Intended parents using surrogacy granted rights to leave and pay

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.