Time off for surrogacy

One of your employees has announced that they are having a baby through surrogacy arrangements.

You will be delighted for the employee, but may wonder what rights they have in terms of leave and pay.

Maternity leave and pay

If your employee gives birth, she is entitled to up to 52 weeks of maternity leave as long as she has provided the required amount of notice. She has this right irrespective of whether she transfers parental responsibility for the child to others and their length of service with you.

She will also be entitled up to 39 weeks of Statutory Maternity Pay (SMP) as long as she meets all the qualifying conditions relating to length of service (she must have worked for you continuously for a minimum of 26 weeks by the 15th week before the expected week of the child’s birth), notice (she must provide at least 28 days’ notice before she intends SMP to start) and she must have provided you with evidence that she is pregnant.

She will also have a right to return to the same job on the same terms (if she returns within 26 weeks). If she returns between 26 and 52 weeks, they have the right to their previous job unless this is not reasonably practicable. If this is the case, she must be offered a suitable similar job, which must have the same or equivalent terms and conditions.

The intended mother will not be entitled to maternity leave or SMP.

Ante natal appointments

Pregnant employees (including a surrogate) have the right to a reasonable amount of time off to attend antenatal care appointments made on the advice of a registered medical practitioner. Employees have the right to be paid their normal hourly rate for the entire duration of the time off necessary to attend the antenatal appointment.

The intended parents of the child have the right to two unpaid antenatal appointments so they can accompany the birth mother.

Adoption leave and pay

One of the intended parents will be the primary adopter and may qualify for Statutory Adoption Leave and receive Statutory Adoption Pay. The other person involved will be the secondary adopter and may be able to take paternity leave and receive Statutory Paternity Pay.

Paternity leave and pay

The spouse, civil partner or partner of the person giving birth or the spouse, civil partner or partner the primary adopter will have the right to take paternity leave, which may be one or two weeks, if they fulfil the eligibility requirements.

Some of eligibility conditions include:

  • they must be an employee
  • have worked for you for a minimum of 26 continuous weeks by the end of the 15th week before the week of the due date or have continuously worked for you for a minimum of 26 weeks ending with the week in which the child’s adopter finds out that they have been matched with a child
  • must have or is expected to have main responsibility for the child.

An employee who is taking paternity leave may be entitled to Statutory Paternity Pay so long as they meet the conditions.

Other possible options for the intended parents include shared parental leave and parental leave.

Remember…

An employer may choose to provide more generous benefits than the minimum required in law. The statutory weekly rates of pay for maternity, paternity, shared parental and adoption leave are £145.18. If you do provide enhanced pay, this should be clearly stated in the employee’s Contract of Employment, Employee Handbook or anywhere else that contains your family leave policies.

If you would like to explore this matter further, do not hesitate to get in touch with your Ellis Whittam Employment Law Adviser who can guide you.

Director of Legal Services

James Tamm

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