Mothers who have babies through surrogates deserve equal rights

by John Healey

Today I’m bringing a Ten Minute Rule Bill as a first step towards closing a legal loophole meaning mums who have babies through surrogates aren’t entitled to any maternity leave or pay.

I’m doing so on behalf of two Rotherham women who came to see me at one of my constituency advice surgeries in January.

Amy Bellamy was seven months pregnant with twins for her cousin Jane Kassim. Jane had been told at 15 she could never carry children and Amy had selflessly offered to be a surrogate.

When Amy became pregnant it was the news Jane and her husband had longed for. Implntation of Jane’s fertilised eggs had failed twice, so they were elated when the third attempt was a success. Then they found out they were expecting twin girls!

Like any other mother Jane started to prepare for the birth.

She asked her employer for maternity leave, but was stunned to find out that she had no legal right to maternity leave or pay. She had fully expected to take up to 52 weeks off and get 39 weeks’ pay, just as mothers who have their own babies or adopt are able to do.

I was also astonished to find this gap in the law when I checked the facts.

Maternity rights are to help mothers and their newly born babies through the earliest months of the child’s life, when time together is most needed.

Mums like Jane need this support just like any other new mother. They nearly always start to care for their baby full-time soon after the birth. It’s unfair and unreasonable to deny mothers whose babies are born through surrogates the rights that those giving birth themselves or adopting automatically have.

Thanks to Amy – who gave birth around a month ago – Jane and Adis are now the proud parents of twins Ivy and Isla. Both their own biological children. And fortunately Jane’s employer has been understanding and is allowing her the time off she needs, though she won’t receive any pay.

But many mums in this situation face a difficult choice: go back to work very quickly or give up work entirely.

Good employers who can afford to do so may grant discretionary leave but they are under no obligation, it is usually unpaid and it is costly because they are unable to claim any contribution from public funds.

Other less fortunate mums-to-be are forced to involve a solicitor and enter difficult negotiations with their bosses.

So my Bill calls for mothers who have babies through surrogates to have the right to the leave, pay and allowance arrangements that mums giving birth or adopting do.

The 13 weeks’ unpaid parental leave mums like Jane are entitled to is just not enough, and this can only be taken after a parental order is in place passing legal responsibility and rights to the parents from the surrogate mother. This order cannot be applied for until the baby is six weeks old and the process – which is dependent on the workload of local magistrates – can take weeks and even months.

The first priority is for basic maternity rights. But I believe we should also look at whether parental orders are sufficient. In parts of the US pre-birth orders are used. This is a binding contract signed before conception where the parents are the legal parents throughout, and it takes away a lot of the uncertainty experienced in surrogacy arrangements.

There may not be that many surrogate births now – there are probably up to 100 a year – but the number is growing as society is changing.

The European Court of Justice is set to hear the case of a British woman who had a baby through a surrogate but was refused maternity leave by her employer.

Pressure on the Government to right the obvious unfairness over maternity rights will only increase, and I hope my Bill today and the backing I have from MPs of all parties will hasten this necessary change in the law.

John Healey is MP for Wentworth and Deane

An e-petition, ‘Maternity rights for mothers of children born through surrogacy’, has been started and signed by nearly 1,500 people. Please click on the link to sign

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4 Responses to “Mothers who have babies through surrogates deserve equal rights”

  1. Nick says:

    Will that be for

    a) The egg donor
    b) The donor of the genetic material
    c) The sperm donor
    d) The surrogate
    e) The father
    f) The other father (if gay)
    f) The mother
    g) The other mother (if gay)

    All can be different.

    Why no mention of fathers? Oh yes, they don’t count. Just the cash cow to be milked.

  2. madasafish says:

    Two separate mothers should not have maternity rights for the same children..Since the Bill does not appear to address that issue…

  3. AmyB says:

    If I child is born and the mother giving birth decides to put that child straight up for adoption than that mother is still entitled to maternity rights as well as the mother who adopts that same child, giving rights to two mothers, this is the same thing!

  4. AmyB says:

    Also in reply to Nick, if a male or female gay couple was to have a child through surrogacy than the child would not be genetically both fathers or mothers leaving both fathers/mothers having to adopt the child and therefore one of the fathers/mothers being entitled to adoption rights.
    The law needs changing in relation to biological children of the intended parents being born through surrogacy as the intended parents cannot legally adopt their own biological children…

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