Before 5 April 2015 couples who became parents via a surrogacy arrangement did not have any right to maternity, paternity or adoption leave or pay. The only option open to them was to take unpaid parental leave or to make requests of their employer to grant them the right to participate in company policies such as enhanced adoption leave on a discretionary basis.

Changes brought in under the Children and Families Act 2014 mean that with effect from 5 April 2015 parents who apply for a parental order in relation to a child born under a surrogacy agreement will be entitled to the same leave and pay as other families who are birth parents or who adopt, thereby giving such families equality and protection at such an important time for these children and parents.

Who is entitled?

Couples who apply for a parental order in relation to a child born to a surrogate. An application for a parental order must be made by two people, who are either married, in a civil partnership or an ‘enduring family relationship’. At least one of the applicants must be biologically related to the child. 

What leave is available?

• 52 weeks statutory adoption leave
• If the primary adopter returns to work before the end of their adoption leave entitlement, the remaining period of adoption leave can be shared between the two adopting parents in accordance with the rules on Shared Parental Leave

Pay: 

• For the first 6 weeks of adoption leave the primary adopter is entitled to 90% of their average weekly earnings before tax
• For the following 33 weeks they are entitled to statutory adoption pay, or 90% of their average weekly earnings before tax, whichever is lower
• If the person who has elected to take statutory adoption pay returns to work before the end of their adoption pay entitlement, the remaining period of adoption pay can be shared between the two adopting parents in accordance with the rules on Shared Parental Pay.