The woman has taken her case to the High Court arguing that she has been discriminated against under The Human Rights Act. She is arguing that the Government has failed to ensure respect for intended parents’ private and family life in surrogacy cases and that the Government has a positive obligation to avoid discrimination.
The woman and her husband conceived with the help of a surrogate and IVF last year. When she approached her employer for information about maternity rights and entitlement, her employer advised her that they were under no legal obligation to allow her time off work to care for her child, although they finally offered her a year’s unpaid leave as a gesture of goodwill.
The woman then contacted her local MP, who forwarded her request for help with obtaining paid maternity leave to the Secretary of State for Work and Pensions. The Department of Work & Pensions is understood to have refused to help saying that maternity benefits were related to “time off in the later stages of pregnancy and [to] prepare for, and recover from, childbirth in the interests of health and that of their baby”. The woman queried their response highlighting that leave is given for adoptive parents.
Sadly, having accepted the offer of unpaid leave, the woman was made redundant shortly after the birth of her baby son. As she did not qualify for maternity leave, her unpaid leave was not legally protected.
Parents of surrogate born children should have the same legal rights and protection as other parents. The current lack of legal protection can cause immense hardship for intended parents, who can face financial difficulties and worries about job security or even job loss. This sends out a worrying message that parents and children born through surrogacy are second class citizens and this needs to change. Current surrogacy laws in the UK are outdated and there needs to be a root and branch overhaul to make them fit for the twenty first century.