Shared parental leave | Be prepared
The current position
Surrogacy is 'the practice whereby one woman carries a child
with the intention that the child should be handed over at
birth' to one of more persons who intend to bring up the child
as their own ('commissioning parents'). Employers may
therefore be dealing with employees who are seeking to adopt
children via surrogacy arrangements or women (or the partners of
women) who put themselves forward to act as surrogate
mothers.
The surrogate mother (whether or not genetically related to the
baby) is treated as the baby's legal mother unless that state
of affairs is altered by the court making either a parental order
or an adoption order:
- where at least one of the commissioning parents is genetically related to the baby, whether as a sperm or egg donor the court may make a parental order, under which legal parenthood is transferred to the commissioning parents.
- where neither commissioning parent is genetically related to the baby, they have to apply to court for an adoption order, and a registered adoption agency must be involved in the surrogacy process.
In summary the current entitlements are as follows and are
anomalous in that they exclude commissioning parents who are
genetically related to the child from any legal right to paid
leave:
Surrogate mother – will be entitled to
maternity leave and maternity pay in the normal way;
Surrogate's partner – may be entitled to
ordinary paternity leave and pay subject to meeting the eligibility
requirements;
Commissioning parents with an adoption order
– may be entitled to adoption leave and pay subject to
meeting the eligibility requirements;
Commissioning parents with a parental order
– no current right to maternity, paternity or adoption
leave.
What is changing?
The law is changing for babies born on or after 5 April 2015
through a surrogacy arrangement. The regulations introducing the
changes are still in draft form. However, they are likely to extend
statutory adoption leave and pay and statutory paternity leave and
pay to eligible employees who have entered into surrogacy
arrangements and intend to apply or have applied for a parental
order, thus removing the current anomaly.
Commissioning parents may also choose to opt into the shared
parental leave and pay system. This will effectively put surrogate
parents in a position akin to adoptive parents.
For employers, one aspect to watch out for is that it is not yet
clear what evidence of the surrogacy arrangement will be required
when proving eligibility for adoption leave. Commissioning parents
may need to provide a copy of the parental order/matching
certificate as applicable. However, it is possible that the regime
will rely on employees self-certifying as in other areas of
parental rights.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.