The reforms under the Children and Families Act 2014 followed a long campaign to end the injustice in which parents with new-born children through surrogacy fell between the cracks of the law, and were entitled to neither maternity/paternity leave nor adoption leave. If employers were not generous in giving discretionary leave, new parents through surrogacy faced the difficult choice of going back to work very quickly after their baby was born or giving up their jobs permanently. Section 122 of the Children and Families Act 2014 extended adoption leave to UK and international surrogacy situations and allowed eligible parents to claim the equivalent to maternity and paternity rights, so they were entitled to the same rights to employment protection as other new parents through birth or adoption.
Both different-sex and same-sex couples (and, soon, single parents) can benefit from adoption leave if they can show that they intend to apply for a parental order for their child (a post-birth order in the UK that reassigns parenthood from the surrogate (and her spouse)) to the intended parent/s.
Adoption leave can be split between both parents and starts from the date of your baby’s birth (or alternatively, the following day). One of you can take the main leave and you will be entitled to time off work, equivalent to maternity leave (up to a year off work and Statutory Adoption Pay). If you are a couple, the other parent will be entitled to paternity leave (up to two weeks leave and Statutory Paternity Pay). There is also the possibility of using the Shared Parental Leave rules to share the main adoption leave between you more evenly. Parents are also entitled to attend two antenatal appointments with their surrogate during the pregnancy, and she will still be entitled to claim her full maternity leave and pay following the birth.
Many employers now have surrogacy policies in place providing for adoption leave for any employee who has a child through surrogacy. You should notify your employer that you are expecting a baby at least 15 weeks in advance of your baby’s due date and talk through any surrogacy policies your employer may have in place (as these could be more generous than statutory benefits).
Three years on, we are about to see another update, with the right to adoption leave to be extended to single parents once they are become eligible to apply for parental orders later this year. We are pleased to celebrate 3 years of employment rights for UK surrogacy families and 10 years since the campaign for reform began.
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