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Tuesday, January 27, 2015

Surrogacy: The difference a due date makes

The UK Government has finally changed the law to allow parents of children born through surrogacy the same rights to leave and pay as other parents. However, rather than bring the new law into effect immediately, the Government has only applied it to babies 'whose expected week of birth begins on or after 5 April 2015'. This presents some problems, not least because, as I describe below, the difference in employment rights for intended parents is vast.

Some couples I have advised find themselves in the situation of one day having the benefit of the new law and then a few weeks later having that option removed. A second scan, for example, changes their baby's due date from 7 April 2015 to 2 April 2015. Suddenly, their employer is no longer obliged to allow them any leave to care for their newborn child (and all the added benefits, such as keeping their job open, that other parents enjoy).

A genetic father is arguably entitled to two weeks paternity leave, but cannot take advantage of additional paternity leave unless the surrogate fulfils certain conditions about when she terminated her maternity leave. Other than that, parents of children born through surrogacy go from having the same rights as other parents to having at best an entitlement to discretionary unpaid leave (known currently as parental leave) for 18 weeks only.

Some intended parents are told by their employers they are only able to take annual leave, giving them a matter of weeks to care for their newborn child before having to return to work. The impact of a change of due date around the beginning of April is therefore huge, not only on the parents of children born through surrogacy, but also on the child.

I am not a scientist, nor a healthcare professional of any kind, but my own experience has taught me due dates are not always accurate. Neither of my children were born remotely close to their due dates and would be considered late term. I have also been told by couples that despite being very sympathetic, midwives (who agree due dates are not that reliable) say they are unable to change an updated due date following a scan.

A little internet research has lead me, and couples I have spoken to, to see that there are a number of different methods used to estimate a baby's due date. As a rule of thumb, women are told their due date is 40 weeks from the first day of their last period, but this based on an assumption of every woman having a 28-day cycle and ovulating on the 14th day of her cycle. This method may be used to give an initial due date but ultrasound scans may then alter the date. There is a difference of opinion as to whether scans performed later into the pregnancy (during the second and third trimester) should lead to a change in the due date, and this decision may depend on the size of the discrepancy between the estimated due dates.

What does seem to be clear is that the due date is an estimate only, borne out by statistics which show only a very low percentage of babies are born on their due date. I have advised intended parents to talk through this issue with their midwives and doctors, but often parents are only aware of the issue after the due date has changed - and this could leave healthcare professionals in a difficult position if they are asked, for example, to change a due date that has been written on a MATB1 form.

My view remains that the current law, which provides little or nothing by way of employment rights for parents of children born through surrogacy, may be unlawful. That said, bringing a successful legal challenge is difficult, not least due to the costs involved and the inherent risks in litigation. Thankfully many employers are sympathetic and forward thinking, and after brief negotiation agreements can be reached. Sadly this is not always the case and the impending change in the law now poses a new problem for intended parents.

Bring on 5 April 2015 and the start of proper equality for all parents and their newborn children!


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