UK paternity leave clarified for parental orders (2026)

If you’re growing your family through surrogacy, a small but important change in employment law kicked in on 10 March 2026. The Employment Rights Act 1996 (Application of Section 80B to Parental Order Cases) (Amendment) Regulations 2026 were signed by Kate Dearden, Parliamentary Under-Secretary of State at the Department for Business and Trade, on 9 March and now spell out who can take paternity leave in parental order cases and what happens if the named primary carer dies. Source: legislation.gov.uk (S.I. 2026/236).

Let’s start with the basics. In UK surrogacy, a parental order transfers legal parenthood from the surrogate to the intended parent(s) under section 54 of the Human Fertilisation and Embryology Act 2008. The application is usually made within six months of the day the child is born, and it confirms who the child’s legal parents are going to be.

The 2026 regulations introduce and define a new term for these cases: the primary parental order parent. This is the intended parent who elects to be the child’s primary carer and either already has a parental order granted on their application, or intends to apply for one with their partner within six months of birth and reasonably expects the court to make the order.

Electing to be the primary carer is about agreement between the two intended parents. In the wording used by government lawyers, Person A ‘elects’ if A and Person B agree that A, not B, will be the child’s primary carer. In practice, keep a clear written note of that agreement and share it with your employer when planning leave.

Why this matters for leave. Section 80B of the Employment Rights Act 1996 sets the framework for paternity leave. It has long covered adoption situations, and earlier regulations already applied it to parental order cases. The new amendment confirms that section 80B also applies expressly to primary parental order parents, removing doubt about eligibility in surrogacy arrangements.

There is also a clear bereavement safeguard. If the primary parental order parent dies, section 80B operates as if the surviving intended parent were the partner of the adopter. That means the survivor can take paternity leave to care for the child at a very difficult time.

The law plans for hard scenarios. Even if, after the death, the survivor does not apply for a parental order within the six‑month time limit, or an application is refused, withdrawn or otherwise ends once appeal windows close, the regulations can still entitle that employee to paternity leave. If the child dies, entitlement can also be preserved.

Timing and where it applies. These regulations were made on 9 March 2026 and came into force on 10 March 2026. They extend to England, Wales and Scotland. Northern Ireland has separate employment law, so check local guidance if that’s where you work.

What should employees do now? If you’re an intended parent planning a parental order, tell your employer early, say who will be the primary carer, and keep evidence of your intention to apply within six months. Normal statutory paternity leave rules on notice and eligibility still apply, so check your handbook or speak to ACAS.

What should schools, colleges and other employers do? Update your family leave policies and forms to name the ‘primary parental order parent’, brief line managers on surrogacy scenarios, and make sure bereavement guidance reflects these rights. HR teams should handle parental order cases in line with adoption‑style processes and timelines.

Two quick examples to make this real. Example one: Sam and Noor have a baby via surrogacy; they agree Sam is the primary carer and apply for a parental order within the six‑month window. Sam can use paternity leave under section 80B as the primary parental order parent.

Example two: If Sam, the primary parental order parent, sadly dies, Noor can still take paternity leave. That remains possible even if the parental order application does not go ahead or is refused, or if the child dies. The policy aim is to protect leave at moments when families most need it.

What this means: the government has named who counts as the primary carer in surrogacy‑related parental order cases and aligned paternity leave with adoption‑style protections, including in bereavement. It’s a precise fix, but for affected families and workplaces it adds certainty when timing and clarity matter most. This explainer is for learning and planning, not legal advice. Always check your organisation’s policy and official guidance.