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Karen Holden from A City Law Firm talks to workingmums.co.uk about a forthcoming conference for surrogate parents and about employment rights for people considering this option.
Karen Holden is the founder of A City Law Firm. She is a key speaker at Growing Families’ Surrogacy & Donor Options Internationally conference on surrogacy and egg/sperm donation which takes place in London on 19th March. She speaks to workingmums.co.uk about employment law relating to surrogacy.
workingmums.co.uk: When did you start advising on surrogacy-related employment rights?
Karen Holden: I have been practising employment law for just under 20 years. However, 17 years ago I became involved in equality work, which led to me getting the Freedom of the City in 2018. This led me to alternative family law such as fertility-related law, co-parenting and surrogacy work and since then we have combined advice on surrogacy, LGBT family law, employment rights, wills and related work, including what happens when things go wrong.
Wms: When you started how much was surrogacy on employers’ agenda?
KH: Surrogacy was relatively unknown as a concept to those not working in or going through the arrangements. Even now you may find employer’s still only have adoption policies or they have merged everything into one fertility or adoption policy, which is fine as they are essentially the same. However, many medium-sized to small business still have nothing at all. That’s not to say they are family/child unfriendly; perhaps they are just unaware or not resourced to consider all the options.
Wms: What kind of employment law issues were people having?
KH: The legal issues they are having and still have include not always getting time off work for attending ultra sounds and the birth, especially if it takes place overseas as they don’t get the same rights as a pregnant couple. If you are not pregnant you will not get parental leave or maternity rights in the same way so often you have to use your annual leave or request unpaid leave. If you are intended parents you don’t always qualify for paternity leave or parental leave and certainly only one of you would by statutory law.
Employers have also, in my experience as an employment lawyer, been known to refuse leave for intended parents to be at the birth of their child and so claims for discrimination have followed. Some have even discriminated against parents when it comes to time off post birth because they are not ‘giving birth’ and some face more subtle discrimination, such as being passed over for promotion or bonus payments. I had a client in 2017 who was refused time off to fly to Canada for his surrogate’s birth and to bring his child home . We issued a grievance and my client went anyway. When he returned homophobic jokes were made and issues about his performance raised. Ultimately he was denied family time and later dismissed.
Wms: Has it improved, given more and more policies relating to parental leave seem to recognise surrogacy now or is that still a small number?
KH: Larger corporations do have to consider adopting more up to date policies, but they are not required to offer more than statutory rights/benefits as long as they do not discriminate. There are many employers that are proactive when it comes to rights around fertility, adoption and surrogacy and we have seen great things coming out of Working Families and Workingmums.co.uk, but many companies are still not aware or perhaps not sufficiently resourced to offer this. It is also about more than just a policy. It is about the policy’s application, benefits and support. Often a policy may be in place but staff are discouraged or nervous about using it or accessing benefits. Sadly , even at some of those employers who do have policies parents can be denied or discouraged from using these benefits. Similarly, those employers without policies can sometimes be very supportive when a request comes through. Public attitudes are shifting and awareness is helping progress employer’s understanding of the options available and thus the needs of their employees.
Wms: Do there need to be more legal changes in your view?
KH: A greater understanding of modern families is required so employers can understand the benefits, requirements and needs of their staff. The hope is that the more employers understand and offer these protections and benefits the more committed, dedicated and loyal their staff will be. Anything can happen during pregnancy, birth and beyond that cannot be planned for or anticipated. Complications arise and an employer’s understanding and support is vital. Likewise , smaller employers may be under resourced and fear losing a team member so if they understand what their employees are going through they will be able to plan better for different circumstances and needs. I think clarity and protection for both the employee and employer will go a long way towards better understanding and support which is mutually beneficial for everyone.
Wms: Do surrogate parents have any statutory rights?
KH: As the intended parent, you can get unpaid time off to attend two antenatal appointments with the person giving birth. If you’re in a couple, only one of you can accompany the person giving birth to antenatal appointments. If you choose to take time off during working hours, you have the right to take up to six and a half hours off work per appointment.
An employee who adopts a child (or has a child through a surrogacy arrangement) and who fulfils certain conditions, including giving the required notice to the employer and having worked continuously with the employer for at least 26 weeks, has the statutory right to take up to a year off work on adoption/surrogacy leave.
Intended parents in a surrogacy arrangement are entitled to take shared parental leave for a year from the birth if both parents qualify and the parent taking adoption leave returns to work early or curtails (reduces) their adoption leave.
They are also eligible for special parental leave if they are seeking to obtain a parental order if they had the child through surrogacy.
They can be afforded up to 50 weeks of Shared Parental Leave [SPL] and up to 37 weeks of Shared Parental Pay (ShPP). Holiday entitlement builds up as normal during SPL.
If the baby is born more than eight weeks’ early, the parent does not need to give the usual eight weeks’ notice to book or change leave dates.
They can also take paternity leave of up to two weeks’ which can be taken at the time of the birth. Paternity leave must be taken within 56 days of the birth or 56 days from the date the baby was due, if the baby was born early.
After the birth, surrogate parents can take Parental Leave of up to 18 weeks leave, per parent until the child is grown up. This is unpaid leave and parents must serve 21 days notice. They are only allowed to take a maximum of four weeks per child, per year. Again, eligible parents must have worked for the same employer for at least 26 weeks’ if they have or expect to have responsibility for the child’s upbringing.
We always recommend that employees check their contracts of employment and any staff policies and handbooks for potential contractual rights and pay above the statutory ones. They cannot be treated less favourably or denied the same provisions as other staff members as this would constitute discrimination and may entitle them to issue a grievance or claim.
Wms: What do surrogate parents most struggle with at work?
KH: Understanding the law and entitlements requires research and often they will have to choose one partner who can benefit from many of the benefits.
Some areas of the law that people struggle with include the right to two unpaid antenatal appointments and refusal of Parental Leave.
An employer cannot refuse Parental Leave from the start of the placement, but if this is requested at any other time, an employer can postpone parental leave if they can show that it would unduly disrupt their business. The employer must agree to allow the parent to take the same period of Parental Leave on alternative dates within six months.
Taking time off prior to the birth is usually the time where prospective parents will need to use annual leave or take unpaid leave and, if matters are complicated, such as the birth taking place overseas, this can potentially cause issues if employers are not supportive.
Wms: What is the significance of the conference in March in your view?
KH: It’s a good opportunity for prospective parents to meet the experts as well as to meet other parents who have been on the journey so they can share their experiences. This will help them to understand the surrogacy process, including all the pros and cons, and prepare for everything in advance. It will also reassure them about what is in store and what people they need to support them. It is an informative and supportive conference for anyone seeking to consider this journey who needs help to make the right choices for them.
*At the conference in March a panel of mums will speak about their experience of going down the surrogacy or donor route to parenthood.