Maternity leave rights during surrogacy

If you are expecting a baby through surrogacy you have maternity leave rights and you may be entitled to the equivalent of statutory maternity leave through adoption leave and pay.

Only one of you can claim adoption leave, and the other parent will then be entitled to 2 weeks’ paternity leave (as long as they meet the eligibility requirements below).

You will also have the option of applying for shared parental leave, which means you can either both stay at home with your baby for the first six months or stagger your leave over the year.

If you are a surrogate and are employed, your statutory maternity leave rights will be the same as anyone else who is having a baby. The fact that you are acting as a surrogate won’t impact on your rights to maternity leave and pay.

Eligibility requirements

To be eligible for statutory adoption leave, you must intend to apply for a parental order (by following a court process which secures your legal parentage). You may be asked to provide your employer with a statutory declaration confirming that you will apply for a parental order once your child has been born, and you must tell your employer at least 15 weeks before your baby is due that you intend to take adoption leave. During the pregnancy, if you are eligible for adoption leave, you will also have a right to unpaid time off to attend up to two antenatal appointments with your surrogate.

If you are planning a surrogacy journey or are having a baby through surrogacy and would like legal advice please visit our surrogacy law services page or contact our highly specialist Fertility team who will be able to assist. Call our expert team on 01202 525333 or send us an email enquiry at fertility@ellisjones.co.uk.