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Intended parents using surrogacy granted rights to leave and pay

31 March 2014
Appeared in BioNews 748

Parents of children born through surrogacy arrangements will be entitled to paid leave, after new legislation is passed by the UK's Parliament.

The Children and Families Act, which makes a number of changes in child welfare and family justice, will allow intended parents to apply for adoption leave and pay. The law gained royal assent in the same week that the European Court ruled that two women with children born through surrogacy were not entitled under European Law to paid maternity leave (reported in BioNews 747).

Mothers and adoptive parents in the UK are entitled to up to 52 weeks statutory leave and up to 39 weeks statutory pay. Paternity leave and pay of up to two weeks is also available to the father or other partner in adoption, which can be extended up to 26 weeks if the mother or co-adopter returns to work.

However, before the change in law parents of children born through surrogacy arrangements were only entitled to unpaid parental leave of up to four weeks and could not seek maternity, paternity or adoption leave or pay. Paid leave was left at an employer's discretion, while a surrogate, as a pregnant employee, would be entitled to up to 52 weeks maternity leave

The changes grant parents using surrogacy the same rights as those adopting children, which are broadly equivalent to current maternity and paternity leave. The new Act also entitles all parents, including those using surrogacy, to share parental leave and introduces changes to adoption pay entitlement, as well as extending the right to flexible working to all employees.

Natalie Gamble of law firm Natalie Gamble Associates and the non-for-profit campaign group, Brilliant Beginnings, explains that the right to adoption leave and pay will apply to both heterosexual and same-sex couples so long as they are intending to apply for a parental order. A parental order is needed for intended parents of children born to surrogacy to acquire legal parenthood and parental responsibility over the child.

'Until now, those conceiving through surrogacy fell into a gap, not eligible for maternity leave because they were not pregnant and not eligible for adoption leave because there was no adoption agency matching', Gamble said.

Jenny Willott MP, Employment Relations Minister, said: 'Current workplace arrangements have not kept up with the times. The Children and Families Act will bring the way new parents balance their working and home lives into the 21st century'.

Regulations needed to determine the detail, including how and when intended parents are required to make applications for adoption leave and pay, are still under consideration and will be published at a later date.

UK law gives maternity leave for surrogacy, while Europe lags behind
Brilliant Beginnings |  30 March 2014
13 July 2015 - by Antony Starza-Allen 
The mother of a child born through surrogacy has lost her challenge against a decision to reject her application for paid maternity leave at the Irish High Court...
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...
6 October 2014 - by Antony Starza-Allen 
The UK's High Court has granted a parental order following surrogacy despite a six month deadline for making them having passed, describing strict enforcement of the deadline as 'almost nonsensical'...
23 June 2014 - by Dr Molly Godfrey 
A woman has been jailed for fraud after cheating couples out of thousands of pounds by pretending to act as a surrogate mother for them...
16 June 2014 - by Natalie Gamble 
Many future parents of children born via surrogacy risk never being able to enjoy the new rights to leave and pay promised in the Children and Families Act...
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....
10 February 2014 - by Fiona Duffy 
Despite the lack of legislation and a regulatory framework in assisted conception, fertility treatment has been widely available in Ireland for many years. But in the absence of legislation, fertility clinics will not provide surrogacy services and many Irish couples requiring the use of a surrogate have, as a result, gone abroad...
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...
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