Employment Rights and Surrogacy Arrangements April 2011

Factsheet –Employment Rights for Employees who become parents through Surrogacy

This factsheet is designed to be a quick guide to the rights of parents who have children through a surrogacy arrangementin the UK

Introduction

There is often confusion regarding theemployment rights of parents who have children through a surrogacy arrangement and there have been calls to review the current legislative provisions. Many rights, including entitlement to Maternity Leave and Maternity Pay, are only available to birth mothers and as such are not afforded to the parents of children born through a surrogacy agreement. A woman who has a child through a surrogacy agreement, who is not the birth mother of the child, will not be able to benefit from Statutory Maternity leave and Maternity Pay. Parents who have children through surrogacy are not also not entitled to Statutory Adoption Leave. However, the current legislation does provide for some rights to the parents of children born through a surrogacy agreement, which are described below.

Thestatutory rights are more limited than those afforded to birth mothers and their partners, and it is always advisable to discuss your leave options with your employer.Your contractual employment rights may be more generous than those afforded by statute. Given that the statutory rights to leave and pay are very limited forthe parents of children born through a surrogacy arrangement , some employers may allow extra contractual rights to leave to employees who become parents in this way. Some employers further offer flexible leave policies to allow any employee who is primarily responsible for the upbringing of a child to take a certain amount of leave.

Surrogacy agreements are subject to strict legal regulations and commercial surrogacy agreements remain illegal in the UK. The law relating to surrogacy agreements is complicated and it is important to obtain legal advice before entering into a surrogacy agreement. This factsheet is not intended to be used as guidance for any parents considering a surrogacy agreement.

In England, it will always be the birth mother who is registered as the legal mother of the child on the Child’s Birth Certificate, regardless of the identity of the biological mother of the child.If the birth mother is unmarried, the intended father may be registered as the legal father on the birth certificate (this is described below). Any other intended parent of the child must obtain a Parental Order in the High Court in order for legal parental responsibility to be permanently conferred upon them. Once the Parental Order is granted, the legal status of the parent(s) of the child is confirmed and a new birth certificate will be issued.

The statutory rights are particularly limited for any intended parents who are not the “legal” father of the child (i.e. the father of the child registered on the birth certificate). This includes an intended mother and any intended father who is not registered on the birth certificate. If you are an intended parent in this position, we would advise that you save up your entitlement to annual leave and discuss any options for extended leave with your employer.

Ordinary Paternity Leave

Ifyou become a parent through a surrogacy agreement, you will be entitled to Paternity Leave providing:

  1. You are the legal father of the child.
  2. You have or expect to have responsibility for the child’s upbringing.
  3. You have worked continuously for your employer for a period of not less than 26 weeks by the end of the 15th week before the baby is due (i.e. if you started to work for your employer before the birth mother became pregnant).
  4. You continue to be employed by the employer on the day that the child is born.

In the case of a surrogacy agreement, where the parent has no enduring relationship with the birth mother, a father will only be entitled to Paternity Leave if he is recognised as the legal father of the child. In order to be recognised as the legal father of the child, you must be registered on the birth certificate. If the birth mother is unmarried, she can agree to register your name on the birth certificate to confirm that you are the legal father of the child. You must register the birth together with the birth mother in order to be registered as the legal father. If you are registered on the birth certificate of the child, you will be entitled to statutory paternity leave.

However, if the woman acting as a surrogate is married or in a civil partnership, her husband or partner will be automatically registered on the birth certificate and you will not be recognised as the legal father of the child. In this situation, without a Parental Order (described above) confirming your status as the legal father of the child, you will not be entitled to statutory Paternity Leave, even if you are the biological father of the child.[1]

If you expect to be entitled to Paternity Leave,you should give your employer written notice of this. This notice should be given before the date that the woman acting as surrogate is 25 weeks pregnant.

You can choose when to take your leave, which can be up to two weeks, and usually has to be taken within 56 days of the birth.

Ordinary Paternity Pay

If you are entitled to Paternity Leave, and your average weekly earnings are £102 or more before tax (from April 2011), you will also be entitled to Statutory Paternity Pay(SPP).

From April 2011, Ordinary Statutory Paternity Pay is £128.73 or 90% of your average weekly earnings, whichever is less. Paternity Pay is paid for one or two consecutive weeks.

Additional Paternity Leave

The Additional Paternity Leave Regulations came into force in April 2010. In some circumstances,the parentsof children born through a surrogacy agreement will be able to benefit from Additional Paternity Leave if their child wasdue on or after 3 April 2011.As a parent having a child through a surrogacy agreement, you will not been entitled to Additional Paternity Leave by virtue of being partner or husband of the birth mother of the child. You must, therefore, be the legal father of the child to benefit from these new regulations if you are parent having a child through a surrogacy agreement.

You may qualify for Additional Paternity Leave if:

  1. Your baby is due on or after 3 April 2011.
  2. You are the legal father of the child (see Ordinary Paternity Leave above).
  3. You have worked continuously for your employer for a period of not less than 26 weeks by the end of the 15th week before the baby is due (i.e. if you started to work for your employer before the birth mother became pregnant).
  4. You remain in continuous employment with the same employer until the week before the first week you wish to take additional paternity leave.
  5. You have the main responsibility for the upbringing of the child.
  6. The woman giving birth to the child is eligible for one or more of the following:
  7. Maternity Leave
  8. Statutory Maternity Pay; or
  9. Maternity Allowance

(In the case of a surrogacy agreement, the woman acting as surrogate will continue to be entitled to full statutory maternity leave and pay, even if she does not play any role in the future care of the child)

  1. The woman giving birth to the child returns to work when she has at least two weeks of her maternity leave remaining.
  2. The woman giving birth to the child is prepared to consent to her details being processed by your employer (see also notice requirements below).
  3. Your child is between 20 weeks and one year old.
  4. You comply with the relevant notice and evidential requirements (see below).

N.B. A woman who has a child through a surrogacy agreement, who is not the birth mother of the child, will not be entitled to Statutory Maternity Leave, Maternity Pay or Maternity Allowance.

Notice and Evidential requirements for Additional Paternity Leave

You must comply with the relevant notice and evidential requirements in order to be eligible for Additional Paternity Leave.

At least eight weeks before the date you intend to take Additional Paternity Leave, you should give your employer the following:

  • A “Leave Notice”: this is a notice specifying your child’s expected week of birth, your child’s actual date of birth and the start and end dates of Additional Paternity Leave you intend to take.
  • An “Employee Declaration”: this is a declaration that you must sign confirming that you are taking additional Paternity Leave in order to care for your child and confirming that you are the father of the child.
  • A “Mother Declaration”: this is a declaration written by the birth mother stating
  • Her name and address
  • The date she intends to return to work
  • Her National Insurance number
  • That you are the father of the child
  • That, to her knowledge, you are the only person exercising the entitlement to Additional Paternity Leave in respect of the child
  • That she expects you to have the main responsibility for the upbringing of the child
  • That she consents to your employer processing the information contained in the Mother’s Declaration.

Your employer may request a copy of your child’s birth certificate and/or details of the birth mother’s employer. Your employer should confirm your Additional Paternity Leave in writing within 28 days of receiving the notice and evidential documents described above.

The minimum Additional Paternity Leave that can be taken is two weeks and the maximum is 26 weeks. This leave must be taken in one continuous period.

You may vary or cancel your Additional Paternity Leave but must give subsequent notice of at least 6 weeks in order to do this.

Additional Paternity Pay

If you are eligible for Additional Paternity Leave, you may also be entitled to Additional Statutory Paternity Pay, paid at the same rate during the period when the birth mother would have received Statutory Maternity Pay (SMP) or Maternity Allowance (MA).

In order to be entitled to this pay, the birth mother must have:

  1. Returned to work
  2. Stopped claiming SMP or MA and have at least two weeks of the relevant statutory pay

In order to be entitled to SMP, the birth mother must:

  1. Have worked continuously for her employer for a period of not less than 26 weeks into the 15th week before the baby is due (i.e.she must gave started working for her employer before the she became pregnant)
  2. Have earnedon average over £102 a week during roughly weeks 18-25 of her pregnancy (from April 2011).

If the birth mother is not entitled to SMP (for instance if she is self-employed or has been working for several different employers) she may still be entitled to MA. To qualify for MA, the birth mother must:

  1. Have been employed/ self employed for at least 26 weeks of 66 week period up to and including the date that the baby is due.
  2. Have earned on an average of at least £30.00 a week over any 13 weeks of the 66 week period.

Both SMP and MA are payable for a period of 39 weeks.

Additional Paternity Pay, is paid at the same rates as SMP which, from April 2011, is £128.73 a week (after the first 6 weeks of SMP) or 90% of your average weekly earnings, whichever is lower.

If your employer offers enhanced maternity pay to birth mothers, he or she will not be obliged to offer the same to parents taking Additional Paternity Leave.

If you wish to take Additional Paternity Leave outside the 39 week period that the birth mother is eligible to statutory pay, this leave will be unpaid.

Parental Leave

If you become a parent through a surrogacy agreement, you may have the right to take statutory Parental Leave from work in order to care for your child or make arrangements for their welfare.

You will be entitled to Parental Leave if:

-You have worked for your employer for at least one year

-You are named on the child’s birth certificate or have/ expect to have a parental order confirming your parental responsibility for the child

-Your child is under five years in age

-You comply with the relevant notice and evidential requirements for taking parental leave (see below)

Parental Leave amounts to 13 weeks leave for each child. Unless your employment contract specifies otherwise, you will not be able to take more than 4 weeks Parental Leave for each child in one year. You must take your parental leave in multiples of one week.

If your child is in receipt of Disability Living Allowance you will be entitled to 18 weeks parental leave and will be able to use this leave until your child is eighteen years old. You also do not have to take your leave in multiples of one week.

There are default provisions within the Regulations[2] regarding the notice requirements which you must comply with in order to take Parental Leave. You must give your employer at least 21 days notice before the date on which you wish to take Parental Leave. In this notice, you must specify the start and end dates of when you wish to take Parental Leave.

Your employer may postpone the leave which you wish to take, for a period of up to 6 months, if he/she considers that the operation of his/her business will be unduly disrupted if the employee took leave during the period identified in the notice. In these circumstances, your employer must give notice of this postponement in writing, within 7 days of you giving notice to them of your intention to take parental leave. Your employer must specify the reasons why the period of leave has been postponed in this notice.

However, if you are requesting parental leave which is to begin on the date on which the child is born, and you are the legal father of the child, your employer cannot postpone your leave. If you wish to take Parental Leave during the expected week of childbirth, you should again give notice at least 21 days before the beginning of the expected week of childbirth and specify the week when your child is due.

Right to request Flexible working

There is no absolute right to flexible working. However, there is a statutory right for certain carers of children, including parents who have children through a surrogacy arrangement, to request flexible working.

Flexible working can include working part time, working flexitime, home working, job sharing and compressing hours (when you agree to work your total number of agreed hours over a shorter period).

There is aFlexible Working Webguide on the Working Families’ website to help you decide what working pattern will be right for your family and how to request flexible working.

You will have the statutory right to request flexible working if:

-You are an employee who has worked for your employer for 26 weeks

-You have a child who is under the age of 17 (or a disabled child under 18 who gets Disability living allowance)

-You are the parent of the child (i.e. you have a parental order confirming your parental responsibility for the child) or you are the partner of a parent to the child

-You want to work flexibly in order to help care for the child

-You expect to have responsibility for the child’s upbringing

There is a standard form that you can get from the in order to request flexible working from your employer.

After your request, your employer must hold a meeting with you within 28 days, unless they are going to agree to exactly what you have asked for. If they agree to your request, they should confirm this in writing. At the meeting, you are allowed to be accompanied by a colleague or a trade union representative who works for your employer.

Following the meeting, your employer must send you a written decision within fourteen days. They can either agree to your request, offer you a compromise or refuse altogether. If they turn you down, they must give you reasons, also in writing. They can only refuse you for permitted business reasons (see below). They should show why these reasons apply, and they must explain the appeal process.

The permitted business reasons are:

-Burden of additional costs

-Detrimental effect on ability to meet customer demand

-Inability to reorganise work among existing staff

-Inability to recruit additional staff

-Detrimental impact on quality

-Detrimental impact on performance

-Insufficiency of work during the periods you propose to work

-Planned structural changes

You have fourteen days from getting the written reasons to appeal the decision. You should try to show why your employer’s reasons do not apply. Following your appeal, your employer should hold another meeting with you. You can get help and advice with your appeal form the working families’ helpline, and more advice about the procedure on the working families website at

In considering your request for flexible working, your employer must comply with the relevant equalities legislation and ensure that s(he) does not discriminate against you, directly or indirectly, on the grounds of sex.

1

[1] The Paternity and Adoption Leave Regulations 2002

[2] The Maternity and Parental Leave etc. Regulations 1999