Surrogacy employment rights

Karen Holden from A City Law Firm outlines employees’ rights when it comes to surrogate parenthood for National Surrogacy Week.

dads smiling at baby


Surrogacy has grown in popularity over the years, becoming a more accessible choice for modern families. However, the journey can become overwhelming without the right help in place and there are a lot of things intended parents (IP’s) might not necessarily know about their rights, especially when it comes to the workplace. Those looking to embark on surrogacy may wonder if they get the same rights and paid leave as those seeking maternity leave.

A City Law Firm’s Family team walk through the different parental leave options available for IPs and the eligibility criteria.

No specific policy?

For those without a specific surrogacy policy, statutory adoption leave and/or pay will automatically apply. To be eligible for this you must:

Be an employee – must have been continuously employed by your employer for 26 weeks and earning on average at least £120 per week before tax
Have given the correct notice – this must be provided 15 weeks before the expected week of the birth). This may be requested in writing.
Proof of the surrogacy – your employer may ask for a statutory declaration that you will be applying for a parental order (to become the child’s legal parents) following the birth of your baby.

If you qualify for adoption leave, you can take up to 26 weeks’ ordinary adoption leave, followed immediately by up to 26 weeks of additional adoption leave. You may also be entitled to up to 39 weeks Statutory Adoption Pay (SAP) if you meet the qualifying conditions.

Maternity and paternity and leave

In the UK it is only the surrogate mother who is entitled to maternity leave, not the IP. However, if you are genetically linked to the child (which one of the parents must be) then you can choose to take paternity leave and pay instead of surrogacy/adoption leave. You will not be able to claim both.

It’s important to note that if you are not deemed eligible then you employer must give you an SAP1 Form explaining why you cannot claim this.

Parental leave post birth

If you have applied for a parental order as an IP, you have the same rights and responsibilities and, as such, you are entitled to parental leave from your employer. Here you need to give 21 days’ notice. This is usually unpaid, but do check your staff handbook and contract.

Whilst you are on leave, your employment rights are still protected in relation to pay rises, accrued holiday and your return to work. By raising any questions with your human resources department, applying for leave or parental rights or later perhaps making an application for flexible working you cannot be treated less favourably or discriminated against for making these requests.

A specialist solicitor is recommended throughout the entire process to help make the journey as smooth as possible. They can answer any questions you have, including confirming what employment rights you have etc.

*Karen Holden is CEO of A City Law Firm.

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