Employers and HR, usually equipped with the knowledge and experience to deal with issues around biological maternity and paternity leave and pay, are now increasingly required to know the statutory rights of adoptive parents, surrogate women and intended parents.
This includes their respective entitlement to take leave from work, their pay arrangements, and providing wider support through this life-changing time in their lives.
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Employees adopting a child or having a child through surrogacy are entitled to 52 weeks adoption/surrogacy leave. The 52 weeks of leave is made up of 26 weeks ordinary adoption/surrogacy leave and 26 weeks of additional adoption/surrogacy leave.
The surrogate woman as a pregnant employee is entitled to 52 weeks leave. What the surrogate does with the baby after birth does not prevent them from having the 52 weeks of maternity leave. Only one of the adoptive parents or intended parents can take the 52 weeks of leave. The other parent may be eligible for paternity leave.
An adoptive parent is allowed to have paid leave for five adoption-related appointments after they have been matched with a child. The intended parent is permitted to take leave to attend two hospital appointments.
The surrogate woman is entitled to leave to attend all medical and health appointments during the pregnancy. Statutory adoption/surrogacy leave is only available if the adoptive parent or intended parent is an employee, has given the correct notice period and there’s evidence of the adoption of surrogacy arrangements.
The adoptive parent, intended parent and surrogate are entitled to return to the same job they were in before they took the ordinary leave (i.e. first 26 weeks). They are entitled to return to a job that is similar if they took the additional leave (i.e. additional 26 weeks) and are also entitled to pay rises and accrued holiday leave. The employee cannot be dismissed or subjected to unfair treatment.
Statutory adoption/surrogacy pay is available for up to 39 weeks. This is made up of 90% of the employee’s weekly salary for the first six weeks. For the remaining 33 weeks, the pay is based on 90% of the weekly salary or £156.00 per week, whichever is the lowest.
Shared parental leave and shared parental pay is available (subject to eligibility criteria) to adoptive parents, the surrogate or intended parents. If one of the intended parents is genetically related to the child, you can choose to get paternity leave or paternity pay, but you cannot have both.
The adoptive parent, surrogate and intended parent are entitled to attend 10 keep-in-touch days during the period of leave.
If the adoption placement breaks down, an employee can, subject to eligibility, chose to remain on leave for up to eight weeks after the end of the adoption placement.
The aim of the regulations is to ensure that the same or similar rights apply to adoptive parents and intended parents as they would to biological parents.
Creating a family with a child through adoption or surrogacy is an exciting time. It can also be a very anxious and worrying time. It is important that employers and HR personnel have the knowledge to provide support and advice to their employees about their rights at work.
Susan J Williams is partner and head of family at Ince (Cardiff)
The full piece of the above appears in the May/June 2022 print issue. Subscribe today to have all our latest articles delivered right to your desk.
