This information sheet sets out your rights to time off and pay if you are intending to become parents through a surrogacy arrangement.

Parental responsibility

The birth mother automatically has parental responsibility from the birth, as well as her husband, if they are married. If the mother is not married, the intended father in a surrogacy arrangement can be registered as the father on the birth certificate in order to obtain parental responsibility. Otherwise, parents involved in a surrogacy arrangement can obtain legal parenthood by a Parental Order or an Adoption Order.

If you are intending to become parents through a surrogacy arrangement and either you or your husband, partner or civil partner are genetically related to the baby i.e. egg or sperm donors, you can apply for a Parental Order. You must apply for the Parental Order before the baby is six months old. See www.gov.uk/become-a-childs-legal-parent for how to apply for a Parental Order. Once a Parental Order is granted a new birth certificate is issued and parental responsibility is transferred to the new parents.

If you are not genetically related to the baby, you can apply for an Adoption Order providing you have used a registered adoption agency in the surrogacy process.

Time off work

Who is entitled to maternity leave and pay?

The law currently only gives maternity leave and pay to the surrogate mother who will be giving birth to the baby.

Am I entitled to any time off to accompany the surrogate mother to antenatal appointments?

The intended parents in a surrogacy arrangement who are eligible and intend to apply for a Parental Order are entitled to unpaid time off to accompany the surrogate mother to up to two antenatal appointments. Each appointment is capped at a maximum of 6.5 hours.

It is a good idea to give your employer as much notice as possible of the appointments. Your employer cannot ask for proof of the appointment but they can ask for a declaration stating the time and date of the appointment and confirmation that you are taking the time off to attend an antenatal appointment with the expectant mother.

Are the intended parents entitled to adoption leave?

If you are adopting a child through a registered adoption agency you can apply for an Adoption Order making you the legal parent of the child with parental responsibility and you will be entitled to adoption leave and pay if you meet the normal qualifying conditions, see below.

If your baby is due on or after 5 th April 2015 and you are eligible and intend to apply for a Parental Order, you will be able to take adoption leave and pay and paternity leave and pay, if each parent meets the normal qualifying conditions (see below).

What other leave and pay is available to intended parents in surrogacy arrangements?

You should check whether your employer offers any contractual rights to time off and pay for parents in a surrogacy arrangement.

You are entitled to Parental Leave (this is different from the new right to shared parental leave) if you have worked for your employer for at least a year and you have an Adoption Order or you are named on the child’s birth certificate and you have or expect to have parental responsibility, see below.

In order to take as much paid leave as possible, intended parents can use annual leave. You should talk to your employer about how much annual leave you can use in one block. If you are saving up leave, you should check with your employer how much leave, if any, can be carried forward from one leave year to the next. You must also be sure to give your employer the correct notice for taking annual leave.

You can also ask your employer for unpaid leave. If this is agreed you should be sure to obtain your employer’s agreement in writing, including the date you are expected to return to work, and confirmation that you will be able to return to the same job.

Parental Leave

Parental Leave entitles you to take up to 18 weeks leave, per parent, per child, up to your child’s 18 th birthday. Parental Leave is different from the new right to shared parental leave, which is covered separately below.

How much Parental Leave can I take?

You are only allowed to take a maximum of four weeks Parental Leave per child, per year, unless there is a workplace agreement which allows for more flexible arrangements or your employer allows you to take more than four weeks in one year.

If you want to take a large amount of Parental Leave following the birth of your child through a surrogacy arrangement, you will have to agree this with your employer.

You must give at least 21 days’ notice. Parental Leave is unpaid, but some employers offer paid leave so you should check your contract or ask your employer.

Can my employer refuse to let me take Parental Leave?

An employer cannot refuse Parental Leave if it is to be taken by the father from the date of the child’s birth or by the parents of an adopted child from the start of the placement. At any other time, an employer can postpone parental leave if the employer can show that it would unduly disrupt the business. The employer must agree to allow the parent to take the same period of Parental Leave on alternative dates within six months. For more information on Parental Leave, see Time off for working parents.

Can my employer dismiss me for taking Parental Leave?

No, you are protected against detrimental treatment and unfair dismissal for taking or asking to take Parental Leave. If you are treated unfairly you should raise a grievance using your employer’s complaints procedure. If necessary, you can make a claim in an employment tribunal and you should seek legal advice.

Adoption leave and pay

You may qualify for adoption leave if you have been matched with a child for adoption by a registered adoption agency or you are fostering for adoption. You are entitled to take up to 52 weeks’ adoption leave if you are matched with a child for adoption on or after 5 th April 2015. Parents can decide which parent will be the adopter for adoption leave purposes. The other parent may qualify for two weeks’ paternity leave and pay (for an adoption) if they meet the normal conditions, see below.

For more information on adoption leave and pay, including overseas adoptions, see Adoption leave and pay – rights for parents.

Can I take adoption leave if I am having a baby through a surrogacy agreement?

Intended parents in a surrogacy arrangement who are eligible and intend to apply for a Parental Order within six months of the birth are entitled to adoption leave if the baby is due on or after 5 th April 2015. This also applies where the surrogate mother gives birth overseas.

You are entitled to adoption leave if you are an employee and you give the correct notice, see below for notice.

You are entitled for Statutory Adoption Pay (SAP) if:

• you have been continuously employed by the same employer for at least 26 weeks by the end of the 15th week before the expected week of childbirth, and
• you have average earnings of at least £113 per week (April 2017 – April 2018) in the eight weeks (if paid weekly) or two months (if paid monthly) before the 15th week before the baby is due.

(How to work out the 15th week before the baby is due:

Find the Sunday before the baby is due (or the due date if it is a Sunday) and count back 15 Sundays from there. That is the start of the 15th week before the expected week of childbirth.)

You can claim SAP if you are an ’employed earner’: this includes employees, agency workers and casuals who are paid through PAYE and have tax and NI deducted at source (or would do if they earned enough).

SAP is paid at 90% of your average earnings for the first six weeks and then the flat rate of £139.58 per week (5th April 2016 – 5th April 2017) for 33 weeks or 90% of your average earnings if they are lower.

How do I give notice for adoption leave and pay?

You must give notice to your employer by the end of the 15th week before the baby is due. You should tell your employer the expected week of childbirth and that you are eligible and intend to apply for a Parental Order.

Your employer can request a signed statutory declaration that you intend to apply for a Parental Order within the six month time limit.

Your employer must write to you within 28 days of your notice confirming the date your adoption leave will end. They should assume that you are taking 52 weeks adoption leave. If you wish to return to work you can give eight weeks’ notice to return to work.

You must notify your employer of the day the baby is born as soon as reasonably practicable.

When does adoption leave start?

If you are having a baby through a surrogacy arrangement you can only take adoption leave from the birth or the day after the birth if you are at work that day (not two weeks before the child’s adoption, as for parents who are adopting).

If your baby is being born overseas through a surrogacy arrangement, your adoption leave and pay will start from the birth (or day after if you are at work) even if you are still in the UK. This is different from overseas adoptions where the leave can only start when the child arrives in the UK.

Note: You must notify your employer of the day the baby is born as soon as reasonably practicable so that your employer knows when your leave and pay starts.

What can I do if my employer refuses to pay Statutory Adoption Pay or Statutory Paternity Pay?

If you are refused SAP or SPP, you can contact your local HM Revenue and Customs Office for a formal decision. HMRC will order your employer to pay SAP or SPP if you qualify for it. Any unpaid SAP or SPP can be claimed from HMRC Statutory Payment Disputes Team (see below for contact details).

Paternity leave for an adoption

Who is entitled to paternity leave for an adoption?

You are entitled to two weeks’ paternity leave if you are adopting a child, if you have worked for the same employer for at least 26 weeks’ by the week in which you are matched with a child for adoption and you are the husband, partner or civil partner (including same sex partners) of the main adopter and you have, or expect to have responsibility for the child’s upbringing.

You must give notice to take paternity leave for an adoption within seven days of being matched with a child for adoption.

You can give notice on form SC4 here.

Am I entitled to shared parental leave for an adoption?

Shared parental leave allows the adopter’s husband, wife, partner or civil partner, to share leave if the main adopter goes back to work early or curtails (reduces) the amount of adoption leave they take. Both parents must qualify and you must give the correct notice. You will qualify for shared parental leave if one parent is entitled to adoption leave and Statutory Adoption Pay and the other parent is entitled to paternity leave and Statutory Paternity Pay and you are still employed.

Paternity leave for a birth

You can take paternity leave if you are the intended parent in a surrogacy arrangement and you are eligible and intend to apply for a Parental Order within the six month time limit.

Paternity leave is two weeks’ leave which can be taken at the time of the birth. Paternity leave must be taken within 56 days of the birth or 56 days from the date the baby was due, if the baby was born early.

You can take paternity leave if:

• you are an employee.
• you have worked for your employer for 26 weeks by the 15th week before the baby is due or, if the baby is born before then, you would have worked for your employer for 26 weeks by the 15th week before the baby is due.
• you are still employed by the same employer before the birth.
• you are the legal father or the mother’s husband or partner (including same sex partners or civil partners).
• you are responsible for the child and are taking time off to care for the child or support the mother.

You will also qualify for Statutory Paternity Pay if you earn over £113 per week (April 2017-April 2018) on average, before tax, in the eight weeks (if paid weekly) or two months (if paid monthly) before the 15th week before the baby is due. Statutory Paternity Pay is paid for two weeks at the flat rate of £140.98 per week (April 2017- April 2018).

You must give notice for paternity leave and pay by the 15 th week before the baby is due. You can give notice on form SC3 here.

If your employer requests, you must provide a written declaration that you are entitled to paternity leave and pay and you are eligible and intend to apply for a Parental Order. You do not have to provide a ‘statutory declaration’ as required for adoption leave and pay.

You must also notify your employer of the date your baby is born.

For more information on paternity leave and pay, see the information sheet Time off for Working Parents.

I do not qualify for SPP. Can I claim anything else?

If you do not qualify for SPP, for example, if your earnings are too low, your employer must give you a form OSPP1 explaining why you cannot get it. You may be able to claim Income Support during your paternity leave. Contact your local Jobcentre Plus for a claim form. For more information, see Money for parents and babies.

Shared parental leave

Who is entitled to shared parental leave?

Intended parents in a surrogacy arrangement, with a baby due on or after 5 th April 2015, are entitled to take shared parental leave for a year from the birth if both parents qualify and the parent taking adoption leave returns to work early or curtails (reduces) adoption leave. If one parent qualifies for adoption leave and Statutory Adoption Pay and the other parent qualifies for paternity leave and Statutory Paternity Pay and you are still employed up to the week before you take leave, you are likely to qualify for shared parental leave and pay.

The birth mother is not entitled to shared parental leave as she is not taking the time off to care for the child.
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