Weekly dilemma: Statutory leave entitlements where a surrogate mother is used

We are a small bakery and a member of staff is using a surrogate to have a child. Can she go on maternity leave, or some other type of statutory leave?

Employees who are having a child through a surrogate are not eligible for statutory maternity pay or leave, which are available only to pregnant employees. However, the surrogate mother is entitled to take maternity leave and receive statutory maternity pay, provided she meets the normal eligibility criteria.

Both the employee and her partner are eligible for up to 13 weeks’ unpaid parental leave, provided they have been continuously employed for at least one year and they are responsible for the child. Being “responsible” for a child includes a surrogacy arrangement where the employee expects to secure legal parental responsibility. The parental leave must be taken by the fifth anniversary of the adoption or by the child’s 18th birthday, whichever comes first. If the child has been awarded disability living allowance, the amount of leave is 18 weeks. The leave must be taken in whole weeks, subject to a maximum of four weeks per year, unless the child has been awarded disability living allowance.

There are other types of leave potentially available to the employee and her partner in this situation. However, this depends on the employee adopting the child through an adoption agency. In this case, the employee would potentially qualify for statutory adoption leave and statutory adoption pay.

In order to qualify for statutory adoption pay, the employee must show that she has 26 weeks’ continuous employment ending in the week in which she was notified by the adoption agency of having been matched with the child.

Subject to satisfying other qualifying criteria, she is entitled to 26 weeks of ordinary adoption leave and a further 26 weeks’ additional adoption leave, and up to 39 weeks of statutory adoption pay.

Provided that the child is adopted, the employee’s partner or spouse is also potentially eligible for ordinary paternity leave, provided that he has 26 weeks’ continuous service ending in the week in which the adopter was notified by the adoption agency of having been matched with the child, and provided that he has responsibility for the child’s upbringing. In practice, whether or not a partner or spouse has this responsibility is likely to be interpreted very broadly. Ordinary paternity leave would need to be taken within 56 days of the child’s placement for adoption and would be for up to two consecutive, whole weeks.

The employee’s spouse or partner may also, potentially, share the employee’s adoption leave by taking additional paternity leave when she returns from statutory adoption leave. This must be taken in multiples of complete weeks and can last between two and 26 weeks. The earliest that additional paternity leave can commence is 20 weeks after the date of placement of the child for adoption. It must end no later than 12 months after that date.

So, if the employee adopts the surrogate’s child through an adoption agency, she could take 26 weeks of ordinary adoption leave, following which she can return to work and allow her partner to take the remaining 26 weeks as additional paternity leave. However, additional statutory paternity pay would only be paid for a maximum 13 of those weeks, reflecting the 39 week paid statutory adoption pay period.

Claire Taylor-Evans, associate, Boyes Turner LLP

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