High court challenge to change maternity leave rights for surrogacy families

A joint claim has been lodged at the High Court challenging the lack of maternity leave rights for families through surrogacy. Surrogacy UK and a mother directly affected are together seeking a declaration from the High Court that the current law is unfair. The issue is that UK parents who have a child with the help of a surrogate mother do not have rights to time off work to care for their new child, while parents who give birth or who adopt do. As a result, the mother bringing the claim (known only as RKA) was denied maternity leave rights by her employer to care for her newborn child, and was then made redundant while on unpaid leave. Surrogacy UK, which has brought the claim together with her in its capacity as a leading representative of many UK families, says: “We’ve made this claim as the leading surrogacy organisation in the UK, reflecting our responsibility to promote and protect the interests of our members and all others involved in surrogacy. Put simply, there can be no reason to treat parents of children born via surrogacy any differently from any other parent looking after a new-born. The Government has a responsibility to ensure that all parents have rights to a family life and the best possible start for their child.” Merry Varney from law firm Leigh Day & Co, who is representing RKA and Surrogacy UK, says: “The Government has a positive obligation under Article 8 of the Human Rights Act to protect surrogate parents to ensure respect for their private and family life and a positive obligation under Article 14 to avoid discrimination.” The anomaly which denies maternity leave was raised in Parliament earlier this year, when John Healey MP called for equal maternity leave rights for mothers through surrogacy. His constituent Jane Kassim had also been denied maternity leave after her cousin Amy carried her and husband’s twins (read more about what he said here). With the Department of Business Innovation and Skills currently reviewing the law on maternity rights, there is an opportunity to address the problem. While surrogacy was historically a rare phenomenon which only affected a tiny handful of families, that is no longer the case. The numbers of parental orders (the orders which make parents through surrogacy the legal parents) stood at 138 last year, up from 58 just two years ago. We at Natalie Gamble Associates have been campaigning to end discrimination against surrogate families for many years. As well as the employment law issues, other problems arise from the fact that it takes so long (often up to a year after the birth) for the parents to win legal recognition. There can be problems with medical consent, not to mention severe difficulties over immigration where children are born through surrogacy abroad. There is also no proper regulation of surrogacy services in the UK, while surrogacy thrives as an industry in many places abroad, driving more and more parents to go abroad. Surrogacy law in the UK desperately needs updating and we hope dealing with the employment discrimination will be just the first step.