Surrogacy is when another woman carries and gives birth to a baby for the couple who want to have a child. One or both of the couple may provide the genetic material for the child. You should seek legal advice before entering into a surrogacy arrangement.
What rights does the surrogate have?
A surrogate (whether or not they are genetically related to the child) is considered the child’s legal mother until and unless that status is altered by an order of the court (a “Parental Order” – see below). A surrogate mother (who will be giving birth to the baby) will be entitled to statutory maternity leave and pay in the same way as other employees. Being a surrogate does not affect your right to maternity leave, even after the child is born.
Who is the second legal parent?
Who becomes the second legal parents at birth depends on the circumstances.
Where the surrogate mother is married/ in a civil partnership, her husband/civil partner (unless s/he did not consent to the surrogacy arrangement) will be treated as the father of the child until and unless a Parental Order is granted.
If the surrogate mother is not married/in a civil partnership, the person providing the sperm will automatically be the second legal parent at birth. They may be eligible for paternity leave and Statutory Paternity Pay.
The surrogate may also nominate another second legal parent (for example, the intended mother). To do this, both the intended second parent and the surrogate will need to give their 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.
After birth: how does the legal responsibility get transferred onto the intended parents?
Where a couple have entered into a surrogacy arrangement with the surrogate mother they may apply for a Parental Order which, if granted, transfers the legal parental responsibility on to those two people. A single person can not apply for a Parental Order in a surrogacy situation. In order for a Parental Order to be granted, a number of conditions must be satisfied including:
- the surrogate mother is not one of the applicants
- one of the applicants has provided genetic material
- the applicants are partners, and the child’s home is with the applicants.
You must apply for a parental order within the first 6 months of childbirth.
More information on applying for a Parental Order in a surrogacy arrangement is available on gov.uk.
If neither of the couple has provided genetic material, or they are single, they may be able to adopt the child instead by applying for an Adoption Order.
If your surrogate gives birth abroad, you can only apply for a parental order if you and your partner are living in the UK.
The child will need a visa to enter the UK during this process. Different countries have different rules for surrogacy arrangements, so applying for a parental order in this scenario can be complicated and may take several months to complete.
What rights do parents with a Parental Order have?
If you are an employee and either the father of the expected child or a parent intending 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.
If you are eligible for and want to take Statutory Adoption Leave in a surrogacy arrangement, 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 them know the date your child is due and that you will be applying for a Parental Order. You may also be eligible for Statutory Adoption Pay. Only one parent will be entitled to Statutory Adoption Leave, the other may be eligible for Statutory Paternity Leave (Adoption).
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 leave or paternity leave (adoption) 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.
The Human Fertilisation and Embryology Authority: https://www.hfea.gov.uk/treatments/explore-all-treatments/surrogacy/
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.