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Do surrogate mums get parental leave?

What parental leave entitlements does a surrogate mother have?
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Do surrogate mums get parental leave?

Do surrogate mums get parental leave?

6 May 2021

What parental leave entitlements does a surrogate mother have?

Q Our HR department has had an approach from an employee (who is acting as a surrogate mother) enquiring whether there is an entitlement to unpaid parental leave under the National Employment Standards (NES).

Because of the unusual nature of the arrangement, the company is not sure whether unpaid parental leave takes this situation into account, as the employee will not be the primary caregiver after the baby is born.

Would a surrogate mother have an entitlement to unpaid parental leave?

The employee has been employed with the company for about three years.

A The unpaid parental leave provisions under the NES will apply to the employee for the period of the pregnancy and the birth of the child.

This means entitlements related to her pre-birth medical condition, such as access to special parental leave and transfer to a safe job, as well as a return-to-work guarantee, would be available to the employee.

If the employee takes unpaid parental leave and ceases to have responsibility for the care of the child, the employer may give written notice requiring the employee to return to work on a specified day.


The legislation

The Fair Work Act 2009 (s78) provides that the specified day:
  • must be at least four weeks after notice is given to the employee; and
  • if the leave is birth-related leave taken by a female employee who has given birth, it must not be earlier than six weeks after the date of birth of the child.

The specified return-to-work date could be discussed with the employee prior to the taking of parental leave.

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