On 29 June 2015, ACAS published two new guidance documents which explain leave rights in relation to pregnancy.
One guide explained employees' rights when involved in a surrogate pregnancy, and a second guide clarified the rights of employees to attendance at antenatal appointments.
ACAS were concerned that many employers were not aware of the leave rights which were introduced in October 2014 for adopters, surrogates and partners of pregnant women. The new guidance explains all leave provisions so that employees and employers can clearly see who qualifies for leave and pay.
The guidance clarifies the definition of surrogacy. Stewart Gee (ACAS head of information and guidance) explains that, "a surrogate is a woman who carries and gives birth to a baby for intended parents. The women who give birth to the child are the mother but parental responsibility can be transferred either by adoption or parental order."
The guide also explains the two types of surrogacy as being:
- Traditional or straight surrogacy - the eggs of the surrogate mother and the sperm of the intended father are used. The baby is biologically related to the intended father and surrogate mother.
- Gestational or host surrogacy - the egg of the intended mother and the sperm of the intended father or a sperm donor are used. The baby will have no biological connection to the surrogate mother.
The legal parents
If the intended parents are genetically related to the child, they will need to apply for a Parental Order to become the legal parents of the child. If the intended parents are not genetically related, they would need to use a registered adoption agency to apply for an Adoption Order.
Adoption leave and pay will be available to eligible employees who become the legal parents, whether it is via a Parental Order or an Adoption Order. As with maternity leave, the parents of an adopted child will need to tell their employer that they intend to take adoption leave at least 15 weeks before the baby is due.
Statutory adoption pay consists of 6 weeks' pay at 90% of average weekly earnings, followed by 33 weeks of either 90% of average weekly earnings or £139.58 (this amount is reviewed by the Government every April), whichever is the lower.
Paternity leave and pay will also be available and will be the same as that of a biological father, i.e. 1 or 2 weeks, taken up to 56 days after the child is born, paid at £139.58.
For an overseas adoption from a surrogate, separate rules apply, such as visa requirements for the child.
The surrogate mother
The surrogate will be the legal mother of the child (even if not genetically related) and will be entitled to take all relevant maternity leave and pay, including two weeks of compulsory leave and 50 further weeks of optional leave.
Shared parental leave
As with any child born after April 2015, the parents of a child born by surrogate will be entitled to shared parental leave and pay, subject to them meeting the eligibility criteria.
ACAS has reported a rising number of incoming queries regarding time off for antenatal appointments. As a result, the ACAS guidance seeks to clarify the position of employer and employee and sets out the entitlement to leave (and pay) for antenatal appointments as follows:
- Pregnant employees are entitled to reasonable paid time off for antenatal care. For a first baby, women can expect to have up to 10 antenatal appointments and will need to show documentation confirming appointments to their employer after their first appointment. Any further pregnancies may require up to 7 appointments.
- Fathers, partners and civil partners of pregnant women are entitled to unpaid time off to attend two antenatal appointments.
- Surrogate parents could also be entitled to attend two unpaid antenatal appointments if they expect to satisfy the conditions, and intend to apply, for a Parental Order for the child.
- Employees who are adopting a child are entitled to take paid time off too. The main adopter is allowed to take paid time off for up to 5 adoption appointments and their partner is entitled to take unpaid time off for up to 2 appointments.
- Time off for each appointment is capped at six and a half hours.
Time off for the pregnant employee is not restricted to medical appointments and could include other antenatal care made on the advice of a registered medical practitioner, such as relaxation classes and parenting classes. The employee should show their employer an appointment card which shows that such an appointment has been made.
Although there is no right for partners of pregnant women to receive paid leave for antenatal appointments, the employer may wish to provide for a policy which allows expectant parents to swap shifts or make up time, alternatively, they may be permitted to take annual leave to attend the appointments with the pregnant woman.