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Rights to maternity leave granted to parents through surrogacy

26 November 2012
Appeared in BioNews 683

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.

From 2015, when the changes are expected to come into force, surrogate parents will be eligible for statutory adoption pay and leave – and the new 'flexible' parental leave – so long as they meet the qualifying conditions, said the Government.

In its response to a consultation on modern workplaces, run by the Department for Business, Innovation and Skills last year, the Government outlined its commitment to introducing flexible parental leave. Speaking on the matter, Deputy Prime Minister Nick Clegg said 'the problem comes down to a whole range of clapped-out rules and arrangements'.

A statement from Natalie Gamble Associates, a law firm specialising in fertility law, explained that at present parents whose biological child is carried by another woman have no rights to time off work when their baby arrives. These parents may have no option but to quit their jobs or go immediately back to work after the birth if their employer does not – or cannot – grant leave on a discretionary basis, said the law firm.

The Government said it will introduce legislation to Parliament as soon as possible to enact the changes in time for a 2015 enforcement date. 'We propose that intended parents in surrogacy cases who satisfy the criteria for a Parental Order...will be entitled to leave and pay on the same basis as adopters who are eligible for statutory adoption leave and pay', the Government response stated. This would, however, be subject to certain qualifying conditions, details of which are yet to be determined.

Under the proposals, both intended parents would also be entitled to unpaid leave to attend up to two antenatal appointments with the surrogate.

The Government intends to enable all parents to split parental leave between them for the whole one year period after the baby is born, not including the initial two week period of compulsory maternity leave taken by the mother. This would also include the option to split the 37 weeks of pay currently available to mothers.

'Under the new rules, a mother will be able to trigger flexible leave at any point – if and when she feels ready. That means that whatever time is left to run on her original year can be taken by her partner instead. Or they can chop up the remaining time between them – taking it in turns', said Mr Clegg in his speech announcing the plans. Surrogate parents will be able to apply for the new 'flexible' parental leave once their child has been born.

Opposition to the announcement has come from small business representatives who believe the changes could cause friction between staff and employers, highlighting that demands for flexible working can be refused providing there is a 'business' reason. Liesl Smith of the Federation of Small Business said that smaller firms are already 'doing as much as they can', but that there is a danger business owners will be put off employing men and women who want to have a family.

However, Natalie Gamble Associates said in its statement: 'What is so exciting about the change, as well as the practical legal rights it will introduce for new parents, is that this is the very first time in UK legal history that parents through surrogacy have been recognised as having any rights in advance of the birth of their chid'.

'This is a very significant recognition that surrogacy is real and here to stay, and hopefully a first step towards a wider reform of our surrogacy laws'.

The Government said it will launch a consultation early next year to consider how the new system will work.

Maternity leave rights to be introduced for parents through surrogacy
Natalie Gamble Associates |  15 November 2012
Parental leave to become flexible under plans set out by Nick Clegg
Guardian |  13 November 2012
26 January 2015 - by Merry Varney 
The UK Government has finally changed the law to allow parents of children born through surrogacy the same rights to leave and pay as other parents. However, rather than bring the new law into effect immediately, the Government has only applied it to babies 'whose expected week of birth begins on or after 5th April 2015'. This presents some problems...
24 March 2014 - by Chee Hoe Low 
Women using surrogacy to become mothers are not entitled to maternity or adoption leave under European Union law, the European Court of Justice has ruled....
9 December 2013 - by Antony Starza-Allen 
A woman in Ireland whose child was born through surrogacy is challenging the Government's refusal to pay her maternity leave, alleging that it amounts to unlawful discrimination, reports the Irish Times...
10 December 2012 - by Sabreena Mahroof 
'…and naturally you realise you will not be entitled to Maternity leave….'...
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...
29 October 2009 - by Nishat Hyder 
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....
27 October 2009 - by Natalie Gamble and Louisa Ghevaert 
Of all the prospective parents conceiving through assisted reproduction, those in surrogacy arrangements often face the most difficult legal issues. The surrogate and usually also her husband will be treated as the child's legal parents at birth, leaving the commissioning parents with no legal connection with their child whatsoever, even where both are the biological parents....
28 April 2008 - by Natalie Gamble 
The Human Fertilisation and Embryology (HFE) Bill is currently wending its way through Parliament amidst a storm of controversy and debate. An issue which has provoked very little attention is surrogacy, and yet this is where the law most desperately needs reforming. Surrogacy arrangements currently get the raw end of...
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