Many of you will know what a huge Archers fan I am and will perhaps also be celebrating Ian and Adam’s happy family news now that Lexi is pregnant. But what exactly are the rights of various parties to a surrogacy arrangement? And what should an employer know? I have included below some helpful information for all parties.
What is surrogacy?
Firstly, just for clarity, surrogacy is the term used when a woman carries a baby for someone who is unable to conceive or carry a baby themselves. Surrogacy in the UK is legal and is regulated by the Surrogacy Arrangements Act 1985. The Intended Parents and the surrogate can record how they would like the arrangement to work in a surrogacy arrangement, but it isn’t legally enforceable. The surrogate will be the child’s legal parent at birth. In addition, if the surrogate is married or in a civil partnership their spouse or civil partner will be the child’s second parent. Legal parenthood is usually transferred by way of a parental order or adoption after the birth as long as one of the Intended Parents is a genetic parent of the child born to them through surrogacy. Presently single parents cannot apply for parental orders in supremacy cases although the Government intends to change this. It is determined through the family courts system.
In terms of the surrogacy arrangements, the surrogate cannot get paid in the UK however they can receive reasonable expenses.
What rights do surrogate parents have at work?
In 2014 the Government introduced the right for Intended Parents in a surrogacy arrangement the right to adoption leave and pay if they intend to apply for a parental order within six months of the child’s birth.
As you may already be aware, the right to adoption leave is a day one right for employees and the right is for up to 52 weeks leave providing due notice is given 15 weeks before the baby is due that they intend to take adoption leave. If asked, the employee may have to provide a statutory declaration that they will apply for a parental order for the baby with their spouse or partner and that they expect the parental order to be granted. If the parent meets the qualifying conditions in terms of amount of earnings and has continuous employment of 26 weeks, they will qualify for adoption pay but have to comply with certain notification requirements.
Adoptive parents can also choose to reduce the amount of adoption leave and pay they take in favour of opting in to take shared parental leave. They will need to opt in to the shared parental leave system, but could then both be off work, at home, with their baby for weeks/months as they choose.
What rights does the surrogate have?
She will continue to be entitled up to 52 weeks maternity leave to recover from the birth and to statutory maternity pay if she meets the qualification and notification requirements.
Are there other rights for Intended Parents?
Intended Parents have the right to unpaid time off to attend up to two ante-natal appointments with the surrogate if she is agreeable. This sort of arrangement can be included in the surrogacy arrangement if desired.
Outlined above are some of the practical considerations but for all parties i.e. as surrogate or as Intended Parent, there will be a whole range of different emotions during this time. For example, when the pregnancy test is done, if pregnancy takes place, at around the time of the birth, immediately after the birth and how the parties all interact with each other. Sensitive consideration of this in the workplace would be extremely helpful for all parties and will be natural in a respectful and inclusive workforce.
Where can we go for help?
For employers you can ask me about anything in this blog. There’s also help on adoption leave and pay in the ACAS website - www.acas.org.
There are five surrogacy organisations in the UK who offer specialist advice for Intended Parents who wish to consider surrogacy. They are:
1. Surrogacy UK
2. Childlessness overcome through surrogacy (COTS)
3. Brilliant Beginnings
4. The British Surrogacy Centre
5. Support Organisations Surrogacy UK
Please contact me if you wish to discuss any aspect or if you need your family friendly policies reviewed as a result of this.