The BBC recently reported that the number of parents having a baby by a surrogate in England and Wales has almost quadrupled in the last 10 years.
With this in mind, knowing your rights both in relation to surrogacy law and your employment rights following the birth of a child born through surrogacy is more topical than ever.
What is surrogacy?
Surrogacy is an arrangement in which a woman carries and delivers a child for another person or couple. The woman birthing the child is called the ‘surrogate mother’. The parent or parents for whom the child is intended are called the commissioning, intended, or social parents.
Under English and Welsh law, the surrogate will be the child’s legal parent at birth. The intended parents must therefore apply to become the legal parents within 6 months of the child’s birth to get surrogacy rights, leave, and pay. This can be done by applying for a parental order which transfers the legal parentage from the surrogate (and her husband if she is married) to the intended parents.
There are a number of criteria that need to be satisfied in order for a parental order to be made. Two of the most significant are that one of the intended parents needs to have a genetic link to the child and one of the intended parents should be domiciled in England and Wales.
Surrogacy and employment rights
Individuals who have had a child through surrogacy are entitled to the same rights as parents who have adopted a child: time off (statutory adoption leave) and statutory adoption pay. This is the legal minimum.
At a time where flexible working is at the top of the agenda during Covid, employers are needing to embrace family friendly policies to retain or attract the best talent. Many employers are adopting specific surrogacy / adoption leave policies which include enhanced pay, paid time off for pregnancy-related appointments, and / or a flexible return to work plan. A tailored policy not only helps to support employees and encourage them to return to work at their own pace but will also provide guidance for managers who might not be clear about what their legal obligations are.
Eligibility for adoption leave and pay
Only one partner will be able to benefit from statutory adoption leave and pay for a child born via surrogate. Paternity leave or shared parental leave may therefore be alternatives worth considering. In addition to this, employees are required to give their employer notice of the surrogacy no later than 15 weeks before the baby is due, informing them of which week the child is expected to be born in and when the period of leave will start. If requested, proof of the surrogacy may also be required by the employer, relating to the parental order.
Return to work rights and unfair dismissal
Intended parents who have taken adoption leave of up to 26 weeks have a right to return to the same role. Employers are required to offer them a role which is suitable and appropriate unless there is a good reason they cannot offer this.
Employers need to be alert to the risk of claims for unfair or constructive dismissal claims if an employee is dismissed or demoted following their return from adoption leave, and should consider all suitable alternatives prior to making employees redundant.
An employee has the right not to be subjected to any detriment by their employer for a reason related to adoption leave, and dismissal will be considered to be automatically unfair where the reason (or principle) reason is their adoption leave.
How we can help
The legal issues surrounding surrogacy can be complicated and it is crucial that intended parents start their surrogacy journey with their eyes wide open by taking advice as early as possible to avoid potential issues, whether from an employment, immigration, or family law perspective.
Issues at work
Our Employment law team is experienced in:
- reviewing your workplace policies and advising on shared parental, adoption, paternity, surrogacy and maternity rights;
- drafting notices of surrogacy and corresponding with employers, either during adoption leave or following a return to work;
- discussing flexible working arrangements and / or return to work options.
The surrogacy process and parental orders
Our Forming Families Team is able to assist with the following:
- discussions around surrogacy in England and Wales;
- understanding legal parentage following a surrogacy arrangement;
- advice on practical issues to be aware of in different jurisdictions;
- advising on immigration and nationality issues;
- helping with British citizenship applications for children born via surrogate;
- applying for a British passport for children born via surrogate;
- advising on the UK visa process – including appealing denied visa applications.
We are lucky to have specialist lawyers who have been commended for their expertise in the most recent publication of the Legal 500. We are available for a consultation in each of these areas, or collectively, and will offer you a full service, tailored to your individual needs.
If you have been affected by any of the issues outlined in this article, please contact
Victoria Maxwell Associate Solicitor or Marianne Johnson Trainee Solicitor in the Family team on 020 7091 2707 or at vmaxwell@bishopandsewell.co.uk / mjohnson@bishopandsewell.co.uk
Rhian Radia Partner and Head of Employment on 020 7079 2434 or at rradia@bishopandsewell.co.uk
Karma Hickman Associate Solicitor in our Immigration team on 020 7091 2879 or via email at mkhickman@bishopandsewell.co.uk
The above is accurate as at 10 January 2022. The information above may be subject to change during these ever-changing times.
The content of this note should not be considered legal advice and each matter should be considered on a case-by-case basis.
