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taratill
taratill, Solicitor
Category: Employment Law
Satisfied Customers: 6339
Experience:  15 years experience of advising on employment law matters
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Maternity Leave rights/pay mother under surrogacy

Resolved Question:

Maternity Leave rights/pay for intended mother under surrogacy agreement
Submitted: 1 year ago.
Category: Employment Law
Expert:  taratill replied 1 year ago.
Hello my name is ***** ***** I am happy to help you today. Are you adopting the child when he or she is born?
Customer: replied 1 year ago.

Hi Jenny,

We are in a surrogacy agreement for a child. The child will be born to a surrogate in India, however my wife would like to better understand her rights regarding maternity leave/pay.

Specifically relating to confidentiality - we don't want the employer to know that the child will be born via a surrogate as:

1) The employer is a business with connections to family members

2) The direct manager is not trusted

Thanks

Expert:  taratill replied 1 year ago.
Ok are either you or your wife biologically connected to the child such that you are able to apply for a parental order or do yo intend to adopt the child at a later date? Presumably you intend to inform the employer at birth?
Customer: replied 1 year ago.

Yes, I am biologically related to the child and therefore will be applying for parental order when we arrive back in the UK.

The baby is expected to be born at the end of January 2016, however we need to make a decision whether to apply for maternity leave/pay for my wife, or to resign from her position in order to maintain confidentiality. Thanks

Customer: replied 1 year ago.

In terms of informing the employer, we can do that anytime from now - however we don't want to inform them that we are undergoing surrogacy - if that makes sense.

So ultimately, the question is: Can we claim for maternity leave/pay as an intended mother under surrogacy, without informing the employer that we are undergoing surrogacy due to confidentiality issues. Thanks.

Expert:  taratill replied 1 year ago.
Somewhat surprisingly the commissioning mother in a surrogacy relationship is not entitled under UK law to maternity leave. There has been a recent European Court of Justice Case on the point.
She will however as the partner of a parental order parent, be able to apply for adoption leave (which is similar to maternity leave) an overview of this entitlement is contained on the following website ://www.gov.uk/adoption-pay-leave. In this situation notice does not need to be given until after the child is born which hopefully helps with your desire to maintain confidentiality under the time of the birth.
If you have any further questions please do ask. If I have answered your question I would be grateful if you would take the time to rate my answer. Thank you and all the best.
Customer: replied 1 year ago.

Thanks. Based on this, it seems there is no way to claim pay from the employer without informing them that this is under adoption leave - via surrogacy, as we will also need to provide matching proof - which is what we do not want to do.

It seems a little unfair as this is not in the best interests of the child or mother - and we will have little choice but to lose out on the financial benefit, as well as lose her job in order to protect ours and the child's confidentiality.

Expert:  taratill replied 1 year ago.
Sadly there is no way around declaring it at the time the baby is born. I am sorry that this is the case but the employer has to pay the leave and make alternative arrangements so it is hard to see how it could be managed any other way even though I recognise it can cause particular problems in your situation.
I would be grateful if you would take the time to rate my answer. Thank you and all the best.
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