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The global complexity of employee surrogacy benefits
17/05/2021
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Naomi Seddon
Naomi Seddon is a shareholder at Littler Mendelson, an international lawyer licensed to practice in Australia, New Zealand, and the United States, author, and thought-leader on women’s health issues and the workplace

Diversity and inclusion is not a term that we heard very often in the workplace context until the 2000s. With the start of the #MeToo movement in 2015, which brought issues of sexual harassment and assault of women to the surface, job candidates, employees, and even clients are now demanding more of organisations around inclusive and supportive workplace environments for women and minorities. As a result, many companies are starting to think outside the box when it comes to employee benefits and policies to attract a more diverse workforce.

Job applicants no longer care solely about the salary when considering opportunities. A number of studies undertaken over the last few years, including one in 2018 by global recruitment experts Korn Ferry, show that culture and values rank high on the reasons why employees look for new employment. There are many facets to culture and values, but both of these things have a direct correlation to an organisation’s policies, employee benefits, and diversity and inclusion strategies. As most organisations are now placing much more importance on attracting and retaining a diverse workforce, many are now considering how best to support women and minority workers through offering better flexibility and employee benefits including benefits focused on family planning, fertility, and childcare support.

For global employers that want to maintain a level of consistency across the organisation, this can be challenging at the best of times as the employment laws of one country to the next can vary significantly. However, when it comes to some of the less traditional employee benefits, such as fertility support and services including egg freezing and in-vitro fertilisation, adoption, and surrogacy benefits, it can be a minefield for employers to navigate.

Surrogacy, in particular, is a complex issue and tends to generate some strong opinions from supporters and opponents alike. One of the reasons for this is that there have been a couple of surrogacy cases reported where the intended parents have rejected the child after birth, including a case with an Australian couple that had twins to a surrogate in Thailand and decided to take only one of the children after the other child was born with a disability. Surrogacy cases continue to rise throughout the world and thousands of successful cases occur in the United States alone each year. Although the first successful gestational surrogacy case occurred in the US in 1985 it is still something that is widely misunderstood and fraught with legal complications as there are no internationally recognised laws for surrogacy.

Surrogacy laws from one country to the next (and even states or regions within countries) vary significantly. Although there are few statistics on surrogacy in most countries, it is popular in places such as the US, India, Ukraine, and Russia with many people travelling to these locations to undertake surrogacy due to the limitations on the practice within their own countries. In the US, California is considered to be the most favourable jurisdiction to undertake surrogacy as there is a comprehensive legal framework in place to manage cases effectively. Commercial surrogacy, where the surrogate is paid more than her expenses, is not permitted in countries such as Australia, the UK, Ireland, Denmark, and Belgium. Commercial surrogacy is also a crime in three Australian states and other countries such as France, Germany, Italy, Spain, Portugal, and Bulgaria prohibit all forms of surrogacy.

In many countries, surrogacy is not illegal but there is no legal framework to support it and children can end up stateless until the legal landscape can be navigated. For example, as the intended parents are seen as the legal parents in India, a surrogate baby born there will have no citizenship until the intended parents apply for citizenship in their own country. In the UK, however, the surrogate is recognised as the legal mother until a court order is obtained granting parental rights to the intended parents, while in many US states the intended parents are granted parental rights before the child is born.

As a result of the intricate web of complex surrogacy laws across the globe, while many employers may like to introduce surrogacy benefits for their employees, doing so requires work to ensure an employer does not end up in a situation where it is offering benefits that are in breach of local laws or worse, a crime. Because of the risk, it would be unwise for employers to attempt this without obtaining legal assistance from an international surrogacy expert. However, as surrogacy becomes more widely utilised, there are other implications in the workplace context as well even for employers who do not offer this employee benefit.

Despite all of the complexities, to an employee suffering with fertility issues, as well as members of the LGBTQ+ community, surrogacy benefits can be more valuable than any salary or benefit that an employer can offer

Not only is engaging in surrogacy a complex issue in and of itself, but once a person has a child born via surrogate that may not be the end of the legal issues. Just because a person has parental rights in the country where they have undertaken surrogacy, or even within the country where they reside, does not necessarily mean that those rights will be recognised in other parts of the world. This has been an issue that has been brought before the European Court of Human Rights for consideration on a number of occasions where the court has had to consider and balance the discretion of the countries to implement their own laws on this issue with the rights of children born via surrogate to ensure that they are not denied essential aspects of their identity.

For employers, this can become an issue akin to homosexuality and gay marriage which are also issues that can arise when employers request an employee complete an international assignment or short-term work travel to a country that either does not recognise the marriage under its local laws or where homosexuality is outlawed which remains the case in 70 countries. It is therefore a complex issue that is not only relevant to innovative employers looking to introduce more forward-thinking and inclusive benefits plans, but also one that can impact any employer with a need to send its workers on international business travel or work assignment; both an employee and an employer can find themselves tied up in a legal mess when applying for visas if the employee has a child that was born via surrogacy.

Importantly, this is not only an issue that will impact the parents but is something that can impact the child and may limit their ability to travel as well until they reach the age of maturity in a respective country. This is just one of the reasons why local legal reform is desperately needed in so many countries but also some international regulation and guidance on this issue as well.

Despite all of the complexities, to an employee suffering with fertility issues, as well as members of the LGBTQ+ community, surrogacy benefits can be more valuable than any salary or benefit that an employer can offer. For this reason, many companies, particularly within the tech industry, are choosing to find ways to introduce these types of fertility benefits to their employees and some are electing to do so through fertility benefit providers such as Carrot, a global fertility benefits provider that can assist companies with the implementation and management of these types of employee benefits.

Research conducted by the Reproductive Medicine Associates of New Jersey suggests that 68% of adults say that they would switch jobs to gain fertility benefits so it makes sense that more employers, particularly in industries where there is a strong demand for top talent, would consider these types of modern employee benefits programmes, especially when looking to attract more of a diverse talent pool. Many of these companies believe that it makes good business sense to do so despite the risks and complexities because not only does it distinguish them as an employer of choice that is attuned to the needs of its workforce, it also serves an additional purpose by demonstrating to clients that it has invested time in the development of a strategy and plan around its diversity and inclusion objectives. This is something that clients are increasingly demanding from their service providers at a board level and also within the wider organisation in almost every industry.

Given current trends and some of the social movements that we have seen globally over the last two years, it is likely this trend will continue to build momentum over the coming years. More employers across a broader range of industries may therefore find that they will need to start considering less traditional employee benefits and policies as a means to attract more diverse candidates in the future for this reason. It is therefore important that employers, and legal advisers who are assisting employers, recognise the complexities around this issue and take steps to manage those risks appropriately before introducing surrogacy or any other types of employee fertility or adoption benefits.