Maternity and paternity leave for intended parents during surrogacy

One of the most common questions that we get from intended parents 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.

Paternity and maternity leave for surrogacy intended parents

Intended parents are entitled to parental leave after a child is born through surrogacy. More specifically, 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

In the UK, statutory maternity leave is set at 52 weeks. This includes the first 26 weeks of Ordinary Maternity Leave and the second 26 weeks of Additional Maternity Leave.

During maternity leave, the person claiming it will receive (at a minimum) 90% of salary for the first six weeks and the statutory rate thereafter – it is worth checking the company policy as this could be enhanced within your employment contract.

Intended parent couples can choose who claims maternity or paternity leave

For intended parents, If you are a couple and are both employed, you can choose which of you claims maternity leave. 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.

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.

Eligibility for adoption leave for surrogacy

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.

FAQs about maternity and paternity leave during surrogacy

What do intended parents have to tell their employers about surrogacy?

Intended parents should inform their employers of their intentions to take parental leave at least 15 weeks before the baby is due.

Surrogates are given a MatB1 form at around 20 – 25 weeks of the pregnancy by her midwife. Some employers will request a copy of this form in order to set the wheels in motion for granting maternity or paternity leave for an intended parent, 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 time off work can intended parents have to attend ante-natal appointments?

Intended parents have a right to attend two antenatal appointments with their surrogates. You should review your employers’ specific policies (if they have them) with regards to time off work to attend fertility appointments, as well as pregnancy and paternity/maternity rights. It is recommended to talk openly with employers about their plans.

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.

Guidance of eligibility for maternity leave for the self employed and paternity leave for the self employed is available on the .gov website.

Parental leave in practice for parents through surrogacy

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.

Surrogates are entitled to maternity leave, though many don’t take the full allowance as it is primarily allocated as time to care for a newborn. 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.