If someone is using a surrogate parent to have a baby and they or their partner have a genetic link to the child, they can apply for a 'parental order'.
A parental order transfers the parental rights from the surrogate so they become the 'intended parents' by law.
If they're eligible, one of the intended parents can take adoption leave and one can take statutory paternity leave. It is up to the parents to decide which each of them uses.
They cannot change or swap which one they're taking once they have informed their employers.
Eligibility for statutory paternity leave for surrogacy
To take statutory paternity leave, the intended parent must:
- intend to apply for a parental order in the 6 months after the baby's birth and expect it to be granted
- meet the eligibility criteria for statutory paternity leave
If the employer asks for proof
The employer might ask for a 'statutory declaration'.
This is a written statement provided by a solicitor. It confirms the intended parent has been truthful about intending to apply for, and be successful in getting, a parental order.
Eligibility for statutory paternity pay for surrogacy
The intended parents must choose who will take adoption pay and who will take statutory paternity pay. They cannot change or swap which one they're taking once they've told their employers.
The intended parent who has chosen to take statutory paternity pay must:
- be eligible for and intend to apply for a parental order and expect it to be granted, or have one already
- be married to, the civil partner or partner, including same-sex partners, of the other intended parent
- have the main responsibility for the care of the child together with the other intended parent
They must also:
- be legally classed as an employee or work for the employer through an agency
- have worked continuously for the same employer for at least 26 weeks up to any day in the 'qualifying week'
- continue to be employed by the same employer until the birth of the child
- earn on average at least £123 a week over the 8-week period ending with any day in the qualifying week
To work out the qualifying week, use a calendar to count back 15 weeks from the week the baby is expected to be born.
Giving notice to take paternity leave
What information an employee must give their employer and when depends on when their baby is due. This is because the law on statutory paternity leave is changing on 6 April 2024.
If the baby is due on or before 6 April 2024
The intended parent who's taking paternity leave must tell their employer:
- the expected date of birth
- how much paternity leave they want to take
- when they want to start statutory paternity leave
They must give this information to their employer no later than the end of the 'qualifying week'.
To work out the qualifying week, use a calendar to count back 15 weeks from the week the baby is due. The qualifying week starts on a Sunday and ends on a Saturday.
If the employer asks for it, the employee must also tell them in writing that:
- they have, or expect to have, responsibility for bringing up the child
- they are married to, the civil partner or partner of the other intended parent
- the purpose of the leave is to care for the child or support the other intended parent
- they and the other intended parent are parental order parents of the child
They must give this to their employer within 14 days of when they ask for it.
They can do this in either:
- a letter or email
- the form statutory paternity pay and leave: becoming an adoptive or parental order parent (SC4) on GOV.UK
If the baby is due on or after 7 April 2024
The intended parent who's taking paternity leave must tell their employer the expected date of birth.
They must also tell their employer in writing that:
- they have, or expect to have, responsibility for bringing up the child
- they are married to, the civil partner or partner of the other intended parent
- they and the other intended parent are parental order parents of the child
They must give this information to their employer no later than the end of the 'qualifying week'.
To work out the qualifying week, use a calendar to count back 15 weeks from the week the baby is due. The qualifying week starts on a Sunday and ends on a Saturday.
To give their employer information in writing, an employee can use either:
- a letter or email
- the form statutory paternity pay and leave: becoming an adoptive or parental order parent (SC4) on GOV.UK
Giving the employer the dates of paternity leave
For each period of leave the employee wants to take, they must give their employer:
- the date they want the period of leave to start and how long it will last
- confirmation in writing that the purpose of the leave is to care for the child or the child's other intended parent, or both
They must give this to their employer at least 28 days before they want their paternity leave to start.
When the baby is born
An employee must tell their employer the actual date of birth when the child is born. They must do this as soon as possible after the birth.
If an employee cannot give information in the required time
There might be a good reason why an employee cannot give their employer information within the required time. In this case, the employee must provide the information as soon as possible.
Contact the Acas helpline
If you have any questions about paternity leave and pay for surrogacy, contact the Acas helpline.