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 she was having her own child, meaning a surrogate can take her full allowance of maternity leave.

A surrogate’s partner is not eligible for paternity or parental leave even if they 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, rely on someone 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). Surrogates do not need to take the full amount of leave if they 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 will receive (at a minimum) 90% of her salary for the first 6 weeks and the statutory rate after that – although her pay may be enhanced by her employment contract so it is worth checking your company’s policy to find out what you are entitled to.

Parental (adoption) leave for intended parents

In order to be eligible for parental leave, the intended parents must intend to apply for a parental order. This is a post-birth court order which makes them the legal parents of their child and extinguishes the surrogate’s legal responsibility. It is applied for following the birth of their child, and they are entitled to adoption leave from the date of their child’s birth.

For intended parents, parental leave is available through a special form of adoption leave for surrogacy. This gives equivalent rights to maternity leave, with one partner able to claim the main adoption leave and the other able to claim parental leave.

The entitlements under adoption leave are the same so the partner who wishes to claim the main leave is also entitled to up to 52 weeks off work and statutory parental leave pay for the first 6 weeks, and the statutory rate after that. The other partner is entitled to the equivalent of paternity leave, so their parental leave allowance is one or two weeks off work – again, unless their company offers additional time for parental leave for a spouse or partner.

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 declaration that they will apply for a Parental Order, which they could request is witnessed either by an impartial individual or a lawyer.

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?

Unfortunately there aren’t any specific government guidelines relating to maternity leave specifically in surrogacy arrangements for self-employed surrogates or intended parents.

If you are self-employed, you should check what parental leave you would be entitled to if you were carrying your own child and the various considerations around national insurance, how long this has been paid for and if there are any gaps within that period. Guidance of eligibility for maternity leave for the self employed and paternity leave for the self employed is available on the .gov website.

We would also recommend you discuss this with an accountant as they may be able to offer more insight depending on your situation, since your National Insurance payments will play into what you are eligible for.

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 she chooses to take is a surrogate’s discretion, but it would be sensible for her to consider the impact on her and her family if she might struggle financially on statutory maternity pay.

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.