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Surrogacy legal challenge

Surrogacy UK supports call for equal rights for surrogate parents, Leigh Day represents mother from Kent in equality challenge against Government

Photo of baby in sling: istock

23 September 2012

A mother in her thirties from Kent is challenging the Government in the High Court in an effort to give equal rights to parents of surrogate children as are afforded to adopted parents and natural birth mothers in respect of maternity and adoption pay and employment protection.

The legal action is being supported by Surrogacy UK, a not-for-profit surrogacy organisation, who are bringing a separate but parallel legal action against the Government. Surrogacy UK is a peer support group, which provides information and support to those hoping to create families through surrogacy.  

The woman known only as RKA, is taking legal action against the Secretary of State for Work and Pensions under the Human Rights Act on the basis that she has been discriminated against as she was not entitled to any statutory paid leave to care for her new-born child, or given employment protection whilst she was off caring for her new-born son.

RKA has been unable to carry a child due to a medical condition since birth. In 2011, following IVF treatment she and her husband successfully created embryos, which were transferred to a surrogate.

In September 2011 after confirmation that the pregnancy was progressing as hoped, RKA approached her employer requesting details of her leave entitlement. Her employer advised her that they were under no legal obligation to provide any paid leave to her to allow her time off to care for her child, but finally offered 52 weeks unpaid leave as a gesture of goodwill.

RKA, unhappy with the difference in treatment she was receiving, contacted her MP on 1 November 2011.

Her MP forwarded the request for assistance with obtaining any paid leave entitlement, to the Secretary of State for Work and Pensions, Iain Duncan Smith MP.

In a response dated 19 November 2011, a letter from the Department of Work & Pensions declined any assistance on the basis that maternity benefits were related to: “time off in the later stages of pregnancy and [to] prepare for, and recover from, childbirth in the interests of health and that of their baby.”

RKA queried, via her MP, how the response of the Department of Work & Pensions could apply to adoption leave, given in that circumstance the mother had not been pregnant or given birth.

On 24 January 2012, in the same month that RKA’s son was born, a further response was sent by the Department of Work & Pensions which said: “Consideration of the final proposals is still underway and changes will be subject to affordability. The Government response will be published in due course.”

To date no proposals relating to mothers, or parents, of children born through surrogacy have been published.

Having been forced to accept the unpaid leave offered by her employer RKA contacted her employer in May 2012 to discuss returning to work only to be told that she was at risk of redundancy. She was made redundant in July 2012 and has since not been able to return to employment.

As unpaid leave is not recognised as ‘protected leave’ she was not qualified for the added protection afforded to woman on maternity leave and parents on adoption leave during the redundancy process.

Currently, maternity leave is triggered by being pregnant and allows a mother to take up to 52 weeks leave with maternity pay guaranteed up to 39 weeks paid.  It is an absolute right available to all pregnant women from 11 weeks before the expected due date.

Adoption leave is triggered by an adoption agency matching prospective adopters and a placement date being agreed. Adoption leave allows an adopter to have up to 52 weeks leave and adoption pay guaranteed for up to 39 weeks.

Both of these are recognised as ‘protected leave’ and as such it is not just the right to leave and guaranteed pay these parents receive, it is also added protection in redundancy situations.

The only rights a parent of a child born via surrogacy has is discretionary parental leave. This is however only available after a parental order is granted which is usually many months to a year after the baby is born.

Parental leave is unpaid, unprotected, and is not guaranteed and can be postponed by an employer if they believe there is a good business reason. Employers are also only bound to provide statutory parental leave to employees who have been employed for over 1 year and although parental leave allows for 13 weeks leave in the first 5 years of a child’s life (longer if the child is disabled), an employer can limit it to being taken in periods of no more than 4 weeks per year.

Merry Varney from law firm Leigh Day who is representing RKA, said:

“We believe the current equality act and employment rights act are not currently adequate for parents of children born via surrogacy.

“The Government has a positive obligation under Article 8 of the Human Rights Act to protect surrogate parents to ensure respect for their private and family life and a positive obligation under Article 14 to avoid discrimination.

"We hope that through bringing these cases, parents of children born via surrogacy can be considered equal to those fortunate to have a family through natural childbirth and certainly, alongside the rights afforded to adoptive parents, so that they too can care for their new-born child without having added financial stress or having to resign from their employment."

Steve Holford, the Chairperson of Surrogacy UK, said:

“There can be no reason to treat parents of children born via surrogacy any differently from any other parent looking after a new-born, taking time to bond with the child and establishing a routine. 

“In surrogacy there remains the same absolute need to provide this essential care as in any other pregnancy. The Government has a responsibility to ensure that all parents have rights to a family life and the best possible start for their child.”

Information was correct at time of publishing. See terms and conditions for further details.

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