Do maternity and paternity rights for same-sex parents differ from heterosexual parents?

Figuring out whether or not to have children comes pretty high up on the grand scale of life decisions.

But it’s a choice more and more same-sex couples are making.

According to research from the Office of National Statistics (ONS), increasing numbers of same-sex couples are treading the, often rocky, road to parenthood.

At the moment it is estimated that there are 12,000 same-sex parents in the UK compared with 8,000 in 2011 and 4,000 in 2010.

Which is great news considering families in the 21^st century come in all different guises.

But while same-sex couples who wish to become parents are often focussed on the getting there, what about their maternity and paternity rights once they have a gurgling bundle of their own?

“Essentially, and rightly so, the maternity and paternity rights of same-sex couples are on an equal footing with heterosexual couples,” says David Ward, Employment Law Expert at Blacks Solicitors LLP

But that doesn’t stop same-sex couples feeling confused.

“We find that both same sex and male/female couples are confused about their legal rights as they are complex,” explains Beverley Sunderland, Founder and Managing Director of Crossland Employment Solicitors.

Beverley cites complicated legislation and the use of the same wording for the confusion.

“It is not immediately obvious that same-sex couples have the same rights because the language used in guidance is sometimes in terms of ‘mother and father’ with a footnote to say also available to same sex couples,” she explains.

For Andrew Spearman, Head of Family and Director of A City Law Firm, it’s lack of awareness that contributes to a cloak of confusion. “Whilst the rights are in place, we unfortunately see an ignorance to the rights, lack of clarity and/or anxiety of potential reactions by employers which often means employers and employees alike fail to fully utilise these benefits,” he explains.

To help, we’ve waded through the bumpf to bring you a myth-busting in-the-know guide to the maternity and paternity rights of same-sex parents…

Maternity rights for new mums are the same whether you’re in a heterosexual or same-sex relationship

“Generally speaking, maternity rights arise in a female same-sex relationship where one party to the relationship becomes pregnant,” explains Andrew Spearman. “The same maternity rights apply for the mother whether she is in a same-sex or heterosexual relationship.”

“This means that if she is an employee, she will (subject to satisfying all necessary eligibility criteria in terms of the latter, such as continuity of service) be entitled to protection from discrimination on the grounds of maternity and both maternity pay and maternity leave as applicable.”

You don’t have to be male to take paternity leave

According to Andrew Spearman an employee can benefit from paternity rights/adoption rights whether they are male or female, whatever their sexual orientation, too.

“It is a common mistake to make to assume that paternity rights are just for male partners,” he explains. “For example where the child’s biological mother is a party to the relationship, the other party, whatever their sex will take paternity leave subject to the same usual eligibility criteria.”

“Where a party to the relationship adopts, the adopter takes adoption leave and the partner takes paternity leave. The law has adapted over time to suit all kinds of family relationship as there should of course be no bar to employees benefitting from equal rights due to their sexual orientation,” he adds.

How do maternity/paternity rights differ if same-sex couples are adopting?

Adoption leave mirrors maternity leave. “If two people are adopting (whether they’re a heterosexual or homosexual couple), only one person is entitled to adoption leave – “the adopter”. The other person can be entitled to paternity leave,” Beverley Sunderland explains.

“Adoption leave (including for surrogacy) can only be taken within 14 days of the child being placed (or 28 days of the child arriving in the country for foreign adoptions), whereas maternity leave can start up to 11 weeks before the baby is born,” she adds.

Same-sex parents and surrogacy

“Any intended parents who engage in surrogacy in the UK are entitled to the leave comparable to adoption leave,” says Andrew Spearman. “For all surrogacy arrangements, the employer’s staff handbook should reflect the same adoption criteria applying to intended parents but with a few additional criteria, in that you must: have worked continuously for your employer for at least 26 weeks by the 15th week before the baby’s due, be able to show your intention to apply for a parental order, expect the order to be granted, either by obtaining a solicitors’ letter or demonstrating to your employer your eligibility.”

All the other conditions for qualifying for pay and leave are the same as for adoptive parents, Andrew Spearman adds.

What is a ‘Parental Order’?

“If a same-sex couple enters into a surrogacy arrangement, they may be able to apply for what is known as a ‘Parental Order’ to enable them to be treated as the parents of the child in future,” explains David Ward.

For this, one person in the relationship must be the biological parent of the child, and the other must be in a civil partnership or living as their partner. “Parents who then have a Parental Order will be allowed to take adoption leave/paternity leave (or shared parental leave) in just the same way,” he adds.

Parental rights in the case of egg/sperm donors

Every year around 3,500 children are conceived with the help of a donor, but does having children in this way affect maternity and paternity rights? The short answer is no.

“For donor sperm or eggs there will still be a pregnancy and so maternity/paternity/parental leave and shared parental leave provisions apply, there is no requirement that it cannot be taken because it is not both partners’ DNA,” explains Beverley Sunderland.

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