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Women who use surrogates in fight to claim maternity leave
Sophie Goodchild, Health and Social Affairs Correspondent27 Oct 2009
Ministers face a legal challenge over rules barring women who use a surrogate from receiving maternity pay.
Campaigners claim the authorities are discriminating against “rent-awomb” mothers and have submitted evidence to ministers warning against the practice. They are calling for a change in the law.
The Government published new guidelines on surrogacy last month which were aimed at improving the rights of surrogacy patients, but did not tackle maternity pay.
The current guidelines only allow women who undergo a successful pregnancy to paid leave. They get time off even if they are not the genetic parent.
But people who use a surrogate have no right to paid or unpaid leave to look after their newborn child.
Adoption leave is also unavailable, because it only applies where a child is newly placed by an adoption agency.
Fertility law firm Gamble and Ghevaert is writing to ministers demanding they tackle the problem.
Partner Natalie Gamble said surrogacy is still regarded as an “exotic rarity”, which means statutory maternity leave does not apply.
Ms Gamble said: “The lack of right to maternity leave is tied up with the fact the surrogate mother is regarded as the mother.
“In any other circumstances you would get maternity leave. Women aren't going to need a whole year. What would make sense is a system where you have some sort of sharing arrangement [for maternity leave].
“We also need to take account of our modern human rights and anti-discrimination laws which do not allow unfair treatment of minority groups, however small they are.”
More than 40 babies are born in Britain every year with the help of a surrogate. The majority are to women who are unable to carry their own baby for medical reasons.
There is opposition in Britain to surrogacy becoming a “commercial” transaction. Restrictions mean surrogates cannot be paid for their services, although they may receive expenses.
These restrictions have triggered a rise in couples going abroad. But foreign surrogacy can be fraught with problems and a baby can end up being “stateless”.
The surrogate mother also has the legal right to keep the child, even if it is not genetically related to her.
Surrogacy arrangements are not legally enforceable. This applies even if a contract has been signed and the expenses of the surrogate have been paid. In British law, the woman who gives birth is always treated as the mother.
I love being a mum but system is unfair'
Sharmy Beaumont had to take unpaid leave after she used another woman to carry her baby Isabelle, now five months.
The medical writer, 33, was born with a condition that affects one in 5,000 women and that means her womb cannot carry a child. Instead, she and husband John contacted Liz Stringer, 45, from Wales, after getting in touch with Surrogacy UK.
Mrs Beaumont, of Esher in Surrey, found out in her early twenties she could not give birth. She said: “I was really upset but at least we knew what the issue was and did not go through the heartbreak of IVF. We trusted Liz absolutely and it was a very emotional process.”
But Mrs Beaumont discovered she was not entitled to paid maternity leave. She says: “Being a mother is fantastic and I'm loving it. We see a lot of Liz and her family and I'm very grateful for what she did.
“My work have been understanding and have allowed me some leave to look after Isabelle.
"However, the fact that parents through surrogacy are not entitled to any maternity benefits to spend time with their babies is unfair and the Government has not recognised this.”
Reader views (8)
Just reading through other peoples comments, you can tell those effected by infertility and those that are close minded to something they do not understand. Infertility is soul destroying. Finding someone special enough to carry a gift for you is incredible. But the cost of surrogacy is high enough (nothing comes for free indeed Rogan!). I should not be punished for not being able to carry my own child. My eggs work fine and any child born of surrogacy would be 100% genetically my child. Women undergoing Surrogacy deserve the right to raise their child with the same financial help as everyone else. It's hard enough having to apply to adopt your own child without being discrimated against because you chose to bring a child into the world to love. People need to open their eyes beyond their own lives and see what amazing mothers these women could be if only given the help they need.
- Kylie, Wiltshire, UK, 03/02/2010 22:46
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'A mother is surely the person who actually gives birth to a child' - I think George from Cambridge needs to read a little bit about what surrogacy is before making sweeping statements like this.
- Robert, London, 28/10/2009 21:43
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Having a child is more than a choice. Why should those women who have already gone through the immense heartache of not being able to carry their own child be further punished by a society who is not prepared to let them have maternity pay but at the esame time considers a woman who is unable to have children, a failure.
- Susannah, Exeter, 28/10/2009 15:08
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I am a surrogate and I would wilingly give my IM (intended mother) a share of my mat leave. I'd just want the last few weeks off work as I did with my 2 and maybe a week or 2 after as you feel a bit sore! Other than that she could have it! Its a shame some people have no idea of the heartache of infertility or the great pain of feeling you cannot have time off to ajust to being a mother whether you carried the child or not. Some people need to think past themselves.
- Lisa, Aldershot, 27/10/2009 22:34
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You cannot make such a generalised rule. The mother is not always the person who gives birth to the child - that's the fundamental point behind surrogacy! Maternity leave is a right for women who have worked hard and have earnt the right to take paid time out to care for their child- this should be provided to all mothers, regardless of how their child arrived in the world.
- Kerry, London, UK, 27/10/2009 21:17
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Maternity leave for both parents is a huge burden to business and appears to have got out of hand.
A mother is surely the person who actually gives birth to a child, otherwise we will end up with a situation in which two women claim the right to maternity leave and that must not happen.
- George, Cambridge UK, 27/10/2009 16:38
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Having children is a choice, not a necessity. Nothing comes for free, including time off.
- Rogan, Irving, 27/10/2009 16:23
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My wife and I are expecting twins next year and this law affects us a lot. Unfortunately, this means that my wife will have to take 6 months off work - unpaid - to care for the children.
The law really needs to get changed asap!
- S, London, UK, 27/10/2009 13:16
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