Women who give birth to premature babies may be entitled to the extended one-year's maternity leave which is not due to take effect until 6 April 2003.
Men could also be entitled to paternity leave from 8 December this year under the Paternity and Adoption Leave Regulations 2002, giving fathers of babies due on or after 6 April 2003 the right to have two weeks' paid paternity leave.
Danielle Kingdon, partner at law firm Osborne Clarke, said the Employment Act, which extends maternity provision and gives fathers paternity leave rights, implies that only parents of children born after 6 April would qualify. However, the rules could apply now where babies arrive sooner than expected.
The Maternity and Parental Leave (Amendment) Regulations 2002, which came into force on 24 November 2002, allow mothers of babies due on or after 6 April 2003, and who have sufficient service, to receive an extra 12 weeks' maternity leave - bringing the total period of absence allowed up to one year.
Kingdon said that what was not made clear when the legislation was publicised is that mothers would be entitled to the new maternity rights if the baby was born early.
"If a baby due on 6 April 2003, were born on 24 November 2002 and did not survive - which it might not as it would only be 21 weeks gestation - the mother would still be entitled to one year's leave, as long as the baby was born alive; even if it died shortly after birth," she said.
"The father would be also be entitled to [paternity] benefits."
However, Kingdon pointed out that a mother whose baby was stillborn at less than 24 weeks gestation would not be entitled to these benefits. Although where a baby was stillborn after 24 weeks gestation, the mother would be entitled to the benefits as long as the expected week of childbirth was on or after 6 April next year.