Q. Our HR department has been approached by an employee who is acting as a surrogate mother. She has enquired whether she is entitled to unpaid parental leave under the National Employment Standards (NES).  
  
This is a situation the company has not previously encountered. The company is not sure whether unpaid parental leave applies as the employee will not be the primary care-giver when the baby is born. The company also has concerns regarding the legality of any surrogacy arrangement in Australia. 
  
In this circumstance, would a surrogate mother have an entitlement to unpaid parental leave? 

 

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

 

Unpaid parental leave under the NES  

Under the Fair Work Act 2009 (Cth), eligible employees are entitled to up to 12 months’ unpaid parental leave. To qualify, an employee must have completed at least 12 months’ continuous service, and comply with notice and evidence requirements. 

 

Entitlement for a surrogate (birth mother)

A pregnant employee is entitled to unpaid parental leave in connection with the birth of a child. This includes an employee acting as a surrogate (birth mother), even if she does not intend to remain the child’s primary carer after birth. This is because the entitlement includes birth-related leave, not just caregiving leave.

 

Duration of leave and return to work

The NES distinguishes between birth-related leave, and leave based on ongoing care responsibility. Where an employee ceases to have responsibility for the care of the child, employers may require the employee to return to work by giving written notice (Fair Work Act, s.78). However, for a birth mother, the return date must not be earlier than 6 weeks after the birth. In practice the length of leave should be discussed and agreed in advance, where possible.

 

Other related NES entitlements

Employees accessing parental leave may also be entitled to:

  • unpaid special maternity leave

  • transfer to a safe job or “no safe job” leave

  • consultation requirements during leave

  • a guarantee of return to work

 

On return, the employee is entitled to:

  • their pre-leave position, or

  • a comparable role if that position no longer exists

 

Government Paid Parental Leave scheme

Under the Australian Government Paid Parental Leave (PPL) scheme, eligibility depends on factors such as care of the child and income and work tests.

In surrogacy arrangements the intended parents are typically eligible for payments however, a birth mother (surrogate) may be eligible in limited circumstances. 

 

Bottom line 

A surrogate (birth mother) is entitled to unpaid parental leave under the NES, provided eligibility requirements are met. The entitlement arises from the birth of the child, not ongoing care. 

However, leave may be shortened once the employee no longer has responsibility for the child. A minimum 6-week post-birth period applies before a return to work can be required.

Employers should manage these situations sensitively, ensuring compliance with the Fair Work Act while supporting the employee’s health and recovery.