6. Surrogacy
If someone uses a surrogate to have a baby, they can apply for a parental order. They or their partner must have a genetic link to the child.
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
From 6 April 2026, employees are eligible for paternity leave from the first day of employment. Previously employees had to work for their employer for 26 weeks before they were eligible.
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 taking statutory paternity pay must:
- be eligible for a parental order, intend to apply for one and expect it to be granted - or already have one
- be married to, the civil partner or partner of the other intended parent - this includes same-sex partners
- have the main responsibility for the care of the child together with the other intended parent
They must also:
- have the legal status of employee or work for the employer through an agency
- continue to be employed by the same employer until the birth of the child
- earn on average at least £129 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
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
Parents who are newly eligible for paternity leave with a due date between 5 April and 25 July 2026
From 6 April 2026, employees are eligible for paternity leave from the first day of employment. Previously, employees had to work for their employer for 26 weeks before they were eligible.
On 18 February 2026, a temporary reduced notice period was introduced. Employees can give 28 days' notice, instead of 15 weeks. This is only for parents who became eligible because of the law change. It allows parents to take paternity leave from the first day of the new law.
The temporary 28-day notice period applies if:
- the employee became eligible for paternity leave on 6 April 2026 because of the change in the law
- the expected due date is between 5 April and 25 July 2026
The usual 15-week notice period applies if:
- the due date is 26 July 2026 or later
- someone was already eligible for paternity leave before 6 April 2026
Example of when newly eligible parents should give notice
Kit and Bobby are expecting a baby on 23 April 2026. Bobby started working for their employer in January 2026. Bobby became eligible for paternity leave from 6 April 2026. This is because it became a 'day one right'. From 18 February 2026, Bobby could give 28 days' notice to take paternity leave.
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 time
There might be a good reason why an employee cannot give their employer information in 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.