Maternity and paternity leave for parents through surrogacy

A common question from UK intended parents is what their rights to maternity and paternity leave will be when their child is born through surrogacy. The UK rules are pretty clear and make specific provision for births through surrogacy.

‘Maternity’ and paternity leave for parents through surrogacy

As parents through surrogacy, you are entitled to leave from work and basic minimum pay for a period of time after your child is born. Broadly speaking you get the same rights as other new parents, although the leave is technically a special form of adoption leave created for surrogacy rather than maternity leave. The other partner is entitled to paternity leave in the usual way.

Parents through surrogacy can choose who claims the main (adoption) leave

If you are a couple and are both employed, you can choose which of you claims the main leave from work. The leave is technically a form of adoption leave rather than maternity leave (because it doesn’t include the same stipulations as maternity leave around mandatory leave after giving birth) but it is in broad terms the same, with 26 weeks of Ordinary Leave and an additional 26 weeks of Additional Leave. The minimum pay rates are also the same as maternity pay, currently 90% of salary for the first six weeks and a flat statutory rate thereafter (though do check if your employer enhances this as you may be entitled to more).  See Surrogacy: legal rights of parents and surrogates: Pay and leave – GOV.UK

What does the other partner get?

The other of you can then claim paternity leave, which is usually two weeks at a flat rate of pay, unless enhanced by your employer.

Shared parental leave

You also have the option of sharing the adoption leave to create a more balanced split through the shared parental leave system. The government has set up a website that offers more information on shared parental leave, including for self employed and part-time workers.

Eligibility for adoption leave for surrogacy

Eligibility for adoption leave for surrogacy is based on your intention to apply for a parental order which is likely to be granted. A parental order is the post-birth court order which makes you your child’s legal parents and extinguishes your surrogate’s legal responsibility.

You do not need to have been granted a parental order – or even to have yet applied for one – to be eligible for the leave; eligibility is based on your intention.  This is because you are eligible to take adoption leave from the date of your child’s birth, and you cannot apply for a parental order until after your child is born and the process takes 6-12 months.

You also do not need to have a matching certificate from an adoption agency to qualify for adoption leave for surrogacy. That is because there is no adoption agency involved in surrogacy arrangements. The adoption leave which applies to children born through surrogacy is a special form of adoption leave created just for surrogacy.

It does not matter whether the surrogacy is taking place in the UK or overseas. In either case, your are eligible to take leave from the date of your child’s birth.

FAQs about maternity and paternity leave for surrogacy

When do intended parents through surrogacy need to tell their employers they are expecting a baby?

You should inform your employer of your intention to take adoption leave at least 15 weeks before your baby is due (by week 25 of pregnancy).

You may be asked to provide a statutory declaration that you intend to apply for a Parental Order (which has to be witnessed by a lawyer) or your employer may accept something simpler signed by you confirming your intention or a letter from your solicitor if you have instructed one to apply for a parental order for you.

While you may be asked for a confirmation of pregnancy and your baby’s due date, there are no formal requirements for this since any MatB1 form given to a surrogate in the UK is her personal document and used to claim her own maternity leave, and not yours to provide. In international surrogacy cases, what documents are available to confirm pregnancy may vary.

What time off work can intended parents have to attend ante-natal appointments?

You have a right to paid time off work to attend two antenatal appointments with your surrogate, by law, although do review your company policies as you may be entitled to more.

What if you are self-employed during surrogacy?

Unfortunately there is currently no equivalent financial provision for parents through surrogacy. If you are self-employed, we would recommend you discuss your financial situation with your accountant or financial adviser to help you plan financially for any time you will need off work after your child is born.

What leave do parents through surrogacy normally take?

This is always very personal and you should take whatever leave you feel is right for your new family. It is not unusual for the full allowance to be taken, as anyone would with a new arrival.

What about surrogates? Do they get leave too?

Surrogates are also separately entitled to maternity leave, though many don’t take the full allowance as they need to recover from the birth but are not caring for a newborn. You should discuss your surrogate’s maternity leave in advance of the pregnancy and would normally agree to cover any loss of earnings during this time as part of your surrogate’s expenses. See Maternity leave for surrogates – Brilliant Beginnings