The changing law on surrogacy

The law is beginning to catch up with different forms of parenting such as surrogacy. In the UK, between 50 and 70 surrogate births take place every year and legal issues around surrogacy are often complex and technical. The main areas currently covered by the law are around surrogate agreements themselves, but recently there has been progress on parental rights for those who use surrogates.

A recent opinion was given to the European Court of Justice by the court’s Advocate on 26th September 2013 stating that both the birth mother and the intended mother, in a surrogacy arrangement, should be entitled to split paid maternity leave entitlement between them. It was argued that each should have a minimum of two weeks’ leave. The opinion came in response to a UK woman who began breastfeeding her child within an hour of its birth in 2011. Since she was not the legal parent her employer gave her some leave, but not full maternity leave. She argued that she should have full rights to maternity leave and took the case to an employment tribunal.

The Court usually follows an Advocate’s decision, although another Advocate ruled in a separate case that a woman could not share leave with her surrogate. Until the Court’s ruling is given and transposed into UK law, those who use surrogates cannot be 100% sure whether they will be entitled to share maternity leave or whether there will be any exceptions to the rules. Andrew Spearman of A City Law Firm LLP, which specialises in this area among others, says: “There is usually also, sadly, some short delay in the judgment passing into effect. There may also be some exceptions made in the Advocate’s advice for whether the birth mother was resident in the UK at that time and so we need to watch for the judgment and note whether there are further distinctions.”

Spearman said: “It is a known gap in current legislation and employment law practice that is currently not being addressed by UK law. If the ruling does transpose directly, then there should be the ability to share any statutory maternity leave with the birth mother and on a pro-rata basis of the entitlement would seem reasonable.”

UK law is generally adapting to surrogacy. At present parents who use surrogates do not qualify for maternity or adoption leave. Karen Holden of A City Law Firm says that intended mothers who are currently having a baby through a surrogate arrangement will not qualify for maternity leave. She says: “You can only benefit from maternity leave when you have a Parental Order, which will only be granted 6-9 months after the birth.”

Karen adds that where the father is the biological parent, in that he donated his sperm, although he may appear on, for example, a US birth certificate, this is insufficient for him to qualify for paternity leave if the surrogate mother is married. “Under UK law she is the biological mother and her husband the legal father in terms of parental rights and thus paternity leave entitlement. Until you have applied for a parental order and acquired legal rights as the child’s parents, you will not benefit from these rights. The aspect of paternity has not yet been addressed. However, if the surrogate is not married the biological father would be treated, under UK law, like any other unmarried father and thus will be entitled to ordinary paternity leave of two weeks,” she says.

LGBT campaign group Stonewall recommends that those using surrogates approach their employer to discuss leave options. It says: ” Some offer flexible leave policies which enable anyone who is considered the primary caregiver for a child the option to take a set amount of leave.”

However, from 2015 under the Children and Families Bill, a person who becomes a parent through a surrogate agreement will be entitled to the same leave and pay as adoptive parents, subject to certain qualifying conditions, and would also be eligible for unpaid leave to attend up to two antenatal appointments with the surrogate.

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