Surrogacy in the workplace: how to support employees

In this article, we explore the surrogacy route to parenthood, which is often a misunderstood path.

What is a surrogacy?

Surrogacy is a method of assisted reproduction in which a woman carries and delivers a pregnancy for another couple or person. It’s becoming an increasingly common way for individuals and couples to start or grow their families.

It is perhaps more common for a same-sex male couple to have a child through surrogacy so that one of the parents has a biological link to their child.

When it comes to surrogacy, many employers aren’t necessarily aware of what it entails and, as a result, can sometimes say the wrong things to their employees; it doesn’t help that the right to take time off after the birth is via adoption leave.

Intended parents aren’t however adopting their child – they need to apply for a parental order after the birth (and intend to do so before the birth) to become the legal parents of the child and to get the rights below, but this is not the same as adopting their child. This is because, at birth, the surrogate (the woman carrying the child through pregnancy) is the child’s legal mother.

When advising an employee who is starting or growing their family through surrogacy, there are several aspects of employment law that employers, and particularly their HR practitioners, should be aware of.

Time off pre-birth for intended parents

Intended parents in a surrogacy arrangement have the right to take time off to attend antenatal appointments with the surrogate:

• up to two antenatal appointments each
• lasting up to 6.5 hours in total (including travel time)
• unpaid (unless the employer has a policy stating otherwise)
• only one intended parent can attend an appointment at any one time with the surrogate.

Leave post-birth for intended parents

• If in a couple, one employee can take adoption leave (52 weeks) and pay (39 weeks), the other can take paternity leave and pay (2 weeks – taken in one or two-week blocks within the first year of birth).
• Shared Parental Leave and Pay is an option too – where intended parents can share up to 50 weeks’ leave and 37 weeks’ pay if adoption leave and pay is curtailed.
• There are eligibility and notice requirements which intended parents need to satisfy in order to be able to take the above sets of leave and receive pay.
• Parental leave – typically unpaid, parental leave allows parents to take time off to look after their child’s welfare – and it is often used after paid annual leave has been exhausted. Intended parents can take up to 18 weeks’ leave per child, up to 4 weeks’ leave max per year.

Important things to note for both employers, and those employees who are intended parents, are:

• The above does not affect the surrogate’s right to maternity leave – only the surrogate is entitled to statutory maternity leave (and potentially pay).
• Only one intended parent can take adoption leave (the primary ‘adopter’).
• The flexible working request regime also applies, where all employees involved in the surrogacy, whether the intended parents or surrogate, are entitled to make two flexible working requests per year to tweak their working patterns, whether permanently or on a temporary basis.

Things for intended parents to consider

Intended parents should check their employment contract and company policies early on in their surrogacy journey, or ideally before. Some employers offer enhanced adoption or surrogacy-related benefits, but it is not a given.

If in a couple, it is important to work out who is best to take ‘adoption leave’. This decision can be based on a number of factors, such as benefits, career progression or simply who in the relationship has more of a desire to spend the bulk of the time with the child.

It is important to comply with the requirements regarding notice periods. The sooner an employee can let their employer know, especially if they are taking the longer ‘adoption leave’, the better. This can allow employers time to plan for cover etc. where necessary.

Things for employers to consider

Employers should check their forms and policies – is the language inclusive for intended parents? Do sections of the forms and policies cater for surrogacy and intended parents specifically – or are intended parents being asked to ‘fit their situation into the form’?

Employers should educate themselves on terminology and rights as they don’t want to be chasing their tail trying to update policies and procedures when an intended parent or surrogate informs them of their situation. Surrogacy is becoming increasingly common, so it’s important to have policies and procedures in place around the rights of employees involved in a surrogacy arrangement.

If an employer has employee network groups, such as a parental network group, members of the group could be asked to review policies to see whether they are inclusive.

Employers should also take on board feedback from employees who have been through the surrogacy process by asking them what went well and what could have been done better, regardless of whether they were employed by their current employer or not at the time. This will help ensure that the next time an intended parent requests leave, their experience will hopefully be smoother and more tailored to their circumstance.

Conclusion

The emotional aspects of surrogacy are significant for intended parents and surrogates, both pre and post-birth – possibly even more so than other routes to parenthood given the complexities involved. As such, it’s important for employers to be mindful of the potential impact on mental health and work performance.