Under the law, if your baby is born alive at any point in your pregnancy, even if it’s alive only for one second, you are entitled to all of your maternity rights.
If your baby is born dead before the 24th week of pregnancy, it is called a miscarriage.
If your baby is born dead after the beginning of the 24th week of pregnancy it is called a stillbirth. You will get a certificate of stillbirth; this is the evidence you need to claim Statutory Maternity Pay or Maternity Allowance.
If you have a miscarriage, you will not be entitled to maternity, paternity or shared parental leave or pay. You should take sick leave for as long as your GP signs you off sick.
Sick leave for a miscarriage may be protected in the same way as sick leave for a pregnancy related illness, if so you are not limited in how much you can take and it must be recorded as such and does not count towards your sickness record. Even if it is not protected in the same way, employers have to treat you fairly and case law suggests that it is unlawful to dismiss someone for an absence directly caused by miscarriage.
Your sick pay (including Statutory Sick Pay) will be paid in the same way as for any other employee, and you may be only paid it for a certain amount of time.
For sick pay you are entitled to what your employer offers any employee who is on sick leave. Your employer may offer you contractual sick pay, or just Statutory Sick Pay. If you do not earn enough to claim Statutory Sick Pay or your Statutory Sick Pay runs out, then you may be entitled to Employment and Support Allowance (in some areas, income-related Employment and Support Allowance is replaced by Universal Credit if you are making a new claim). Check with your Jobcentre Plus office.
You or your partner’s employer may also provide compassionate leave in such a case, or agree a period of annual leave or unpaid leave.
- You are entitled to your maternity rights
If you have a stillbirth, or if your baby is born alive but later dies, even after a few seconds (and even if this takes place before the 24th week of pregnancy), you are entitled to all your maternity rights. If you are already on maternity leave you do not have to take any action, but if the birth happens before you intended to start maternity leave, or before you gave notice of maternity leave to your employer, your maternity leave will start the day after the birth and you will need to inform your employer as soon as you can.
If your baby is born or stillborn before the end of the qualifying week for Statutory Maternity Pay (SMP), special rules apply in determining whether you will qualify for SMP. The eight week test period used to calculate your average earnings runs to the last payday in or before the week in which the birth/stillbirth occurred, and you will be treated as though you had 26 weeks’ service by the end of the qualifying week if you would have had, had the baby not been born early.
If you are entitled to Maternity Allowance (MA), but have not yet claimed it, you should claim it as soon as you can, explaining on the form what happened. If you have claimed MA but are not yet receiving it (for example because you were not planning maternity leave to start yet) you must let Jobcentre Plus know what has happened.
If you are not working, then you may be able to get Income Support for 15 weeks after the birth/stillbirth, but only if you meet all the other conditions. In some areas, if you make a new claim for Income Support you will be told to claim Universal Credit instead.
If you return to work within six months of the birth you are entitled to the same health and safety rights as other women who have given birth within the last six months.
2. Your partner is entitled to his paternity rights
If you have a partner who is eligible for paternity leave, he or she will still be entitled to take this after a stillbirth. This leave must be completed within 56 days of the birth; however, if the baby was born early the leave must be completed within the period from the actual date of birth to 56 days after the expected week of birth.
3. But the rules are different for Shared Parental Leave
If you or your partner had given notice before the birth of the baby to take Shared Parental Leave and the baby is born but then dies, you or your partner are entitled to take the leave that has already been booked. To cancel any shared parental leave that has already been booked, you should give at least eight weeks’ notice. The law says if you want to make changes such as to reduce the amount of leave booked or vary blocks of leave into a single period of shared parental leave, you can give one notice of variation, subject to eight weeks’ notice. However, you and your employer may come to an agreement that you will take less SPL than you had planned.
If the baby dies before you or your partner have given notice to book Shared Parental Leave, then unfortunately any further entitlement to Shared Parental Leave will be lost, as you cannot give a notice to book SPL after the baby has died.
In case of a stillbirth (where a baby is born dead after 24 weeks of pregnancy), the regulations are unclear but it is unlikely that you will be entitled to Shared Parental Leave. In such cases, the mother can still take maternity leave and the partner can still take paternity leave (assuming he or she is eligible).
You can get more information and support from the organisation SANDS.
If you have a stillbirth, or a live birth but the baby dies afterwards, you may be entitled to the Sure Start Maternity Grant and/or the Funeral Expenses Payment.
For a live birth, you are entitled to Child Benefit and Child Tax Credit, if you meet the other conditions, for the period from the birth until eight weeks after the baby’s death. You may also be entitled to some Working Tax Credit, or you may be able to claim Income Support for 15 weeks after your pregnancy ends, if you meet the other conditions. You can make a claim for Child Benefit and for tax credits up to three months after you are entitled to them.
In some areas, if you make a new claim for Child Tax Credit, Working Tax Credit or Income Support, you will be told to claim Universal Credit instead.
You can claim a Funeral Expenses Payment if you are responsible for funeral expenses. You will be treated as responsible if you are the parent of a stillborn child, or the parent’s partner. Usually this must be for a funeral in the UK, although sometimes it is possible to get help with a funeral in another EEA state. You must be awarded a qualifying benefit in respect of the day you claim the payment. The qualifying benefits are:
- Income Support.
- Income-related Employment and Support Allowance
- Income based Jobseeker’s Allowance.
- Child Tax Credit at a rate higher than the “family element”.
- Working Tax Credit including the disability or severe disability element.
- Housing Benefit.
- Pension Credit.
- Universal Credit.
You can claim at any time from the date of death until up to three months after the funeral. If you receive a qualifying benefit after you have claimed, but it covers the day you claimed the payment, you should reclaim within three months of getting the benefit decision. You can claim on form SF200 which you can get from the Jobcentre.
If you want more information on the Funeral Expenses Payment contact your local Citizens Advice Bureau.
You can get further advice and support if your baby is stillborn or dies from SANDS.
This advice applies in England, Wales, Scotland and Northern Ireland. If you live in another part of the UK, the law may differ. Please call our helpline for more details.
If you have further questions and would like to contact our advice team please use our advice contact form below or call us.