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Intending mothers fight for maternity leave following surrogacy

29 October 2009
Appeared in BioNews 532

Following new UK government guidelines on surrogacy published last month aimed at improving the rights of surrogacy patients, Ministers are now facing a new legal challenge calling for further changes in the law.

Specialist fertility law firm, Gamble and Ghevaert, have written to Ministers demanding that the current rules, which prevent women who use surrogates from receiving maternity benefits, be changed. At present, only women who themselves go through a successful pregnancy are entitled to paid maternity leave and employment protection - even in cases where they are not the genetic parent. Thus, surrogate mothers are entitled to all maternity benefits. However, no such rights are available for parents who use a surrogate or adopt, leading campaigners to describe the current position as discriminatory.

Natalie Gamble, partner at Gamble and Ghevaert, explained the situation thus: 'The lack of right to maternity leave is tied up with the fact the surrogate mother is regarded as the mother…In any other circumstances you would get maternity leave. Women aren't going to need a whole year. What would make sense is a system where you have some sort of sharing arrangement [for maternity leave]'. She continued, 'We also need to take account of our modern human rights and anti-discrimination laws which do not allow unfair treatment of minority groups, however small they are'. At present, approximately 40 babies are born through surrogacy in Britain each year, mainly due to medical reasons which prevent some women from giving birth themselves.

Surrogacy in Britain is laden with problems. Surrogates in Britain may not receive payment for the service they render, apart from expenses. Furthermore, surrogacy agreements are not legally binding, meaning the surrogate mother has the right to keep the baby she gives birth to, even if the child is not genetically related to her, and she has been paid all expenses. These restrictions have led to couples going overseas to carry through a surrogacy arrangement. However this can also present difficulties; the worst case scenario is that a much-wanted baby is recognised in neither Britain, nor the country of it's birth.

Sharmy Beaumont, aged 33, is one of the few UK women who has become a parent with the help of a surrogate. Beaumont was born with a rare condition which meant her womb could not cope with carrying a child. After learning of this in her twenties, Beaumont contacted Surrogacy UK and was put in touch with her surrogate, Liz Stringer. After a successful surrogate pregnancy and the birth of her baby daughter, Isabelle, Beaumont was forced to take unpaid leave in order to care for her.

She says, 'My work have been understanding and have allowed me some leave to look after Isabelle…However, the fact that parents through surrogacy are not entitled to any maternity benefits to spend time with their babies is unfair and the Government has not recognised this'.

'I love being a mum,' Beaumont concludes, 'but the system is unfair'.

Women who use surrogates in fight to claim maternity leave
The Evening Standard |  27 October 2009
30 September 2013 - by Dr Louisa Petchey 
Uncertainty in EU law over the issue of surrogacy and the right to paid maternity leave deepened this week after expert advisors to the Court of Justice of the European Union (CJEU) gave opposing recommendations on separate but similar cases....
10 December 2012 - by Sabreena Mahroof 
'…and naturally you realise you will not be entitled to Maternity leave….'...
26 November 2012 - by Sarah Pritchard 
The right to maternity leave in the UK will be extended to parents of children born through surrogacy, under proposed changes to rules on parental leave recently announced by the Government....
23 April 2012 - by Dr Lux Fatimathas 
Former shadow health secretary Mr John Healey has called for mothers of children conceived using a surrogate to be given equal maternity pay, leave and rights as other mothers. Currently mothers who use surrogates are entitled to 13 weeks unpaid leave, in contrast to mothers who adopt or conceive themselves, who are entitled to 52 weeks leave with 39 weeks maternity pay....
19 September 2011 - by Nishat Hyder 
A US businesswoman is suing her employer after she was allegedly denied maternity leave following the birth of her twins through a surrogate mother...
7 September 2009 - by Ailsa Stevens 
The UK's Department of Health last week launched a consultation on the regulation of ‘Parental Orders', which are used to transfer legal parenthood from the surrogate (and her husband or partner if she has one) to the couple who commissioned the surrogacy arrangement. Prior to the Human Fertilisation and Embryology Act 2008, only married couples were able to apply for a parental order, however, the new rules will extend this right to parents where there is no formal union, including unmarried...
26 May 2009 - by Sandy Starr 
A new UK law firm is the first in the country to specialise exclusively in fertility and parenting law. The firm, Gamble and Ghevaert LLP, has been founded by lawyers Natalie Gamble and Louisa Ghevaert to cater for a diverse range of families including lesbian couples, single...
12 January 2009 - by Louisa Ghevaert 
Pressure for a review of surrogacy law is mounting in legal, media and political quarters following the case of Re X & Y (Foreign Surrogacy) 2008 (reported in Bionews on 14 December 2008). The case - the first to test the law for British couples going abroad for surrogacy - has highlighted the...
14 December 2008 - by Ben Jones 
A British couple this week won custody over a pair of twins born to a surrogate mother in the Ukraine. The twin babies were caught in a legal loophole whereby the expectant British couple were unable to bring the twins into the UK, as they were not...
26 August 2008 - by Antony Starza-Allen 
A baby born to an Indian surrogate mother for a Japanese couple has found herself in the middle of a legal battle over her nationality, the legal status of her parents and immigration rights. Moving towards a closure of the saga, the Indian Supreme Court last week...
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