In September 2011, a mother who was having a child through surrogacy asked her employer for details of her leave entitlements.
The employer offered 52 weeks’ unpaid leave, but said it had no legal obligation to provide paid leave or time off.
The mother then contacted her MP to express her dissatisfaction at the varying treatment for adoption and surrogacy. She argued that although she had not given birth to her son, she required time off to care for and bond with him.
The MP forwarded her request for assistance in obtaining paid leave entitlement to work and pensions secretary Iain Duncan Smith. The Department for Work and Pensions (DWP) declined to help, basing its decision on the fact that maternity benefi ts were related to “time off in the later stages of pregnancy and to prepare for, and recover from, childbirth in the interest of their and their baby’s health”.
The mother asked her MP how this applied to parents taking adoption leave. The DWP told her consideration of proposals for changes to maternity leave in the case of surrogacy was under way, and changes would be made subject to affordability. She was told the government would publish its response in due course.
The mother took unpaid leave to spend time with her son, and in July 2012 she was made redundant.
Rachel Irwin, solicitor at Leigh Day and Co, the law fi rm representing the mother in a High Court case against the government, says a successful outcome in the case could see employers forced to treat the mothers of children born via surrogacy in the same way as they treat employees who are birth or adoptive mothers. This could result in surrogates being given statutory maternity leave and pay, with time off granted for ante-natal care and enhanced protection if an employee is made redundant during maternity leave.