Proposed Surrogacy Reform and impact on Employment Law in the UK – THE HIGHLIGHTS

This morning the law commissions reported on their recommended Law Reform. Our family team reported on the highlights here

The commissions make some consequential recommendations for reform of employment law across the UK. See below for the employment highlights:

The Government now has 6 months to produce an interim response and 12 months to produce a full response. Thereafter, the draft Bill will be placed before Parliament for Debate, should the Government decide to take it forward.

Employment Highlights

  • One of the intended parents should have the right to receive a benefit equivalent to Maternity Allowance where they fulfil the criteria for that benefit.
  • The right of intended parents to take time off work to attend ante-natal appointments and to begin their statutory leave should be aligned with that for adoptive parents – that is:

(1)  the right for a sole intended parent or one of two joint intended parents to paid time off work on five occasions, of up to 6.5 hours on each occasion, and

(2)  the right for the other joint intended parent to unpaid time off work on two occasions for up to 6.5 hours on each occasion, with the purpose of the time off work being to accompany the surrogate to ante-natal appointments; and

(3)  the right to begin statutory leave up to 14 days before the expected date of birth of the child born as a result of the surrogacy arrangement.

  • References to intended parents in employment rights and other relevant legislation should be amended, in order to include intended parents who will gain legal parental status via the new pathway, rather than by way of a parental order.

Meantime the law remains as is:

  • Under the current law, the woman who gives birth to the child will be treated as the legal mother at birth until parenthood is transferred by either a parental or adoption order.
  • The woman who carries the child (the surrogate) is entitled to 52 weeks’ maternity leave and to return to her job afterwards. The fact that her pregnancy is part of a surrogacy arrangement does not affect any of her maternity rights during that period.
  • Where intended parents plan to apply for a parental or adoption order after the birth, adoption leave and pay may be available provided the statutory qualifying conditions are met. The same applies to paternity, parental and shared parental leave and pay.

If you have any questions about surrogacy and employment law, please get in touch with BTO’s specialist Employment Team.

This update contains general information only and does not constitute legal or other professional advice. 

Katie Hendry, Solicitor: / 0141 221 8012 / Connect with Katie