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The Government announced in the Queen's Speech in May its plan to reform parenting leave. It described current rules on maternity and paternity leave as "outdated", given the assumption underlying them that mothers would undertake most childcare responsibilities.
To address this rather obsolete view of family life, and better meet the needs of modern parents, the Government is proposing a new flexible parental leave arrangement. Details are still vague about how this system will work practically, but options might include allowing mothers to return to work and transfer up to nine months of a year's parental leave to fathers.
The proposals have incited the inevitable response from some business leaders, namely that to accommodate modern families' needs in this way will more or less bring about the downfall of capitalism. The Director General of the British Chambers of Commerce warned companies would face "endless" legal challenges and grievances resulting from "gender-neutral" parental leave. The Institute of Directors' response is more grounded in reality: "Allowing parental leave to be shared is a sensible proposal that we welcome - it makes sense as an arrangement to give families more flexibility in how they use their allowance".
That must surely be right; the equalisation of parenting leave entitlements between mothers and fathers is long overdue. The proposal will also go some way to narrowing the gender pay gap that has to date been largely a product of mothers leaving the workforce for long periods of maternity leave.
But is it enough? It is all very well to recognise that the paradigm in the nuclear family has shifted, so that we can no longer assume that fathers will continue to work and mothers will stay home to care for the children. However, the paradigm has shifted further than that. In late 2011, the Centre for the Modern Family published its first report, "Family", analysing demographic and attitudinal data regarding the shape and composition of the modern British family. Of the 3,000 respondents, 84% identified their families as not being "traditional", where the definition of traditional was two married parents living together with two or more children. Half agreed that society was generally out of date in its view of the family. 59% recognised same-sex couples as constituting families.
This research is consonant with what we are seeing in practise. Increasingly my cases involve alternative families (not a label I particularly like, incidentally, but I haven't yet thought of a substitute), and issues concerning their children. For obvious reasons, those children will have joined their families through non-traditional arrangements: fostering or adoption; a conception agreement between friends; IVF; surrogacy, etc.
Because alternative families do not conform to the conventional father / mother model of parenting, they will not benefit from the Government's planned reforms of parenting leave.
Surrogacy provides the starkest illustration of how this ignores alternative families. Many maternity rights are only available to birth mothers. A woman who has a child through a surrogacy arrangement who is not the birth mother will not be entitled to statutory maternity leave or maternity pay. Nor will parents of a child born through surrogacy be entitled to statutory adoption leave. A father of a child born via surrogacy might just get home under the definition of "ordinary paternity leave", and be able to enjoy as much as two whole weeks off work with his baby. This only applies if he is recognised as the child's legal father, however, which will not be the case in all surrogacies. Particularly fortunate fathers of children born via surrogacy might even manage to qualify for additional paternity leave and pay - if they do, they will walk away with (the lower of) £135.45 a week or 90% of the father's average weekly earnings. It is some very modest consolation that at least the parents of a child born via surrogacy will be eligible to apply for parental leave (unpaid) or request flexible working.
An attempt to address the plight of working surrogate parents came earlier this year, in the form of a Private Member's Bill, the Surrogate Parents (Leave, Pay and Allowance Arrangements) Bill 2010-12. The Bill was introduced in April 2012 under the "Ten Minute Rule". It sought to equalise leave, pay and allowance arrangements for parents of children born to surrogate mothers with those of "traditional" parents. Unfortunately, the Bill failed to complete its passage through Parliament before the end of the session, and the suggested reforms have not been re-tabled.
Nevertheless, we might be inching towards some improvements to address this inequality. The question of paid parental leave for parents of children born by surrogacy was not included in the Government's "Consultation on Modern Workplaces". However, Norman Lamb MP (the Minister for Employment Relations, Consumer and Postal Affairs) confirmed earlier this month that the Department for Business, Innovation and Skills is aware of the issue. He said it "will be looking into the possibility" of providing leave and pay for parents in surrogacy cases.
And in December 2011, an English Employment Tribunal referred to the ECJ questions about whether EU maternity and discrimination law protected a woman who became a mother through surrogacy (CD -v- ST - ET/2505033/11). A decision from Luxembourg is awaited.
So, progress, but painfully slow progress. In its recognition of and protection of families in their many forms, the law is at least a whole generation behind society's mores. Whilst undoubtedly unintentional, the current failure to provide anything but bare bones rights to working parents whose child is born through surrogacy is positively discriminatory against LGBT families. It is those families who are more likely to rely on surrogacy arrangements to have children. It is the parents of those children who must struggle to balance work and family commitments because the safety net employment rights many take for granted are denied to them. Is it defensible that a parent's entitlement to paid time off work to care for a new child remains aligned to gender and gestation? The answer must surely be no.
I suggest a neater reform is to abandon the maternity / paternity labels altogether. In their place ought to be an entitlement to paid parental leave, which may be shared or transferred between a child's parents, irrespective of whether they are mothers or fathers. Only by ignoring the old-fashioned gender labels and the largely irrelevant detail of the mechanics of how a child is born can we truly start to provide a parental leave scheme that is fair and which accommodates modern families, and the many different shapes they take.
He works exclusively in the field of family law, and with a particular emphasis on cases involving children. His expertise ranges from domestic cases involving disputes as to residence, contact and/or the attribution and exercise of parental responsibility all the way through to transnational cases that have raise extremely complex issues of private international law.
Duncan is dual qualified in Australia, and is a member of Resolution's International Committee.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.
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