Monday, 11 March 2013

Employment Rights for Surrogate Parents

In a recent blog, I wrote about changes to Indian law relating to surrogacy. 

Those changes, said to be justified from a child-protection perspective, positively discriminated against same-sex couples and single Commissioning Parents.

But the evolving legal landscape in India as far as surrogacy is concerned is not all doom and gloom.

On 5 March 2013, the Madras High Court held that a woman who had had a child through surrogacy was entitled to maternity leave.

The mother had had a child through a surrogate mother, with the consent of her husband, after her 20-year-old son was killed in a road accident in 2009.  She applied for maternity leave to look after the new born after the surrogate mother gave birth to a girl baby in February 2011.  She also applied to include the child under the family medical insurance scheme.

Her employer rejected the application, on the ground that there was no provision in the rules for granting leave to those who have a child through surrogacy. 

The High Court in Madras
The Judge, Justice K Chandru said, "Even in the case of adoption, the adoptive mother does not give birth to the child, but yet the necessity of bonding of the mother with the adoptive child has been recognized by the Central government, therefore, the petitioner is entitled for leave.”

"This court does not find anything immoral and unethical about the petitioner having obtained a child through surrogate arrangement," the Judge observed.

He directed the mother’s employer to grant her leave on the same terms applicable to those who had become parents via adoption.  He also directed the employers to add the child to the insurance scheme.    

Before we get too haughty, it is worth bearing in mind that this decision puts Indian Commissioning Parents in a better position than their UK counterparts.

Here, (at present) parents of children born via surrogacy are entitled to few of the employment rights available to many parents.  For example, there is no surrogacy equivalent in the UK to statutory adoption leave.  Many maternity rights are only available to birth mothers. A woman who has a child through a surrogacy arrangement who is not the birth mother will not be entitled to statutory maternity leave or maternity pay.  A father of a child born via surrogacy might just get home under the definition of "ordinary paternity leave", and be able to enjoy as much as two whole weeks off work with his baby.  This only applies if he is recognised as the child's legal father, however, which will not be the case in all situations.  Particularly fortunate fathers of children born via surrogacy might even manage to qualify for additional paternity leave and pay.  It is some very modest consolation that at least the parents of a child born via surrogacy will be eligible to apply for parental leave (unpaid) or request flexible working. 

Fortunately, change is a-coming.  On 25 February 2013, Parliament passed the Children and Families Bill at its second reading in the House of Commons.  The Bill, if enacted, will impact on various aspects of family life.  Relevant for present purposes is that it will give Commissioning Parents statutory employment rights for the first time.  They will be entitled to time off work to attend two antenatal appointments, statutory adoption leave and pay, and flexible shared parental leave and pay.

The Bill will now progress to Committee Stage, where it will be examined in detail.  The Committee will hear evidence from experts and interest groups.  Amendments will be discussed and voted upon.  Every clause in the Bill must be approved, changed or removed.  Once Committee Stage is finished, the Bill returns to the floor of the House of Commons for its report stage, where the amended Bill will be debated and further amendments proposed.

So, it will be a while still before we know whether the protections proposed for Commissioning Parents survive Committee Stage.  Here’s hoping they do, and that those parents get the rights and entitlements many others take for granted.  The progress of the Bill can be followed here.

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