Adoption and surrogacy rates in the UK are on the rise – in the year ending March 2020 there were 3,440 adoptions and 413 parenting orders following maternity agreement of substitution.
Employers and HR, typically equipped with the knowledge and experience to deal with issues relating to biological maternity and paternity leave and pay, are now increasingly required to be aware of the statutory rights of adoptive parents, wives carriers and intended parents.
This includes their respective right to take time off, their compensation arrangements and wider support throughout this life-changing period of their lives.
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Employees who adopt a child or have a child through surrogacy are entitled to 52 weeks of adoption/surrogacy leave. The 52 weeks of leave consist of 26 weeks of regular adoption/surrogacy leave and 26 weeks of additional adoption/surrogacy leave.
The surrogate woman as a pregnant employee is entitled to 52 weeks of leave. What the surrogate does with the baby after the birth does not prevent her from having the 52 weeks of maternity leave. Only one of the adoptive or intended parents can take the 52 weeks of leave. The other parent can take paternity leave.
An adoptive parent is allowed paid time off for five adoption-related appointments after being matched with a child. The Intended Parent is allowed time off to attend two hospital appointments.
The surrogate 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 is evidence of adoption. surrogacy arrangements.
The adoptive parent, the intended parent and the surrogate mother have the right to return to the same job they held before taking the ordinary leave (i.e. the first 26 weeks). They are entitled to return to similar employment if they have taken the additional leave (ie an additional 26 weeks) and are also entitled to salary increases and accrued leave. The employee cannot be fired or subjected to unfair treatment.
Statutory Adoption/Surrogacy Benefit 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 pay is based on 90% of weekly pay or £156.00 per week, whichever is lower.
Shared parental leave and shared parental compensation are available (subject to eligibility criteria) for adoptive parents, surrogate mother or intended parents. If one of the intended parents is genetically related to the child, you can choose to get paternity leave or paternity benefit, but you cannot have both.
The adopter, the surrogate mother and the intended parent are entitled to 10 days of custody during the leave period.
If the adoption placement is unsuccessful, an employee may, subject to eligibility, choose to remain on leave for up to eight weeks after the adoption placement ends.
The purpose of the regulations is to ensure that adoptive parents and intended parents apply for the same or similar rights as they would 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 staff have the knowledge to provide support and advice to their employees on their rights at work.
Susan J Williams is Partner and Head of Family at Ince (Cardiff)
The entirety of the above appears in the May/June 2022 print issue. Subscribe today to have all of our latest articles delivered straight to your desktop.