By Zaina Mahmoud and Kirsty Horsey
At the end of March 2023, the Law Commission of England and Wales and the Scottish Law Commission published their joint Report, Building Families Through Surrogacy: A New Law, outlining recommendations for a new regulatory regime governing surrogacy in the UK, including a new route to (legal) parenthood for intended parents (IPs), referred to as “the new pathway” (para 1.10). Chapter 15 of the Report provides an overview of the consequential impact of surrogacy on other areas of law — most relevantly here, employment law.
Surrogacy raises questions about the purpose of employment-related pregnancy and maternity rights. In the UK, as the birth parent, surrogates are required to take at least two weeks of compulsory leave after giving birth, and are also entitled to statutory maternity leave for 52 weeks. However, they are only entitled to statutory maternity pay if they meet the relevant conditions:
- 26 weeks continuous employment up to and including the 15th week before the expected week of childbirth; and
- average earnings of at least the lower earnings limit for national insurance contributions during the eight-week period ending on the 15th week before the expected week of childbirth. (Statutory Maternity Pay is paid for up to 39 weeks and those who receive it get 90% of their average weekly earnings (before tax) for the first 6 weeks, followed by £172.48 or 90% of average weekly earnings (whichever is lower) for the subsequent 33 weeks. It should be noted, however, that employers may have their own maternity/parental leave and pay policies, which operate in addition to the statutory baselines.)
While IPs — including the intended mother, where there is one — are not entitled to statutory maternity leave or pay, as this is reserved for those who have given birth (see also C-167/12 CD v ST [2014] 3 CMLR 15), provided the (different) eligibility criteria are satisfied, they may be entitled to statutory adoption leave and pay. One IP (“Parent A”) may take up to 52 weeks of statutory adoption leave and may receive statutory adoption pay. The other parent (“Parent B”) is entitled to paternity leave and pay subject to meeting the eligibility criteria. Additionally, IPs may be eligible for Shared Parental Leave and Statutory Shared Parental Pay, provided they both share responsibility for the child from birth. They must meet various eligibility criteria, depending on whether both IPs want to share Shared Parental Leave and Statutory Shared Parental Pay, or only one IP will take Shared Parental Leave and Statutory Shared Parental Pay. Statutory Shared Parental Pay is paid at the rate of £172.48 per week or 90% of average weekly earnings, whichever is lower, with no mirroring of the first six weeks’ provision contained in statutory maternity or adoption pay. Under Shared Parental Leave rules, people can take both types of leave, and usually do in practice — i.e., start adoption leave then switch into Shared Parental Leave.
A pregnant person who has been employed (but is ineligible for Statutory Maternity Pay) or is/was self-employed for some of the time during and before the pregnancy may be eligible to receive a “maternity allowance.” As noted by the Law Commissions in their 2019 Consultation Paper, a self-employed intended mother does not qualify for statutory maternity pay or maternity allowance, as these are connected specifically to the pregnancy (para 17.30). In their final Report, the Law Commissions recommend provision of an equivalent allowance for one of the IPs, either by extending maternity allowance eligibility to IPs, or creating a new equivalent benefit specifically for surrogacy agreements (para 15.87, Recommendation 75). Additionally, their proposed “new pathway” allows for the IPs to be recognized as the child’s legal parents from birth (Recommendation 1). Despite no longer being recognized as the legal mother, it is proposed that the surrogate’s existing entitlement to statutory maternity leave would not be affected by this change (para 15.98).
Many of the Law Commissions’ recommendations aim to better align IPs’ entitlement with current provisions for adoptive parents. While pregnant, the surrogate is (rightly) entitled to take off as much paid time as necessary for antenatal appointments, as well as paid leave up to 11 weeks before birth. However, in law, IPs are only able to take unpaid time off for up to two antenatal appointments for a maximum of 6.5 hours (para 15.98). Of course, where in vitro fertilization is used, surrogates will typically be under consultant-led care, and there will be increased antenatal scans (compared to non-surrogate pregnancies), rendering this provision insufficient.
The Law Commissions recommend that IPs’ entitlement to leave for antenatal appointments align with that of adoptive parents: one IP would be eligible for paid time off to attend up to five antenatal appointments, and the other for unpaid time off for up to two occasions (para 15.100, Recommendation 76).. Similarly, they recommend that IPs be eligible for paid leave for up to 14 days before the expected birth, as is the case for adoptive parents (para 15.105). The choice to mirror adoption legislation is noteworthy, as it does not align with the rest of the Report, or the UK Government’s and the courts’ view that surrogacy is different from adoption and deserves bespoke provisions.
Partially driven by various campaign groups, there has been an increased focus in the UK on (in)fertility in the workplace, including the difficulties faced by those seeking surrogacy (which requires taking time off) and those seeking fertility treatment (which, similarly, is usually provided during working hours). This has been reflected in the government’s actions, as best evidenced by a Private Members’ Bill put forward by Nickie Aiken MP: the Fertility Treatment (Employment Rights) Bill. Others in this series have highlighted the importance of this Bill in potentially introducing fertility leave and others have highlighted its limitations. Importantly for the surrogacy context, this bill would amend the Employment Rights Act 1996 and “require employers to allow employees to take time off from work for appointments for fertility treatment, and for connected purposes.” Specifically, it would allow those undergoing fertility treatment to take paid time off to do so (without prejudice) — this obviously covers surrogates, but would also cover IPs who need to attend a fertility clinic to provide gametes or create embryos. Importantly, it would also allow employees in a “qualifying relationship” with a person undergoing treatment the time off to accompany that person to appointments — and specifically includes IPs. It is good to see surrogacy-specific proposals included in this way, and we would argue that a similar approach should be taken regarding parental leave and pay, to disassociate surrogacy from adoption and match the government’s published recognition of surrogacy as “a legitimate form of family building.”
Zaina Mahmoud is a lecturer in law at the University of Liverpool.
Kirsty Horsey is a professor of law at the University of Kent.
