Maternity leave for surrogacy will fail international surrogacy parents unless we act now

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 (see BioNews 748).

The draft regulations prepared by the Department of Business Innovation and Skills are not yet published but Brilliant Beginnings, which has been working with the civil servants responsible, is concerned about a serious hole in the detail for international surrogacy parents. On behalf of the rapidly growing numbers of parents conceiving through surrogacy overseas, we are appealing to the Government to reconsider before it is too late.

The regulations will provide that, like parents who adopt, intended parents through surrogacy who are applying for a parental order can claim a long period of leave for one parent (equivalent to maternity leave) and a shorter period of leave (equivalent to paternity leave) for the other. The issue is when the leave should start. In UK cases, leave will start from the date the child is born. But the current proposal is that if a surrogate child is born overseas, leave will not start until the date the child enters the UK. The reasoning, as we understand it, is consistency with Government policy in adoption cases.

But surrogacy is not adoption, and we need some common sense applied. Children born through surrogacy become their parents' responsibility immediately from birth, unlike adopted children who are looked after by others until the adoptive parents are ready to bring them home.

Surrogate children born overseas cannot be brought into the UK immediately after the birth in most cases, since there are often lengthy immigration procedures (at least four or five months for a British passport following surrogacy in India, for example). New parents cannot be overseas caring for their child during this time and also be in the UK continuing to work, yet under the new regulations they will have no right to time off work.

This is a typical scenario: imagine that, after a history of years of miscarriages, you are an intended mother expecting your first child through surrogacy in India. Your long-awaited child is born into your arms.

In India you are the legal mother registered on your child's birth certificate. You take your child home to a temporary apartment, and apply for a British passport. The process takes four or five months, during which time you will be caring for your child but have no right to time off work. Your UK employer says they are sorry but they can't offer any discretionary time off. You have no protected employment status and you can't go to work because you are in India. Your employment is terminated.

For those who become parents through international surrogacy, starting surrogacy leave from entry to the UK is a disaster. It means that the new rights will, in most international cases, give no benefit at all. What a shame. And what a contrast to the positive response that greeted the Government's announcement in 2012 that it was introducing maternity leave and pay for parents through surrogacy to correct this longstanding gap in the law.

Originally, the issue had been raised in Parliament by John Healey MP, who, struck by the story of two constituents, said: 'It is wrong that mothers like Jane are denied the same basic rights to the time they need together with their newborn babies that other mothers have. Amy simply wanted Jane to have the same joy as a mother as she had with her own son Archie. Together they make a very powerful case for legal change. This is their campaign and I hope this House will back them today'.

The Government's response ultimately led to changes in the law, ratified through the Children and Families Act 2014, which was given royal assent last month. It was agreed that the new rights to leave and pay should apply to parents with a surrogate child born in the UK or overseas.

Brilliant Beginnings is therefore appealing to the Government - please think again before the regulations are ratified, and provide that employment leave should start from the child's birth in all cases, and not just those where the child is born in the UK. Would you ask any other new mother to defer the start of her maternity leave until her child was five months old?

The first months of life are the time when leave is needed, and the needs of surrogate children do not differ according to whether they are born in the UK or overseas.