James Baker
Posted on 7 Jul 2020

Employment law – rights of surrogates

In this article we address the employment rights of Surrogates, please click here to read our accompanying article outlining the legalities of Surrogacy in the UK.

During and after a pregnancy, a Surrogate employee has the following legal rights:

Paid time off for antenatal care

All pregnant employees have a statutory right to paid reasonable time off during working hours for the purposes of receiving antenatal care.  Surrogates are no different, and are therefore automatically entitled to this, regardless of hours worked or length of service.

Statutory Maternity Leave

Surrogate employees are entitled to Statutory Maternity Leave (just as any other pregnant employee would be) regardless of length of service or full or part-time status, if they give birth and comply with the following notification conditions.  The employer must be notified at least 15 weeks before the Child is due:

  • that the Surrogate is pregnant;
  • the expected week of childbirth; and
  • the date she intends to begin maternity leave.

The earliest that leave can be taken is 11 weeks before the expected week of childbirth.  From the day of childbirth, the first two weeks' leave (or four weeks' leave in the case of factory workers) is compulsory.  The statutory entitlement to 52 weeks' leave is comprised of two consecutive periods of 26 weeks, being 'Ordinary Maternity Leave' and 'Additional Maternity Leave'.

Whilst on maternity leave, the Surrogate may be eligible for:

  • Statutory Maternity Pay (for 39 weeks): entitlement is conditional upon her having both 26 weeks' continuous employment with her employer (up to and including the 15th week before the expected week of childbirth) and average earnings of at least the lower earnings limit for National Insurance during the 8 week period ending with the 15th week before the expected week of childbirth. The rates of payment are 90% of average earnings for the first six weeks of leave, then for the remaining 33 weeks the lower of either the prescribed rate of £148..68* per week or the 90% of earnings rate.
  • Contractual Maternity Pay: this depends on the arrangements with her employer, and this may be more than Statutory Maternity Pay.
  • Help from the Government (i.e. maternity benefits): if she does not qualify for Statutory Maternity Pay, she may qualify for maternity allowance or other social security payments.
  • Protected employment rights:

The Surrogate's employment rights are protected while she is on Statutory Maternity Leave.  This includes her right to pay rises, accrue holiday and return to work.  Her employer cannot change her contractual terms and conditions without her agreement, without being in breach of contract.

  • Return to her job:

Following her period of maternity leave, the Surrogate is generally entitled to return to work to the same job, on the same terms and conditions as if she had not been absent.

Surrogates are entitled to these rights irrespective of the surrogacy arrangements following birth.

Regardless of her employment status, it is important to consider that any Surrogate is also legally entitled to change her mind and keep the Child following birth, even if they are not genetically related.  This is because surrogacy arrangements are not legally enforceable in any circumstances in the UK.

The Surrogate is not entitled to Shared Parental Leave if the surrogacy arrangement is followed, given that she is not taking time off to care for the Child.

There is no legal requirement for a Surrogate's employer to conduct a specific, separate risk assessment in the workplace for her when notified of her pregnancy. However, it would be good practice to do so.

A right to payment?

Whilst it is perfectly legal for Surrogates to receive payment from the Intended Parents for reasonable expenses incurred in the surrogacy arrangement, there is no legal provision for this.  It is therefore an expectation, rather than legal requirement, that reasonable expenses will be paid.

What amounts to being 'reasonable expenses' is undefined. Generally, it is taken to cover costs such as loss of earnings (to the extent not covered by her employment), maternity clothes, travel costs that the Surrogate and her family incur when visiting the Intended Parents and the travel and accommodation costs for attending any fertility clinic or hospital appointments. Costs for counselling or professional support in connection with the surrogacy may also be included. Those involved should give careful consideration to any payments made to the Surrogate and a clear record so they can account for these within the process for a parental order. Surrogacy UK can provide information on expenses which are generally considered to be acceptable and offers an expenses calculator for Surrogates to allow them to set out a reasonable estimate at the beginning of any surrogacy arrangement.

Rights of Partners of Surrogates

A spouse or civil partner of a Surrogate will naturally be implicated in a surrogacy arrangement.

Legislation recognises that if the Surrogate is married at the time of conception, her husband will be treated as the legal father of the Child (i.e. the second parent) with parental responsibility (unless a Court is satisfied that he did not consent to the arrangement). The situation is exactly the same for Surrogates in a civil partnership with another woman. Their civil partner will be legally regarded as the Child's second parent.

If the surrogate is not married or in a civil partnership at the time of conception, her partner will not be legally regarded as the Child's second parent.

In light of this, the Surrogate's spouse or civil partner is entitled to:

  • Statutory Paternity Leave:

This is a period of two weeks' leave which can be taken at the time of the Child's birth.  In any event, it must be taken within 56 days of either the date of birth or due date (if the baby was born earlier). The partner will be entitled to this if they are:

  • an employee;
  • have been working for their employer for 26 weeks by the 15th week before the Child is due (or if the Child is born before then, they would have done so);
  • are taking time off to either care for the Child or support the Surrogate; and
  • have notified their employer at least 15 weeks before the Child is due that they intend to take leave.

Whilst on paternity leave, they may qualify for Statutory Paternity Pay.  This is dependent upon earnings.  They must earn over £116 per week, on average, before tax in the 8 weeks (if paid weekly) or 2 months (if paid monthly) before the 15th week before the Child is due.

Statutory Paternity Pay is paid for the 2 week period at a rate of £148.68* per week.  If they do not qualify for this payment, they may be able claim Income Support during paternity leave.

As is the position with the Surrogate, their spouse or civil partner is not entitled to Shared Parental Leave if the surrogacy arrangement is followed.

However if the Surrogate changed her mind and kept the Child, and her spouse or civil partner remained as the Child's second legal parent, then they may be entitled to take Shared Parental Leave subject to eligibility.

Rights of Intended Parents

Legislation (the Human Fertilisation and Embryology Act 2008) stipulates that Intended Parents can only acquire legal parenthood and parental responsibility of the Child in the place of the Surrogate (and their spouse or civil partner, if relevant) by way of a Court Order (Parental or Adoption).

Intended Parents should be aware that the legal requirement for a court order remains, regardless of steps taken abroad or the involvement of a surrogacy agency.  This is because there is no international harmonisation of surrogacy law.

There are various rights that Intended Parents are afforded, following drastic changes to the law which came into force in April 2015:

  • Time off to attend antenatal appointments:

Intended Parents that are eligible and intending to apply for a parental order should be entitled to unpaid time off to accompany the Surrogate to up to 2 antenatal appointments (each being capped at a maximum of 6.5 hours).

  • Statutory Adoption Leave:

The law in relation to Adoption Leave was drastically updated in April 2015 in order to improve the rights of Intended Parents in surrogacy arrangements.

Prior to the changes in April 2015, Intended Parents were not entitled to take either Maternity or Adoption Leave following the birth of the Child.

This remains the position with Maternity Leave. Unlike Surrogates, a female Intended Parent (the Intended Mother) is not entitled to take Statutory Maternity Leave.  There has been previous European case law debating whether an Intended Mother should be entitled to such leave, but it was held not to be the case.  The UK legal position is therefore clear on this point.

However, as a result of the April 2015 changes, Intended Parents now have the equivalent benefit of the right to take Adoption Leave in surrogacy arrangements.

This leave is available to an Intended Parent employee that is qualifying and intending to apply for a Parental Order (if the Child is due on or after 5 April 2015), in order to become the Child's legal parents.  It is similar to Statutory Maternity Leave in that it is 52 weeks' leave comprised of two consecutive periods of 26 weeks, being 'Ordinary Adoption Leave' and 'Additional Adoption Leave'.

This right is not subject to length of service, in line with Maternity Leave.

The qualifying conditions are that they:

  • are an employee;
  • notify their employer at least 15 weeks before the Child is due that they intend to take leave; and
  • intend to apply for a Parental Order within 6 months of the birth and expect the Order to be granted (e.g. no convictions involving children, the Surrogate (and other legal parent) agree to the arrangement).

Adoption Leave in surrogacy arrangements can only begin from the day of the Child's birth, or if at work that day, the day after.

Whilst on Adoption Leave, they may qualify for Statutory Adoption Pay.  This is conditional upon working for their employer for at least 26 weeks by the 15th week before the Child is due, and the same earnings requirement as for Statutory Paternity Leave.  The rate of payment is the same as for Statutory Maternity Leave (i.e. 90% of average earnings for the first six weeks of leave, then for the remaining 33 weeks the lower of either the prescribed rate of £148.68* per week or the 90% of earnings rate).

  • Statutory Paternity Leave:

An Intended Parent can take a 2 week period of Statutory Paternity Leave if they are eligible employees intending to apply for a Parental Order within the six month time limit.

The eligibility criteria is the same as set out above (under 'Statutory Paternity Leave').

There are also additional qualifying conditions, namely that:

  • the Child must be due on or after 5 April 2015; and
  • Intended Parents must be in a couple and have responsibility with their partner for the Child.

This leave is only available to the Intended Parent that is not electing to take Adoption Leave.

There is no entitlement to this leave if the Intended Parent opts to take Shared Parental Leave instead.

  • Shared Parental Leave:

Either of the Intended Parents can take Shared Parental Leave if they both qualify (they must qualify for Adoption Leave) and the one who has elected to actually take the Adoption Leave ends it early or returns to work. This is available if the Child is born on or after 5 April 2015.

The qualifying conditions are that the Intended Parent:

  • is an employee;
  • shares responsibility for the Child with their spouse, civil partner, joint adopter, the Child's other parent or their partner (if they live together);
  • have been working for their employer for 26 weeks by the 15th week before the Child is due;
  • remain in employment while taking the leave; and
  • have given at least 8 weeks' notice of their intention to take the leave.

Taking the leave means that the remainder of the 52 weeks of Adoption Leave is treated as Shared Parental Leave, and the remainder of the 39 weeks of Adoption Pay can be taken as Statutory Shared Parental Pay (at a rate of £148.68* per week).

  • Parental Leave:

Intended Parent employees may also wish to take Parental Leave, which differs to Shared Parental Leave. Parental Leave is an additional form of leave which entitles them to take up to 18 weeks leave (per parent, per child) up the Child's 18th Birthday. This is subject to a restriction of up to 4 weeks leave in any one year.

At the time that this leave is to be taken, the qualifying conditions are that the Intended Parent must:

  • have been continuously employed for at least 1 year; and
  • have, or expect to have, responsibility for a child.

At least 21 days' notice must be given to the employer and the leave is usually unpaid (unless the employer agrees otherwise).

Deciding what leave to take

Intended Parents (including same sex partners and civil partners) have a choice as to deciding who will take what leave in a surrogacy arrangement.

  • Either of the Intended Parents may elect to be the 'Adopter' for the purposes of taking Adoption Leave either on their own or in conjunction with the other partner taking Paternity Leave and/or Shared Parental Leave, provided that they fulfil the eligibility requirements in each case.
  • Either may elect to take Shared Parental Leave, and this period of leave can be split into three separate blocks of time instead of taken in one go if the employer agrees to this.
  • Both Intended Parents could chose to take unpaid Parental Leave in respect of the Child, since this form of leave is in addition to Statutory Maternity, Paternity, Adoption and (since April 2015) Shared Parental Leave.

* Please note that these rates are reviewed by the Government every April, and are therefore subject to change.

Please click here to read our related article on Surrogacy Law in the UK.

This note is for general information only and does not, and is not intended to, amount to legal advice and is not intended to be relied upon as such.  If you have any questions relating to your particular circumstances, you should seek independent legal advice.