The Government has made amendments to ensure statutory paternity leave provisions apply cleanly in parental order (surrogacy) cases. The Employment Rights Act 1996 (Application of Section 80B to Parental Order Cases) (Amendment) Regulations 2026 were made on 9 March 2026 and took effect from 10 March 2026. The instrument was approved by both Houses under the affirmative procedure. (hansard.parliament.uk)
The Regulations update how section 80B ERA 1996 (paternity leave: adoption) is applied in parental order cases by amending the 2014 principal regulations (S.I. 2014/3095). This aligns the surrogacy route with recent statutory changes to section 80B made by the Paternity Leave (Bereavement) Act 2024 and by the Employment Rights Act 2025. (legislation.gov.uk)
A new definition is inserted for “primary parental order parent”. In plain terms, this is the intended parent who elects to be the child’s primary carer and who either already has a parental order under section 54 of the Human Fertilisation and Embryology Act 2008 or intends to apply for one within six months of birth. The election is by agreement between the two intended parents that one, and not the other, will be the primary carer. (legislation.gov.uk)
The legal effect mirrors the 2024 bereavement amendments to section 80B. Where the primary parental order parent dies, an employee who meets the statutory conditions may take paternity leave to care for the child. The framework also allows regulations to preserve entitlement in tightly defined circumstances even if the original purpose of the leave cannot be fulfilled (for example, if the child dies or the parental order application does not proceed). (legislation.gov.uk)
The instrument’s commencement means employers should treat qualifying parental order cases in the same way as adoption cases under section 80B when assessing paternity leave requests following a bereavement of the primary carer. This closes a technical gap so that surrogacy-formed families access equivalent protection without relying on discretionary policy. (statutoryinstruments.parliament.uk)
For HR teams, the practical checkpoint is evidence and definitions, not onerous documentation. Employers may reasonably ask for written confirmation of which intended parent has been elected as the primary parental order parent and that a section 54 application has been made or is intended within six months. The definition and election mechanism are set out in statute; employers should avoid requesting medical information and should handle any court-related material with strict confidentiality. (legislation.gov.uk)
The changes sit alongside the wider family‑friendly programme under the Employment Rights Act 2025 and the forthcoming Bereaved Partner’s Paternity Leave Regulations 2026. Together, these measures modernise leave entitlements, with further commencement and consequential instruments expected across 2026. Organisations should monitor Department for Business and Trade updates and plan workforce communications accordingly. (parallelparliament.co.uk)
Geographic scope is Great Britain. Employment law is devolved in Northern Ireland, so these amendments do not extend there; stakeholders operating UK‑wide should check any local divergence before harmonising policies. (commonslibrary.parliament.uk)
In terms of immediate actions, employers should update paternity and surrogacy policies, manager guidance and HRIS workflows to reflect the new definition and to route bereavement cases under section 80B consistently for parental order families. Payroll and resourcing leads should ensure that entitlement calculations and cover planning assume availability of statutory paternity leave in these scenarios from 10 March 2026. (statutoryinstruments.parliament.uk)