Employment Law: Surrogacy and Fertility

Over the years, employment law has made significant strides to ensure that employees undergoing surrogacy arrangements or fertility treatments are afforded specific rights and protections.

Our award winning Employment team are often asked to advise employers and employees on the rights and obligations when it comes to surrogacy and fertility within the context of employment law.

Senior Associate, Alex Pearce looks at a number of Q & A’s on this topic.

What is a surrogacy?

Surrogacy is when a woman (the surrogate) carries and gives birth to a baby for another person or couple (intended parents).

Do I need to obtain a Parental Order or Adoption Order?

You must apply to become the legal parent within 6 months of the child’s birth to get parental rights, leave and pay.

If one intended parent is genetically related to the child, an application for a Parental Order should be applied for. If the intended parents are not genetically related to the child an Adoption Order should be sought.

Are surrogate mothers entitled to maternity leave and pay in the UK?

Yes, surrogate mothers are entitled to the same maternity leave and pay as any other pregnant employee. This includes up to 52 weeks of maternity leave and statutory maternity pay if they meet the eligibility criteria.

Is the intended mother entitled to maternity leave?

In short, No. In CD v ST C-167/12 and Z v A Government Department and the Board of Management of a Community School C-363/12, the European Court of Justice held that the Pregnant Workers Directive does not require the intended mother to also be entitled to take maternity leave.

What rights do intended parents have to leave when their child is born via surrogacy in the UK?

Intended parents might be entitled to statutory adoption leave or statutory adoption pay, rather than traditional maternity or paternity leave. This includes:

• Adoption Leave. Eligible employees can take up to 52 weeks of adoption leave.  This is a day one right.

• Statutory Adoption Pay (SAP): This is paid for up to 39 weeks, provided they meet the eligibility criteria. It is paid on the same basis as maternity pay and starts when the employee takes adoption leave.

What is the eligibility for statutory adoption leave?

Firstly, you must be legally classed as an employee. You must tell you employer and give them the correct notice. Your employer may ask for proof of surrogacy and you will need to provide that proof if asked.

If a surrogate mother is unable to work due to pregnancy-related illness, are they entitled to statutory sick pay?

Yes. If a surrogate mother is unable to work due to pregnancy-related illness, she is entitled to the same rights as any pregnant employee. This includes sick leave and statutory sick pay if eligible.

Can an intended parent get time off to attend antenatal appointments with the person giving birth?

Yes, however that time is unpaid and extends to two antenatal appointments.

Can an employee work during adoption leave with it effecting their pay or leave?

An employee can choose to work for up to ten days during your adoption leave without it affecting their leave or pay. These are referred to as keeping in touch days.

Should an employer have an IVF and assisted conception policy, pregnancy loss policy and a stillbirth and neonatal loss policy?

Whilst there is no obligation for an employer to have the aforementioned policies, it is recommended. An employer may also wish to consider a shared parental leave (adoption and surrogacy) policy and an adoption policy.

Is there a statutory right to time off for IVF treatment?

No, however, case law at both domestic and European level supports the idea that employers should allow employees time off for the latter stages of IVF treatment and must not treat them less favourably as a result.

What if an employer rejects a request for leave to undergo IVF Treatment?

A woman whose request for leave to undergo IVF treatment is refused may be able to claim direct sex discrimination. It could also give rise to a claim for indirect sex discrimination.

At what stage is an employee pregnant when having IVF treatment?

From a legal standpoint, an employee is treated as pregnant when they have reached the embryo transfer stage. You’ll have the same rights as any pregnant person, including leave, pay, and protection from discrimination because of pregnancy or maternity.

Are there any specific health and safety considerations for pregnant surrogate mothers in the workplace?

Yes. Employers must carry out a risk assessment for pregnant employees, and this include surrogate mothers. If any risks are identified, an employer must take steps to remove or reduce the risk, which may include amending working conditions or offering suitable alternative work.

As an employer, how can I support an employee going through fertility treatment or surrogacy?

There are a few things as an employer that you can do to support employees, this could include offering flexible working arrangements, providing paid or unpaid leave for medical appointments, and offering access to employee assistance programs or counselling services.

How Pinney Talfourd can help

If you require more information on employment law regarding surrogacy and fertility treatment, please contact our Employment team on 01708 511 000. For further details on surrogacy, our Family team is available to provide legal support and guidance. You can reach them on 01277 211 755.