Paternity and maternity leave for surrogacy

One of the most common questions that we get from both intended parents and surrogates is what their rights are when it comes to maternity and paternity leave with a surrogacy arrangement. Although surrogacy might seem complicated on this front, the rules are actually quite clear when it comes to who is allowed what leave.

Who is entitled to parental leave after a child is born through surrogacy?

Both surrogates and intended parents are entitled to parental leave after a child is born through surrogacy.

Maternity leave for surrogates

For surrogates, the entitlement to maternity leave is the same as if you were having your own child, meaning you can take your full allowance of maternity leave and pay if you wish.

A surrogate’s partner is not eligible for paternity or parental leave even if you are married to or in a civil partnership with the surrogate and are a legal parent. This is because paternity and parental leave, unlike maternity leave, relies on you having caring responsibilities for the child.

Statutory maternity leave is 52 weeks, one year. It comprises Ordinary Maternity Leave (first 26 weeks) and Additional Maternity Leave (second 26 weeks). You do not need to take the full amount of leave if you don’t want to but the government is clear that ‘you must take 2 weeks’ leave’ after the baby is born, or 4 weeks if you work in a factory.

For the length of maternity leave, surrogates receive (at a minimum) 90% of salary for the first six weeks and the statutory rate after that – although your pay may be enhanced by your employment contract so it is worth checking your company’s policy to find out what you are entitled to.

Parental (adoption) leave and pay for parents through surrogacy

For intended parents, parental leave is available through a special form of adoption leave created specially for surrogacy in 2015. Adoption leave for surrogacy is equivalent to maternity leave (as explained above).

If you are a couple and are both employed, you can choose which of you claims it – 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).

In order to be eligible for adoption leave for surrogacy, you must intend to apply for a parental order. This is a post-birth court order which makes you the legal parents of your child and extinguishes the surrogate’s legal responsibility. It is applied for after the birth, which is why eligibility is based on your intention, given that you are entitled to start your leave from the date of your child’s birth.

The rates of pay for adoption/paternity leave are the same as for maternity/paternity leave.

Intended parents 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.

Employers: what do you have to tell them?

Surrogates and intended parents should let their employers know of their intentions to take parental leave at least 15 weeks before the baby is due.

A surrogate will be given a MatB1 form at around 20 – 25 weeks of the pregnancy by her midwife. Some employers, for both surrogates and intended parents, will request a copy of this form in order to set the wheels in motion for granting maternity or paternity leave when the time comes.

Intended parents may also be asked by some employers to provide a statutory declaration that they intend to apply for a Parental Order (which has to be witnessed by a lawyer) or may accept something simpler signed by the intended parents, or a letter from their lawyer.

What about time off work for ante-natal appointments in surrogacy?

Employers must give surrogates time off work to attend antenatal appointments, and intended parents also have a right to attend two antenatal appointments with their surrogates. It is helpful for surrogates and intended parents to review their employers’ specific policies (if they have them) with regards to time off work to attend fertility appointments, as well as pregnancy and maternity rights and to talk openly with employers about their plans.

What if I’m self-employed?

Surrogates who are self employed can often claim Maternity Allowance, which is broadly equivalent to maternity pay. However, you should check out the rules carefully. Guidance of eligibility for maternity leave for the self employed and paternity leave for the self employed is available on the .gov website.

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.

Parental leave in practice

Most intended parents take whatever parental leave they feel is right for them (from what they are entitled to) and their new family, and it is not unusual for the full allowance to be taken, as anyone would with a new arrival.

Many surrogates don’t feel the need to take the full allowance, mainly because they will not have a newborn to care for. It is not unusual for surrogates to prefer to take just a few weeks or months to give themselves time to heal physically and emotionally, and to spend valuable time reconnecting with their own families. What you choose is at your discretion, but it would be sensible to consider the impact on your family if statutory maternity pay is less than you would normally earn.

Surrogates and intended parents sometimes discuss the surrogate’s maternity leave in advance of the pregnancy and may agree to cover loss of earnings during this time. This is covered within their expenses, and clearly outlined this in their surrogacy agreement.