If you are having a child through surrogacy, you and your partner may be entitled to adoption leave and pay and paternity leave and pay. A surrogate, as a pregnant employee, has a right to take maternity leave and pay regardless of whether she is genetically related to the child or what parental relationships the child has after s/he is born.
This article outlines the rights that surrogate parents have to time off when having a baby.
Becoming the legal parent
A surrogate is considered a child’s legal mother until and unless that status is altered by an order of the court.
If you use a surrogate, you will need to apply for a parental order (if you or your partner are genetically related to the child), or an adoption order (if neither of you are genetically related to the child).
If you apply for an adoption order, the rules are different (see our article on adoption leave and pay)
Who is the second legal parent?
Who becomes the second legal parent at birth depends on the surrogacy arrangment. The second legal parent may be eligible for paternity leave and Statutory Paternity Pay (SPP).
Where the surrogate is married/in a civil partnership, her partner (unless they did not consent to the surrogacy arrangement) will be treated as the father of the child until and unless a parental order is granted.
If the surrogate is not married/in a civil partnership, the person providing the sperm will automatically be the second legal parent at birth (if he wants to be).
The surrogate may also nominate a second legal parent. To do this, both the intended second parent and the surrogate will need to give their consent before the surrogacy takes place by completing the relevant consent forms. This is a complicated process and you are advised to seek advice from your clinic early on if you wish to do this.
More information can be found via the Human Fertilisation and Embryology Authority.
Transfer of parental responsibility
Where a couple have entered into a surrogacy arrangement, they may apply for a parental order which, if granted, transfers parental responsibility from the surrogate (and partner) to them.
In order for a parental order to be granted, these conditions must be satisfied:
- The surrogate mother cannot be one of the applicants; and
- One of the applicants must have provided genetic material (sperm or egg).
You must apply for a parental order within the first 6 months after childbirth. More information on applying for a parental order in a surrogacy arrangement is available on the government website.
If neither partner has provided genetic material, they may be able to adopt the child instead by applying for an adoption order.
What rights to time off do parents with a parental order have?
If you are an employee and a parent intending to apply for a parental order then you have a right to take (unpaid) time off to accompany the pregnant surrogate mother to two antenatal appointments.
If you are eligible for and want to take adoption leave, you need to tell your employer of your intention by the end of the 15th week before the child is due. You will need to let them know the date the child is due and that you will be applying for a parental order.
You may also be eligible for Statutory Adoption Pay (SAP). Only one parent will be entitled to adoption leave, the other may be eligible for paternity leave.
If you and your partner meet the eligibility criteria, you may be able to share your leave and pay by opting into Shared Parental Leave and Pay.
If you are not eligible for adoption or paternity leave but have worked for your employer for at least one year, and have, or expect to have parental responsibility for a child, you may be able to take (unpaid) parental leave instead.