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Surrogacy - rights for intended parents

Surrogacy is when another woman carries and gives birth to a baby for the intended parents. The women who gives birth to the child will be treated as the mother, however, parental responsibility can be transferred by either an adoption or parental order.

Key points

  • Parental order must be applied for to become the legal parents of the child - if the intended parents are genetically related to the baby.
  • Adoption Order must be applied for where intended parents are not genetically related, and they must use a registered adoption agency throughout the surrogacy process.
  • Shared Parental Leave - may be available, subject to meeting the eligibility conditions.
  • Antenatal appointments - employees who intend to apply for a parental order have the right to unpaid time off work to accompany the birth mother to 2 antenatal appointments.

There are two types of surrogacy:

  • Traditional or straight surrogacy - this method uses the eggs of the surrogate mother and the sperm of the intended father. The baby is biologically related to the intended father and the surrogate mother.
  • Gestational or host surrogacy - this method uses the egg of the intended mother and the sperm of the husband or donor sperm. A baby conceived by this method has no biological connection to the surrogate mother.

Surrogate mothers

Surrogates are the legal mother of any child they carry - even if they're not genetically related, until they sign a parental or adoption order following the birth of the child, this transfers their rights to the intended parents.

Pregnant employees have the right to 52 weeks maternity leave, and to return to their job after maternity leave. Whatever the birth mother does with the child in a surrogacy arrangement following the birth it has no impact on her right to maternity leave.

Intended parents

The intended parents can apply for a Parental Order 6 weeks after the child is born, and before the child is 6 months old.

Parental or adoption order

  • Intended parents must be genetically related to the child to be able to apply for a parental order.
  • Adoption using a registered adoption agency, will be necessary for intended parents to become the legal parents if neither are genetically related.

Adoption leave and pay is available to eligible employees who become the legal parents following an application for adoption or parental order. Intended parents will be entitled to 2 unpaid antenatal appointments to enable them to accompany the birth mother. Adoption leave can start the day of the birth or the day after. Employees must tell their employers at least 15 weeks before the baby is due and that they intend to take
adoption leave.

Statutory adoption pay - for the first six weeks it is paid at 90 per cent of the average weekly earnings. The following 33 weeks will be paid at the rate or 90 per cent of the average weekly earnings whichever is the lower. The rate from April 2015 is £139.58 per week. The standard rate for Statutory Adoption Pay is reviewed every April.

Paternity leave and pay is available for those parents who are genetically related to the child and who meet the qualifying conditions. Paternity leave is normally 1 or 2 weeks, and can be taken up to 56 days after the child is born. Paternity leave cannot start before the child is born.

The statutory paternity pay rate is £139.58 per week.

Shared parental leave and pay will also be available for eligible parents; Shared Parental Leave is designed to give parents more flexibility in how to share the care of their child in the first year following birth or adoption. Parents will be able to share a pot of leave, and can decide to be off work at the same time and/or take it in turns to have periods of leave to look after the child. Intended parents in a surrogacy arrangement may qualify providing they qualify for adoption leave and pay.

Parental Leave is available for eligible employees to take time off to look after a child's welfare, this leave is normally unpaid. The leave can start once the child is born or placed for adoption, or as soon as the employee has completed a year's service, whichever is later. Employees can take it at any time up to the child's 18th birthday.

Parental leave should be taken in blocks of a week or multiples of a week, and should not be taken as "odd" days off, unless the employer agrees otherwise or the child is disabled. Employees cannot take off more than four weeks during a year. A week is based on an employees working pattern.

Surrogacy overseas

If the surrogate gives birth abroad, parental orders can only be applied for if the intended parents are living in the UK. As different countries have different rules for surrogacy arrangements it can be complicated and may take several months to complete. A visa will be required for the child while visiting the country during the process. The child will also need to get a passport. The parental order will need to be applied for in the UK to transfer legal rights from the surrogate mother to the intended parents.

Adoption leave and pay for intended parents who qualify and intend to apply for adoption or parental order. Adoption leave can start the day the child's born or the day after when a surrogate is used.

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