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Rights for Surrogate Parents

Surrogacy is when another woman carries and gives birth to a baby for the couple who want to have a child.  One or both of the couple may provide the genetic material for the child. You should seek legal advice before entering into a surrogacy arrangement.

Rights of the surrogate mother

A surrogate mother (whether or not she is genetically related to the child) is considered the child’s legal mother until and unless that status is altered by an order of the court (a “Parental Order”).  A surrogate mother will be entitled to statutory maternity leave and pay in the same way as other employees.

Where the surrogate mother is married/ in a civil partnership, her husband/civil partner (unless s/he did not consent to the surrogacy arrangement) will be treated as the father of the child until and unless a Parental Order is granted.

If the surrogate mother is not married/in a civil partnership and the intended father is the biological father, he will acquire parental responsibility if he is registered on the birth certificate.  He may be eligible for paternity leave and Statutory Paternity Pay.

Applying for a Parental Order

Where a couple have entered into a surrogacy arrangement with the surrogate mother they may apply for a Parental Order which, if granted, transfers the legal parental responsibility on to those two people.   A single person can not apply for a Parental Order in a surrogacy situation.  In order for a Parental Order to be granted, a number of conditions must be satisfied including:

  • the surrogate mother is not one of the applicants
  • one of the applicants has provided genetic material
  • the applicants are partners, and the child’s home is with the applicants.

More information on applying for a Parental Order in a surrogacy arrangement is available on gov.uk.

If neither of the couple has provided genetic material, they may be able to adopt the child instead.

Rights for parents with a Parental Order

If you are an employee and either the father of the expected child or a parent intending to apply for a Parental Order then you have a right to take (unpaid) time off to accompany the pregnant surrogate mother to two antenatal appointments.

If you are eligible for and want to take Statutory Adoption Leave  in a surrogacy arrangement, you need to tell your employer of your intention by the end of the 15th week before the child is due.  You will need to let them know the date your child is due and that you will be applying for a Parental Order.  You may also be eligible for Statutory Adoption Pay. Only one parent will be entitled to Statutory Adoption Leave, the other may be eligible for Statutory Paternity Leave (Adoption).

If you and your partner meet the eligibility criteria, you may be able to share your leave and pay by opting into Shared Parental Leave and Pay

If you are not eligible for adoption leave or paternity leave (adoption) but have worked for your employer for at least one year, and have, or expect to have parental responsibility for a child, you may be able to take (unpaid) parental leave instead.

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