Surrogacy leave in the UK gives intended parents the right to take time off work when a child is born through a surrogacy arrangement. Since intended parents are not the birth parents, they do not qualify for maternity leave. Instead, they access statutory paternity leave for the male intended parent and shared parental leave for either parent.
The UK permits altruistic surrogacy but prohibits commercial arrangements under the Surrogacy Arrangements Act 1985. Because the intended parents are not the legal parents at birth, the leave framework is more complex than standard parental leave.
Key Takeaways
- Intended parents in surrogacy cases can access statutory paternity leave and pay (if the father or partner) or shared parental leave and pay.
- The male intended parent qualifies for statutory paternity leave if married to or in a civil partnership with the intended mother, or if the couple lives together.
- Statutory paternity leave provides 1-2 weeks of paid leave at 90% of average weekly earnings for the first 6 weeks, then the flat rate or 90%, whichever is lower.
- Intended parents should notify their employer at least 15 weeks before the expected week of the child’s birth.
What Is Surrogacy Leave?
Surrogacy leave is the time off work intended parents are entitled to when a child is born through surrogacy. It is not a standalone statutory category — instead, intended parents access existing leave provisions adapted to cover surrogacy.
The system works through two main routes: statutory paternity leave (for the male intended parent or partner) and shared parental leave (either parent, up to 50 weeks shared between the couple). The relevant legislation is the Employment Rights Act 1996 for paternity leave and the Children and Families Act 2014 for shared parental leave.
Statutory Paternity Leave for Surrogacy
The most common route to surrogacy leave for intended parents is statutory paternity leave. This applies to the male intended parent or the partner of the intended mother when a child is born via surrogacy.
Eligibility
To qualify for statutory paternity leave in a surrogacy case, the intended parent must:
- Be the father or partner of the intended mother (not the surrogate).
- Have been continuously employed for at least 26 weeks by the end of the week before the expected week of the child’s birth.
- Be married to or in a civil partnership with the intended mother, or be living with the intended mother and the child at the time of the birth.
- Notify their employer at least 15 weeks before the expected week of the birth.
The key requirement is the relationship to the intended mother. The father or partner does not need to be genetically related to the child (which is relevant in surrogacy where donor gametes may be used), but must be in a qualifying relationship with the intended mother.
Duration and Pay
| Component | Duration | Details |
|---|---|---|
| Statutory paternity leave | 1 or 2 weeks | Employee chooses 1 or 2 weeks |
| Statutory paternity pay | First 6 weeks at 90% of average weekly earnings, then flat rate or 90%, whichever is lower | Up to the 2-week leave period |
Statutory paternity pay (SPP) in 2025/26 is the flat rate of £172.48 per week or 90% of average weekly earnings, whichever is lower, after the initial 6-week qualifying period at 90%.
What If the Father or Partner Does Not Qualify?
If the intended parent does not meet the 26-week employment test, they may still be eligible for:
- Unpaid parental leave — up to 18 weeks per child, unpaid, available to all parents who meet the employment criteria.
- Shared parental leave — available if the intended mother (or the person who received the statutory maternity pay / maternity allowance) qualifies and is willing to transfer some of their entitlement.
- Contractual leave — many employers offer enhanced paternity leave beyond the statutory minimum, and some include surrogacy explicitly in their policy.
Shared Parental Leave and Pay
Shared parental leave (SPL) is the more flexible option for intended parents in surrogacy cases. It allows up to 50 weeks of leave and 37 weeks of pay to be shared between the intended parents, regardless of which parent is taking leave.
How SPL Works in Surrogacy
The person who qualifies for maternity pay or maternity allowance can opt to end it early and convert the remaining entitlement into shared parental leave and pay. This means the intended mother can take a shorter period of maternity leave, the remaining weeks can be shared between the intended parents, and the male intended parent can take their share of SPL at any time, not just immediately after the birth.
Both intended parents must meet the employment criteria: at least 26 weeks of continuous employment by the qualifying week, earning at least the Lower Earnings Limit (£125.60 per week in 2025/26). Shared parental pay (ShPP) is the flat rate of £172.48 per week (2025/26) or 90% of average weekly earnings, whichever is lower, for up to 37 weeks.
Notifying Your Employer
Statutory paternity leave requires at least 15 weeks’ notice before the expected week of birth, including the expected birth week and how long you want to take. If the child arrives early, notify your employer as soon as possible. Shared parental leave requires at least 8 weeks’ notice before the first period of leave, with both intended parents giving separate notices to their respective employers.
Intended Parents’ Rights After Birth
After the child is born through surrogacy, the intended parents do not immediately have legal parental rights. The surrogate (and her spouse or civil partner, if applicable) remains the legal parent until a parental order is granted by the court.
Key Legal Points
- Parental order. Intended parents must apply to the court within 6 months of the child’s birth to transfer legal parenthood from the surrogate.
- Leave rights are not contingent on a parental order. Entitlements apply from the child’s birth regardless of legal parent status.
- Adoption leave alternative. If intended parents formally adopt rather than obtain a parental order, they may qualify for statutory adoption leave instead.
Frequently Asked Questions
Can intended parents take adoption leave for surrogacy?
In most cases, no. Adoption leave is reserved for children placed by an approved adoption agency, which does not typically apply to surrogacy arrangements. However, if the intended parents formally adopt the child rather than obtaining a parental order, they may qualify. Consult a legal professional for advice specific to your situation.
Does the surrogate qualify for maternity leave?
Yes. The surrogate is the legal mother at the time of birth and is entitled to statutory maternity leave and pay in the same way as any other birth mother, regardless of the surrogacy arrangement. The surrogate’s employment rights are not affected by the agreement with the intended parents.
What if we are a same-sex couple?
Same-sex intended parents can access the same statutory leave provisions. The female partner of the birth mother may qualify for statutory paternity leave if they meet the eligibility criteria. Both partners can also access shared parental leave, allowing them to share up to 50 weeks of leave between them.
Can I get statutory paternity pay if the child is born abroad?
If the child is born abroad during a surrogacy arrangement, the intended parent may still qualify for statutory paternity leave and pay, provided they meet the UK employment criteria and the child’s expected week of birth is in the UK. The leave begins on the date of the child’s birth or the date the employee returns to the UK, whichever is earlier.
What happens if the surrogacy arrangement falls through?
If the surrogacy arrangement does not proceed to birth, the intended parent’s leave entitlements do not apply. However, if the child is born and the arrangement falls through after birth, the intended parent may still be entitled to paternity leave for the period they were absent. Employment protection during the leave period continues regardless of the surrogacy outcome.
This article is general information, not legal advice. Consult a qualified employment lawyer for guidance on your specific jurisdiction and circumstances.
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