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My partner and I are planning to have a child through a surrogacy arrangement. Do we have any rights to time off work?
Yes. As a result of changes to the law made in 2015, couples who are having a child through surrogacy who plan to apply for and would qualify for a parental order after the baby is born can take adoption leave and pay. Only one member of the couple (called the ‘primary adopter’) can take adoption leave, and he or she must be an employee. The other can take up to two weeks’ paternity leave, to be taken during the eight weeks following the birth, if he or she qualifies.
You can agree to share the adoption leave between you if you meet the other eligibility criteria for shared parental leave.
You also have the right to time off work before the birth to attend antenatal classes with the intended surrogate mother. You have the statutory right to time off work to attend the class, but your right to attend the class depends on the pregnant woman’s consent. You have the right to time off work if you are an employee or (after 12 weeks on the same job) an agency worker.
Same sex partners are entitled to the same leave and pay as heterosexual partners having a child through surrogacy.
Check your staff handbook for the exact details where you work. Better rights may have been negotiated, especially where a union is recognised. Unions have led the campaign to secure proper rights for surrogate parents, including bringing agenda-setting legal cases in the European Court of Justice.
The birth mother under a surrogacy arrangement qualifies for the full range of statutory maternity rights, including a right to 52 weeks’ maternity leave and 39 weeks’ maternity pay if she is an employee, whatever happens to the baby after the birth. These rights do not impact on the surrogate parents’ right to take adoption leave and pay.
Only the birth mother is protected from pregnancy discrimination, even if the surrogate mother begins to breastfeed straight after the birth.
The TUC has produced a guide, Time off and pay for parents having a child through surrogacy.