explaining why you cannot claim this.
Parental Leave
If you have applied for a parental order as an IP, you have the same rights and responsibilities and as such you are entitled to parental leave from your employer. Here you need to give 21 days’ notice. This is usually unpaid but do check your staff handbook and contract.
It is also important to note whilst you are on leave, your employment rights are still protected in relation to pay rises, accrued holiday, and your return to work. By raising any questions with your human resources department, applying for leave or parental rights or later perhaps making an application for flexible working you cannot be treated less favourably or discriminated against for making these requests.
In the UK, surrogacy laws are complicated which can make it over-whelming for IP’s. A specialist solicitor is recommended throughout the entire process to help make the journey as smooth as possible. It means you are supported and can ask any questions you have along the way ie confirming what employment rights you have etc.
Photo by Kelly Sikkema
