By: Anthony Drake
Should surrogates and parents through surrogacy receive the same legal rights to leave and pay when their child is born?  In New Zealand, surrogacy is an altruistic arrangement on the part of the surrogate mother and it’s illegal to pay her more than her reasonable expenses.  So who gets entitlements under New Zealand’s statutory Parental Leave legislation – the mother giving birth to the child (the surrogate mother), or the carer who has ongoing responsibility for the child (the intended mother)?  And what about the partners of the birth mother or intended mother – what should they get? 

Surrogacy delivers new and interesting challenges and legal issues which have not previously been contemplated by our legislation.  In the EU, the law does not require that a mother, who has had a baby through a surrogacy agreement, be entitled to maternity leave or its equivalent.  Adoptive mothers are entitled to paid maternity leave of up to 14 weeks if the child is under the age of six and they meet the employment criteria.  In the UK, intended parents in a surrogacy arrangement are entitled to take shared parental leave for a year from the birth if both parents qualify and the parent taking adoption leave returns to work early or curtails (reduces) adoption leave.

Currently in NZ, the surrogate mother who gives birth is not entitled to any of the normal parental leave rights, while the intended mother is entitled to paid parental leave and extended leave as the primary carer of the child.  Under the Parental Leave and Employment Protection Act 1987, primary carer leave is available to female employees who are having a baby, or her spouse or partner if they have all or part of the birth mother’s parental leave payments transferred to them.  Employees who are going to have the primary responsibility for the care, development and upbringing of a child under six years old on a permanent basis (this may be through home for life or whangai, but it doesn’t include on a foster care or other temporary care basis) are also entitled to primary carer and extended leave.  If the employee has a spouse or partner, they need to choose who will be the primary carer. Primary carer leave starts on the due date or the date childbirth starts.

On the flip side, the Act provides that pregnant employees are entitled to up to 10 days' unpaid special level for reasons connected with pregnancy, such as attending scans and other medical appointments.  Special leave is, therefore, available to the birth mother, but not the intended mother.  It is reasonable to expect that the intended mother will also want to attend such appointments in a surrogacy situation, but the legislation does not currently provide for that. 
This raises some interesting questions.  Is it time that New Zealand considered the allocation of parental and other leave in cases involving surrogacy?  Should both women be granted paid leave? And would this create a doubling of the overall leave entitlement?  Approximately 35% of women give birth via caesarean, which can involve a recovery time of up to six weeks.  Even a straight forward and natural birth will require some recovery time.  To my mind some sort of allowance should be made for surrogate birth mothers recovering from the act of giving birth.
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