Parental leave surrogacy: what surrogates and parents can claim

Parental leave is one of those practical issues that can be overlooked in the excitement and complexity of a surrogacy arrangement. Yet it matters enormously. Time away from work is needed for the birth, recovery, bonding, medical appointments, travel and the first intense weeks of caring for a newborn.

For surrogates, intended parents and a surrogate’s partner, the key message is simple: check leave entitlements before beginning a surrogacy journey, not after. The answer will not always be found in one place. It may depend on Commonwealth payments, workplace policies, an enterprise bargaining agreement, an industrial award, the state in which a person works, and whether the arrangement is domestic, altruistic, commercial or overseas.

Assumptions can be costly. Someone may expect paid parental leave, only to learn that the wording of their workplace entitlement does not cover their particular surrogacy arrangement. Prevention is much better than cure.

Commonwealth parental leave payments and surrogacy

A surrogate may be eligible for the Commonwealth parental leave payment. At the same time, at least one intended parent may also be able to receive Commonwealth support. In other words, the framework can recognise the very different roles involved in a surrogacy arrangement: the person giving birth and the person or people who will be raising the child.

The Commonwealth scheme is an important starting point, but it is not necessarily the complete answer. Eligibility requirements, work tests, income rules and payment settings apply, and these arrangements can change over time. Current information should always be confirmed directly through the Australian Government’s Parental Leave Pay guidance.

Commonwealth payments are generally made at a set government rate. Many employees earn more than that rate, particularly those in professional roles or public service employment. That is why workplace-funded paid parental leave can be just as important, and sometimes more important, than the Commonwealth payment.

Your award or enterprise agreement may be the deciding factor

Employment conditions are not uniform across Australia. A person’s real entitlement may be set out in an:

• Employment contract
• Workplace parental leave policy
• Modern award
• Enterprise bargaining agreement, or EBA
• Public sector industrial instrument

The wording matters. Some awards and agreements refer broadly to “parental leave” or “parenting leave” without mentioning surrogacy. That can leave room for uncertainty about whether the entitlement applies to a surrogate, an intended parent, or both.

Other instruments specifically refer to surrogacy. This is far better than silence, but the exact terms must still be read carefully. An entitlement may be limited by the type of surrogacy arrangement, whether the arrangement occurred in Australia or overseas, or whether a parentage order is required.

It is not enough to hear that a colleague received parental leave in a different workplace, state or family circumstance. Surrogacy leave is highly dependent on the exact instrument that applies to the employee.

Queensland public service arrangements

The Queensland Public Service awards provide a useful example of workplace provisions that specifically address surrogacy. They include express reference to surrogacy, rather than relying only on general parental leave terminology.

Importantly, the wording does not specify where the surrogacy arrangement must occur. That distinction can be significant for people considering an overseas arrangement, because a policy that simply recognises surrogacy may be more flexible than one that limits leave to a particular type of arrangement or court order.

However, an express reference should never be treated as an automatic answer. The complete award, policy and any current departmental guidance should be checked. Leave rules can be technical, and eligibility often turns on precise definitions.

Why New South Wales can be more difficult

New South Wales presents particular challenges. The New South Wales public service is Australia’s largest employer, and its surrogacy leave position has been framed around altruistic surrogacy and the ability to obtain a relevant parentage order from the Supreme Court of New South Wales.

For an intended parent in a domestic New South Wales surrogacy arrangement, this may be comparatively straightforward. The legal pathway and supporting documentation are often clearer.

For intended parents undertaking surrogacy overseas, particularly an overseas commercial arrangement, the position may be far more complicated. Leave eligibility may depend on obtaining an order that is not available in the circumstances, even where the intended parents are caring for the child from birth and are recognised as parents for other legal purposes.

This is where surrogacy law, family law and employment law can collide. A workplace policy may require a particular state parentage order, while federal family law may already recognise the intended parents in a way that means the New South Wales Supreme Court does not have jurisdiction to make the order being sought.

The result can be deeply frustrating: legal recognition in one context does not necessarily produce the document an employer requires for paid leave.

Parentage orders can affect leave

Many people understandably focus on parentage orders as a way of clarifying legal parenthood after surrogacy. But the practical impact goes further. A parentage order can affect dealings with government agencies, birth registration, travel arrangements and workplace entitlements.

In New South Wales, court developments have shown that parentage orders may be available in some overseas commercial surrogacy circumstances. The issue is not always whether an overseas arrangement is commercial or altruistic. It may also be whether the Supreme Court has jurisdiction to make the order at all.

Changes connected with the Allbring and Bessant decision illustrate why intended parents should not assume that a familiar legal pathway will apply to every case. Where the Family Law Act automatically recognises a person as a parent, the state court may not have jurisdiction to make an additional parentage order.

This can create an unintended workplace problem when an employer’s leave policy is drafted on the assumption that a Supreme Court order will be produced.

For a broader understanding of how orders and legal parentage can operate after surrogacy, see this guide to surrogacy and the Family Court.

Questions to ask before starting a surrogacy arrangement

Before committing to an arrangement, a surrogate, intended parent or surrogate’s partner should ask their employer or human resources team for the relevant written policies. It is sensible to obtain advice early, particularly where an overseas arrangement is being considered.

Useful questions include:

• Does the workplace policy expressly refer to surrogacy?
• Does it cover both surrogates and intended parents?
• Is leave restricted to altruistic surrogacy?
• Does the policy distinguish between Australian and overseas surrogacy?
• Is a court order required before paid leave will be approved?
• Which court order is required, and is it realistically available?
• Can a birth certificate, parenting documentation or other evidence satisfy the employer’s requirements?
• What Commonwealth payment may be available alongside employer-funded leave?

The answers should be obtained in writing wherever possible. A brief email confirmation from human resources can be invaluable later, particularly if staff change or a policy is interpreted differently.

Do not leave parental leave planning until the end

Surrogacy involves many moving parts: medical arrangements, counselling, legal advice, parentage processes, travel, citizenship and the practical needs of everyone involved. Parental leave should sit on that checklist from the beginning.

For intended parents, the question is not merely whether leave will be available. It is whether sufficient leave, paid or unpaid, will be available at the time the child is born. This is especially important in overseas arrangements, where travel timing can be uncertain and a child may need to remain overseas while nationality and travel documentation are finalised.

For surrogates, leave planning is equally important. Pregnancy, birth and post-birth recovery require time and support. The fact that a surrogate will not be raising the child does not mean that the surrogate’s employment entitlements should be treated as an afterthought.

Where an arrangement crosses borders, the legal and employment risks are even greater. Intended parents should have a clear legal strategy rather than relying on assumptions about how an overseas birth will be treated in Australia. A sound surrogacy back-up plan can help families prepare for unexpected legal, citizenship and travel complications.

Get clear advice early

Every surrogacy arrangement is different, and leave entitlements are often driven by small but crucial details. The type of arrangement, the location of the birth, the applicable workplace instrument and the available parentage orders can all change the outcome.

The best time to examine parental leave is before agreements are signed, treatment begins or travel is booked. Early advice provides options. Late advice may reveal that an anticipated entitlement is unavailable.

For advice about surrogacy, parentage orders and the legal issues that may affect parental leave, contact Page Provan Family & Fertility Lawyers.

About Stephen Page

Stephen Page is one of Australia’s leading surrogacy lawyers, a multi-award-winning accredited family law specialist and a recognised authority in Australian and international surrogacy law. Through Page Provan Family & Fertility Lawyers, he advises surrogates and intended parents on the legal, practical and family law issues that arise throughout a surrogacy journey.