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Surrogacy - rights for surrogate mothers and 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.

Contents

Understanding surrogacy

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.

The rights of a surrogate mother

The surrogate mother is the legal mother of any child they carry (even if they are not genetically related) until they sign a parental or adoption order following the birth, which transfers their rights to the intended parent(s).

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.

Becoming the child's legal parent(s)

Parental orders to become the legal parent(s) of the child can be sought 6 weeks after the child is born, and before they are 6 months old. To be able to apply for a parental order, at least one intended parent must be genetically related to the child.

If they are not genetically related to the child, intended parents will need to use a registered adoption agency and get an adoption order.

Adoption leave and pay

Adoption leave and pay could be available for parents who intend to apply for an adoption or parental order and meet the other qualifying conditions.

When there are two legal parents, only one is allowed to take adoption leave and pay. The other may be able to take Paternity leave.

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 that they intend to take adoption leave.

For more information, including the qualifying conditions, go to Adoption leave and pay.

Paternity leave and pay

Paternity leave and pay could be available for parents who intend to apply for an adoption or parental order and meet the other 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. A parent cannot take adoption leave and paternity leave.

For more information, including the qualifying conditions, go to Paternity leave and pay.

Shared parental leave and pay

Shared Parental Leave can give parents more flexibility in how to share the care of their child in the first year following birth or adoption. Parents may be able to share a pot of leave, and 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.

For more information, including the qualifying conditions, go to Shared parental leave and pay.

Parental leave

Parental leave entitles eligible employees to take up to 18 weeks leave to take care of their child. It can be taken at any time from the child's birth up to their 18th birthday. This leave is normally unpaid.

It 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.

For more information, including the qualifying conditions, go to Parental Leave.

Antenatal appointments

Employees who intend to apply for a parental order are entitled to take unpaid time off to accompany the surrogate mother to two antenatal appointments.

Additional considerations relating to surrogacy overseas

If the surrogate mother 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.

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