Unpaid parental leave is part of the National Employment Standards (NES). Where there is a surrogacy arrangement, an eligible employee is entitled to 12 months of unpaid parental leave if:

• the leave is associated with the birth of a child of the employee or the employee's spouse or de facto partner; and
• the employee has or will have a responsibility for the care of the child.

See Parental leave & related entitlements for more information.

Surrogate parents

In this article and in relation to the parties involved in a surrogacy arrangement, the term ‘surrogate parents’ refers to the person who is pregnant and gives birth to a child, and their spouse or de facto partner.

Surrogate parents are entitled to unpaid parental leave and related entitlements under the NES if they meet the eligibility requirements. This includes any entitlements that may apply while the surrogate parent has responsibility for the care of the child. For example, an eligible pregnant employee may take unpaid parental leave during the period that starts 6 weeks before the expected date of birth of the child.

If a surrogate parent is on unpaid parental leave and no longer has responsibility for the care of the child, their employer may require them to return to work on a specified day. The employer must provide at least four weeks’ notice in writing of the requirement to return to work. However, if the employee is the person who gave birth to the child, the day their employer requires them to return to work cannot be earlier than six weeks after the date of birth of the child.

Intended Parents

In this article, the term ‘intended parents’ refers to a person and their spouse or de facto partner, who enter into a surrogacy arrangement with another person who will carry a child on their behalf.

From 1 July 2023, following changes to the Fair Work Act, it is the FWO’s view that intended parents may become entitled to unpaid parental leave and related entitlements under the NES when they become the legal parent of a child born to a surrogate. Depending on the laws that apply in the relevant state or territory, this may occur, for example, following an order from an appropriate Court that a child is the child of the intended parent or parents. The intended parent or parents will also need to have responsibility for the care of the child at that time.

Unpaid parental leave may commence at any time during the 24-month period starting on the date of birth of the child, however it must also end during that 24-month period.

Paid parental leave

For information about the Australian Government's Parental Leave Pay scheme and entitlements for both surrogate and intended parents, see Paid parental leave.