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
If the employer asks for proof of surrogacy, the intended parent can get a 'statutory declaration'.
This is a legal statement provided by a solicitor. It confirms the intended parent's intention to apply for, and be successful in getting, a parental order is truthful.
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
The intended parent who's taking paternity leave must tell their employer no later than 15 weeks before their baby is expected to be born.
In the notice they must give the dates for:
- the expected birth
- when they want to start statutory paternity leave and pay
They must give the employer the actual date of birth once the child is born.
If the employer requests it, the employee must give a written and signed declaration that they:
- meet the conditions for paternity leave and pay
- have not claimed adoption leave or pay
The employee can use the form statutory paternity pay and leave: becoming an adoptive or parental order parent (SC4) on GOV.UK.
Contact the Acas helpline
If you have any questions about paternity leave and pay for surrogacy, contact the Acas helpline.