New right to parental leave for parents of surrogate children

07 April 2015

2014 was not a particularly good year in the courts for parents entering into surrogacy arrangements.  In CD v. ST [2014] IRLR 551 and then in Z v. A Government Department [2014] IRLR 563, the CJEU found that to deprive surrogate mothers of the maternity leave rights provided to biological mothers was neither sex discrimination nor disability discrimination.

By way of contrast, in legislative terms 2014 was an excellent year for parents entering into surrogacy arrangements.  The Children and Families Act 2014 amended the Employment Rights Act 1996 to take account of the government’s new shared parental leave provisions.  Those new provisions enabled the Secretary of State to make regulations to include within the right to shared parental leave those who have or intend to apply for a parental order under s.54 of the Human Fertilisation and Embryology Act 2008 (i.e. spouses, civil partners or persons living together in an enduring relationship who apply for a child born through surrogacy to be treated as their child).

The excitingly named Employment Rights Act 1996 (Application of Sections 75A, 75B, 75G, 75H, 80A and 80B to Parental Order Cases) Regulations 2014 are the provisions enacted by the Secretary of State to make this happen.

As of 5 April 2015, parents of a surrogate child are treated the same as all other parents when it comes to the right to take leave from work to enjoy those precious first few days, weeks and months with their new child.  They can take advantage of all of the new, more flexible rights to leave from which all other parents benefit.