Surrogacy – What Employers and Employees Need to Know

Surrogacy – What Employers and Employees Need to Know

Today marks the start of National Surrogacy Week, which runs from 1 to 7 August 2022. Surrogacy as a form of family building has grown in popularity over the last decade and is increasingly becoming an option for a significant number of parents-to-be each year. A growing number of celebrities have spoken about their own journey to parenthood though surrogacy, including Kim Kardashian, her sister Khloe, Robbie Williams and Amber Heard.

What is surrogacy?

• Surrogacy is when someone (the surrogate) carries and gives birth to a baby for an individual or a couple who are unable to carry the baby themselves (the intended parents). 

• Under the current law, the woman who gives birth to the child will be treated as the legal parent at birth until parenthood is transferred by either a parental or adoption order.

• An intended parent must apply to become the legal parent within 6 months of the child’s birth to get surrogacy rights, leave and pay.

Why use a surrogate?

There are many reasons why some people opt for surrogacy when starting or expanding their family, including medical/fertility issues or a history of pregnancy loss. It is also a popular option for same sex couples and can be used by individuals who are single and want to have a family. With advances in IVF technology, it can provide a way for parents-to-be to welcome their own biological child.

Surrogacy and the workplace

It is common for people involved in surrogacy to be impacted both physically and mentally. It is therefore crucial that both employers and employees are aware of these issues and how it may affect them in the workplace. Employees should be aware of their employment rights and it is recommended that employers consider implementing policies and procedures to create a supportive environment for employees going through assisted conception treatments, such as surrogacy.

This blog summarises some of the key employment rights and current ACAS guidance relating to surrogacy and workplace issues.

It is worth noting that, in June 2019, the Law Commissions of Scotland and England and Wales published a joint consultation paper seeking views on potential reform of surrogacy law, which included reference to related employment rights. Following that consultation, the Commissions’ Report setting out recommendations for reform is expected in autumn 2022 and will be put before the UK Government in due course. Further information can be found here: Scottish Law Commission.

What employment law rights do surrogates have?

• All pregnant employees have a statutory right to paid reasonable time off during working hours for the purpose of receiving antenatal care. A surrogate is no different, and is automatically entitled to this, regardless of hours worked or length of service.

• A surrogate is entitled to 52 weeks’ statutory maternity leave to recover from the birth. She may also be entitled to statutory maternity pay (39 weeks) or maternity allowance if she satisfies the eligibility criteria. Her employment rights are protected while she is on statutory maternity leave, meaning that she is entitled to receive pay rises, to accrue holiday and to return to her job after 52 weeks. The fact that her pregnancy is part of a surrogacy arrangement does not affect any of her maternity rights during that period. She may also be eligible for enhanced contractual maternity pay (depending on the arrangements with her employer).

• A surrogate will not be entitled to shared parental leave if the surrogacy arrangement is followed, given that she will not be taking time off to care for the child. 

What employment law rights do partners of surrogates have?

• Where a surrogate is married/in a civil partnership, her partner (unless they did not consent to the surrogacy arrangement) will be treated as the second parent of the child until and unless a parental or adoption order is granted.

• This means that the surrogate’s spouse or civil partner may be eligible for statutory paternity leave and statutory paternity pay (if they meet the eligibility criteria).

• Like the surrogate, they will not be entitled to shared parental leave if the surrogacy arrangement is followed, given that they will not be taking time off to care for the child.

What employment law rights do intended parents have?

• Where intended parents plan to apply for a parental or adoption order after the birth, they will be entitled to unpaid time off to accompany the surrogate mother to up to two antenatal appointments (with each appointment being capped at 6.5 hours).  They must be an employee to be entitled to time off. If not, they will need to take annual leave or request unpaid time off.

• As things stand, where the child is legally adopted, statutory adoption leave (up to 52 weeks) and pay (39 weeks) is likely to be available for an intended parent, provided the statutory qualifying conditions are met. Employers may offer enhanced adoption leave and pay schemes. If an individual is not eligible for paid leave, they can ask their employer if they can take unpaid leave instead.

• Adoption leave in surrogacy arrangements can start from the day of the child’s birth or the day after the birth.

• Employees continue to accrue annual leave as normal during adoption leave, even if this means carrying it forward into a new holiday year.

• “Keeping in touch” days – where an employee can choose to work up to 10 days during their statutory leave without it affecting their statutory leave or statutory pay – are open to those taking adoption leave as well as those taking maternity leave or shared parental leave.

• While only one intended parent can get adoption leave and pay, the other may be able to take paternity leave (and receive paternity pay).  Both intended parents may also be able to take shared parental leave and pay, provided they meet the eligibility criteria and satisfy the conditions attached to such leave.

• Intended parent employees (who have worked for an employer for at least one year and are eligible) may also wish to take parental leave, which is an additional form of (usually unpaid) leave which entitles them to take up to 18 weeks leave (per parent, per child) up to the child’s 18^th birthday. This is subject to a maximum of up to 4 weeks’ leave in any one year (unless the employer agrees otherwise).

• Annual leave may also be taken to give additional paid time off.

• Employees may wish to change their working arrangements or hours when they return to work, via a flexible working request.

Tips for employees and employers:

• Employees who are involved in assisted conception treatments such as surrogacy should check if their employer offers any enhanced contractual rights to time off and pay for parents in surrogacy arrangements. They should also check if there are any additional wellbeing supports in place for them, such as employee assistance programmes. 

• Having a written policy on fertility treatment and issues which can arise gives an employer the opportunity to demonstrate its understanding of fertility in the workplace, while maintaining employee expectations on the support that is available. It would also remove uncertainty staff may have about how the employer will address such issues in work and what employees should do to access support.

Please contact a member of the BTO employment team if you would like to discuss any aspect of this blog.

Lesley Grant, Associate, BTO Solicitors LLP: ljg@bto.co.uk / 0141 221 8012 / Connect with Lesley on LinkedIn