Rights to time off for surrogate parents

If you are having a child through surrogacy, you and your partner may be entitled to adoption leave and pay and paternity leave and pay. If you are not eligible for paid leave, you may be able to take parental leave or annual leave.

This article outlines the rights that surrogate parents and intended have to time off when having a baby.

Maternity leave for surrogate parents

A surrogate, as a pregnant employee, is entitled to take up to 52 weeks’ maternity leave and up to 39 weeks statutory maternity pay regardless of whether she is genetically related to the child or what parental relationships the child has after they are born.

The surrogate’s partner is not eligible for paternity, parental leave, or shared parental leave (SPL) even if they are married to or in a civil partnership with the surrogate. This is because paternity leave, SPL and parental leave, unlike maternity leave, rely on someone having caring responsibilities for the child.

Becoming the legal parent

A surrogate is considered a child’s legal mother until and unless her status is altered by an order of the court.

If you use a surrogate, you will need to apply for a parental order (if you or your partner are genetically related to the child), or an adoption order (if neither of you are genetically related to the child).

For a Parental Order, you must apply before the baby is six months old. Once granted, a new birth certificate is issued, and parental responsibility is transferred to the new parents.

If you apply for an adoption order, the rules are different (see our article on adoption leave and pay)

Who is the second legal parent?

Who becomes the second legal parent at birth depends on the surrogacy arrangement.

• If the surrogate is married or in a civil partnership, her partner (unless they did not consent to the surrogacy arrangement) will be treated as the father of the child until a parental order is granted.
• If the surrogate is not married or in a civil partnership, the sperm donor will automatically be the second legal parent at birth (if he wants to be).
• The surrogate may also nominate a second legal parent. To do this, both the intended second parent and the surrogate will need to consent before the surrogacy takes place by completing the relevant consent forms. This is a complicated process, and you are advised to seek advice from your clinic early on if you wish to do this.

More information can be found via the Human Fertilisation and Embryology Authority.

The second legal parent may be eligible for paternity leave and Statutory Paternity Pay (SPP).

Transfer of parental responsibility

Couples who enter into a surrogacy arrangement may apply for a parental order which, if granted, transfers parental responsibility from the surrogate (and her partner) to them.

In order for a parental order to be granted, these conditions must be satisfied:

• The surrogate mother cannot be one of the applicants; and
• One of the applicants must have provided genetic material (sperm or egg)

You must apply for a parental order within the first 6 months after childbirth.

More information on applying for a parental order in a surrogacy arrangement is available on the government website.

If neither partner has provided genetic material, they may be able to adopt the child instead by applying for an adoption order.

What rights to time off do parents with a parental order have?

If you are an employee and intend to apply for a parental order then you have a right to take unpaid time off to accompany the pregnant surrogate mother to two antenatal appointments. Each appointment is capped at a maximum of 6.5 hours.

If you are eligible for and want to take it, you may take up to 52 weeks of adoption leave. You need to tell your employer of your intention by the end of the 15th week before the child is due. You will need to let your employer know the date the child is due and that you will be applying for a parental order.

You may also be eligible for up to 39 weeks of Statutory Adoption Pay (SAP). Only one parent will be entitled to adoption leave and SAP, the other may be eligible for two weeks of paternity leave and pay.

If you and your partner meet the eligibility criteria, you may be able to share your leave and pay by opting into Shared Parental Leave and Pay.

If you are not eligible for adoption or paternity leave but have worked for your employer for at least one year, and have, or expect to have parental responsibility for a child, you may be able to take unpaid parental leave instead. Parental Leave entitles you to take up to 18 weeks leave, per parent, per child, until your child’s 18th birthday. The maximum you can take per year is four weeks unless otherwise agreed with your employer. See our page on parental leave to find out more.

This advice applies in England, Wales and Scotland. If you live in another part of the UK, the law may differ. If you are in Northern Ireland you can visit the Labour Relations Agency or call their helpline Workplace Information Service on 03300 555 300.

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