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
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
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.