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Shared Parental Leave for Parents using adoption or surrogacy

Shared Parental Leave for adoptive parents

If you are adopting with your partner, and you meet the conditions of entitlement, you can take SPL. You and your partner can decide how to share this in the same way as other parents. There is a two week period of compulsory adoption leave.

Where a couple are adopting jointly, and both are employed, one of them must decide to be the main adopter for the purposes of adoption leave. This is the person who can take adoption leave, which is now a day one right (this means that since 5 April 2015 you don’t have to have any length of service with your employer to take up to 52 weeks adoption leave). It’s important that you are clear about which of you is going to exercise the right to adoption leave and the right to take paid time off for up to five adoption appointments. The other partner, if employed, can have unpaid time off for up to two appointments.

The other partner can, if they are also employed, take paternity leave (2 weeks taken within 56 days of the placement of the child with your family). You would need to meet the usual conditions for paternity leave, which haven’t changed – so you need to have worked for your employer for 26 weeks by the end of the week you are matched for adoption.

After the first 2 weeks of adoption leave, if the couple want to share the rest of the leave they can do so, subject to meeting the same conditions as for other parents (they would need to have given notice in advance, see below).

Being a partner in this situation is the same as for a birth child, i.e. someone who is:

Married to the adopter

The civil partner of the adopter

The partner of the adopter and lives with her/him and the child in an ‘enduring family relationship’ (with the same exclusions of family members who cannot also be partners).

Parents having a child through surrogacy

A parent having a child via a surrogate mother also has the right to adoption leave if they are employed. This applies if they either have a parental order with their partner, or intend to apply for one (and expect it to be granted). At least one of the couple must be the biological parent of the child.

One of the couple can therefore take adoption leave and the other paternity leave, provided they meet all the conditions. Adoption leave is now a day one right for employees. Paternity leave still requires that an employee has been employed for 26 weeks by the end of the 15th week before the baby is due. So, if you are the partner of someone who is taking adoption leave for a baby born via a surrogate, you will need to have worked for your employer since before the pregnancy began.

In addition, for both statutory adoption and statutory paternity pay, you need to have average earnings of at least £120* a week.

Shared Parental Leave and Pay also apply to this group of parents, again if they meet the conditions. This means that the person taking adoption leave can shorten the leave to take/share shared parental leave. This gives couples who both qualify for SPL the option to share leave after the first two weeks, in the same way as other parents.

Choices for adoptive parents

Adoptive parents, whether using a surrogate or being matched with a child, may need to make choices about which parent takes adoption leave and which paternity leave (where both are employed) as well as whether to use SPL.

When considering the options:

Statutory Adoption Pay is paid at 90 per cent of average earnings for the first six weeks (from 5 April 2015) and then the statutory rate of £151.20* for the remaining 33 weeks.

Statutory Paternity Pay remains capped at £151.20* a week.

Statutory Shared Parental Pay is paid at the same rate (and so will be 90 per cent of earnings or £151.20*, whichever is less, throughout)

With all of these forms of leave, an employer may offer more generous contractual terms so do check.

*These are the statutory rates set for the tax year 2020/21 – the rates usually change every year.

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