Currently the law does not recognise surrogacy as a binding agreement on either party.
There is very little the intended parents can do to secure their position prior to the birth, even in the case of gestational surrogacy where the baby is genetically related to both intended parents and not the surrogate.
Because of this the BMA believes that it would be difficult to legislate to enable intended mothers to have equal rights to maternity leave and pay.
If the intended parents are going to obtain a Parental Order after the child is born this will in effect transfer legal parenthood from the child’s birth mother to them.
The effect of obtaining such an Order is that in law the surrogacy is classified as an adoption entitling the intended parent to adoption leave and pay, which is equivalent to that of maternity leave and pay.
Therefore, the intended parent could potentially be entitled to up to 52 weeks’ statutory leave and up to 39 weeks’ statutory pay.
Members should check with their employer to see what policy they have which covers this.