Intended Parents (IP’s) may wonder about their rights to take time off following the birth of their child. Hopefully your employer will have a staff policy mentioning surrogacy directly or it may well be mentioned under a company’s adoption policy. For those employees, they may be provided enhanced leave or pay provisions under that policy, but certainly there should be clear guidance on what is available to them.
For those without a policy, statutory adoption leave and or pay will apply. To be eligible for surrogacy / adoption leave, you must be an employee, have given the correct notice, and give proof of the surrogacy. Notice must be provided 15 weeks before the expected week of the birth. This may be requested in writing and your employer may ask for a statutory declaration that you will be applying for a parental order following the birth of your baby.
To be eligible for adoption / surrogacy pay, you must have been continuously employed by your employer for 26 weeks by the 15th week before your baby is due. You must earn on average at least £120 per week before tax, give the correct notice and provide proof of the surrogacy. You must be applying for a parental order (to become the child’s legal parents) and expect the order to be granted because you fit the criteria. If you qualify for adoption leave, you can take up to 26 weeks’ ordinary adoption leave, followed immediately by up to 26 weeks’ additional adoption leave. You may also be entitled to up to 39 weeks Statutory Adoption Pay (SAP) if you meet the qualifying conditions.
Who receives these benefits?
If you are genetically linked to the child (which one of the parents must be) then you can choose to get paternity leave and pay instead. You will not be able to claim both.
If you are not eligible then you employer must give you an SAP1 Form explaining why you cannot claim this.
Can you not just take maternity or paternity leave?
Sadly, in the UK it is only the surrogate mother that is entitled to this employment benefits not the intended parents.
Post birth – are we entitled to parental leave?
If you have applied for a parental order as intended parents, you have the same rights and responsibilities and as such you are entitled to parental leave from your employer. Here you need to give 21 days’ notice. This is usually unpaid but do check your staff handbook and contract.
Whilst you are on leave, your employment rights are protected in relation to pay rises, accrued holiday, and your return to work. By raising any questions with your human resources department, applying for leave or parental rights or later perhaps making an application for flexible working you cannot be treated less favourably or discriminated against for making these requests. Your rights are protected as an employee.
This can be a confusing time, and a specialist solicitor will be able to confirm what employment rights you have.