Evolving employment rights and surrogacy

Evolving employment rights and surrogacy

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Author: Michael Briggs

Employment rights for parents in a surrogacy arrangement are currently limited - it is the birth mother who is regarded as the child's mother for the purpose of taking maternity leave and not the intended parent. Changes are however afoot from April.

Background

Surrogacy is increasingly becoming commonplace as a way for couples to become parents, with a surrogate mother carrying their child. The couple who are to become parents in this situation are commonly known as 'intended' or 'commissioning' parents. The surrogate will however be the legal mother of the child unless or until parenthood is formally transferred to the intended mother through a parental order or an adoption order following the birth of the child (and transferred to the intended father at the same time). This is because, in law, the woman who gives birth is always treated as the 'mother'.

In respect of maternity leave, it is the birth mother who is entitled to take full maternity leave, not the intended mother in the surrogacy arrangement. This is regardless of the fact that the surrogate may not continue to have any contact with the child after birth and will certainly not be the primary carer. The same leave position applies to mothers who give their child up for adoption following birth; the fact that a birth mother does not care for the child once it is born has no impact on her right to maternity leave.

This position has been challenged on both a national and European level. As a result, the European Court of Justice (ECJ) was required to consider whether an intended mother under a surrogacy arrangement must be entitled to a period of maternity leave under the Pregnant Workers Directive so as to allow her to bond with her baby, establish breastfeeding and maintain and develop a family life. Whilst two Advocate Generals had differing views, the ECJ in two separate cases, held that intended mothers do not have a right to maternity leave. In CD v ST, the ECJ stated that the purpose of maternity leave is to protect the health of the mother of the child 'in the especially vulnerable situation arising from her pregnancy' and that although the purpose of maternity leave is intended to ensure that the special relationship between a woman and her child is protected, the objective concerns only the period after 'pregnancy and childbirth'.

As a result, the current position is that the intended mother is left in a situation where she is not entitled to the benefit of maternity or adoption leave. The only option available to the intended mother is unpaid parental leave (provided she has the necessary qualifying service) or some sort of flexible working arrangement (if accepted). Any further leave arrangements will be dependant upon her own contractual terms or her employer's discretion.

Changes afoot

From 5 April 2015 intended parents in a surrogacy arrangement will become entitled to adoption leave and pay for children due on or after 5 April 2015. The new right for an expectant father, spouse, civil partner or partner to have unpaid time off to attend antenatal appointments will also apply to intended parents in a surrogacy arrangement which means they can attend up to two antenatal appointments with the surrogate.

In addition, statutory adoption leave will also become a 'day 1 right' for employees when the qualifying period for employment is removed which therefore brings it into line with statutory maternity leave. Statutory adoption pay will also be enhanced to 90% of the adopter's salary for the first 6 weeks of leave, again bringing it into line with statutory maternity pay.

Also, from 5 April 2015, eligible employees will be entitled to a maximum of 52 weeks' leave and 39 weeks' pay upon the birth or adoption of a child, which can be shared between the parents. Therefore, not only will adoptive parents be able to take advantage of these new leave rules, but the intended parents in a surrogacy arrangement will also be able to do so.

Whilst the intended mother still does not have the right to 'maternity' leave and pay as such she will have the equivalent benefit of adoption leave and pay.

Whilst this article has referred to the intended mother throughout in terms of maternity or adoption leave, the extended rights will be available to same-sex couples, who can both be included on the child's birth certificate and are referred to as the first and second parents rather than mother and father.

Disclaimer

This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.

About the Author

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Michael Briggs

Senior Associate

0370 086 5066

Michael is an experienced employment lawyer who provides practical, commercial and results-driven advice to a wide range of clients in respect of disciplinary matters, redundancy & reorganisation, absence and performance issues, employment contracts & handbooks and executive appointment & exits. Michael also defends employment tribunal claims.

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