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Family Law Specialist Duncan Ranton discusses Surrogacy Law

A little while ago, I wrote an opinion piece for Family Law Online about the discriminatory application of rules on maternity / paternity leave to parents of children born via Surrogacy.  A practical example of the discrimination described surfaced in the press over the last few days (see, amongst other sources, Kent Online). A Kent woman, known as RKA, intends to bring a claim against the Department for Work and Pensions, under the Human Rights Act. This is because she is not entitled to any statutory paid leave to care for her new-born son, or any employment protection while off caring for her baby.  The reason? … Because her son was born via a surrogate. RKA was unable to carry a child due to a congenital condition. Last year, following IVF treatment she and her husband successfully created embryos, which were implanted into a surrogate. In September - after confirmation that the pregnancy was progressing well - RKA approached her employer requesting confirmation of her leave entitlement.  Her employer responded it was under no legal obligation to allow her time off to care for her child, but it did offer 52 weeks unpaid leave as a gesture of “goodwill”.An approach via her MP to the Secretary of State for Work and Pensions was met with an entirely unsatisfactory response in November 2012: it claimed Maternity Benefits related to “time off in the later stages of pregnancy and [to] prepare for, and recover from, childbirth in the interests of [the birth mother’s] health and that of their baby.”  After accepting her firm's offer of unpaid leave, RKA has now been told she has been made Redundant.  As she was ineligible for maternity leave, her position was not protected during her unpaid leave.  An attempt to address the plight of working surrogate parents came earlier this year, in the form of a Private Member's Bill, the Surrogate Parents (Leave, Pay and Allowance Arrangements) Bill 2010-12. The Bill was introduced in April 2012 under the "Ten Minute Rule". It sought to equalise leave, pay and allowance arrangements for parents of children born to surrogate mothers with those of "traditional" parents. Unfortunately, the Bill failed to complete its passage through Parliament before the end of the session, and the suggested reforms have not been re-tabled.  Nevertheless, we might be inching towards some improvements to address this inequality. The question of paid parental leave for parents of children born by surrogacy was not included in the Government's "Consultation on Modern Workplaces". However, Norman Lamb MP (the Minister for Employment Relations, Consumer and Postal Affairs) confirmed in July 2012 that the Department for Business, Innovation and Skills is aware of the issue. He said it "will be looking into the possibility" of providing leave and pay for parents in surrogacy cases.And in December 2011, an English Employment Tribunal referred to the ECJ questions about whether EU maternity and discrimination law protected a woman who became a mother through surrogacy (CD -v- ST - ET/2505033/11). A decision from Luxembourg is awaited.Beyond question, the UK’s approach to maternity / paternity leave for parents of children born via surrogacy is positively discriminatory. The mealy-mouthed explanation offered by the DWP to RKA does not stand any scrutiny. If the scope and intention of maternity benefits is as narrow as described, why do we grant parental leave to Adoptive Parents?  I wish RKA the best of luck with her application. Her case, along with the referral to the ECJ described above, will help drive reform in an area where the government seemingly feels no moral obligation to legislate to end Discrimination.  I conclude this blog as I did my Family Law Opinion piece, with a call for reform. We need reform that ignores old-fashioned gender labels and the largely irrelevant detail of the mechanics of how a child is born, to provide a parental leave scheme that is fair and which accommodates modern families, and the many different shapes they take.

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