The Scenario

Our HR department has been approached by an employee who is acting as a surrogate mother. She has asked whether she is entitled to unpaid parental leave under the National Employment Standards (NES). The company has not encountered this situation before and is unsure whether the entitlement applies, given that the employee will not be the primary caregiver once the baby is born.
 

Surrogacy and employment

A surrogacy arrangement in Australia is legal, provided no financial transaction takes place between the parties. However, from an employer’s perspective, the arrangement is a private matter and would not impact the employee’s employment entitlements.
 

Unpaid parental leave – National Employment Standards  

Birth-related leave
The employee may apply for unpaid parental leave, provided they comply with the necessary notice and evidence requirements under the Fair Work Act. Parental leave includes birth-related leave and must be associated with the birth of a child to the employee.  

Parental leave under the National Employment Standards also provides the following related entitlements:  

  • Unpaid special maternity leave. 
  • A right to transfer to a safe job in appropriate cases or take paid no safe job leave. 
  • Consultation requirements, and 
  • A return-to-work guarantee 

 

Post-birth leave

The National Employment Standards do not provide a minimum period of unpaid parental leave to be taken after the birth of the child. However, the Fair Work Act (s 78) provides that when an employee ceases to have responsibility for the care of the child, the employer may give the employee written notice requiring the employee to return to work on a specified day.  

If the leave is birth-related leave by a female employee who has given birth, the specified day must not be earlier than six weeks after the date of birth of the child.

The specified return-to-work date could be discussed in consultation with the employee before taking parental leave. 

The National Employment Standards stipulate that an employee returning from unpaid parental leave is entitled to return to the position held immediately before commencing that leave. Where that position no longer exists, it must be a position for which the employee is qualified, and which is nearest in status and pay to the pre-parental leave position.
 

National Paid Parental Leave Scheme

In some cases, a birth mother may be eligible for National Paid Parental Leave even if she is not the primary carer. 

This could occur if the mother is unable to care for the child due to illness, or if the birth mother is in an adoption or surrogacy arrangement. 
 

Key takeaways

A surrogate may be entitled to unpaid parental leave if they meet the eligibility criteria under the Fair Work Act, particularly in relation to their responsibility for the care of the child. Employers should assess each case individually and seek legal advice if needed.