Closing the gap: new parental leave for surrogacy cases in Malta

Parental leave surrogacy is addressed under a recent amendment to the Work Life Balance Regulations, coming into force on 21 June 2026. This amendment introduces new leave entitlements for employees recognised as parents through surrogacy abroad.

This development expands existing rights under the Work-Life Balance for Parents and Carers Regulations and addresses a gap in the current framework.

The key changes introduced by the amendment are outlined below.

Existing rights under the Regulations

To date, the Regulations address paternity leave, that is, the entitlement of fathers or equivalent second parents to ten working days of paid leave on the birth or adoption of one’s child. The Regulations also grant parental leave, whereby employees with twelve months continuous service are entitled to paid parental leave for two months, and a further period of two months of unpaid parental leave until the child is eight years old. Lastly, the current law regulates carers’ leave, being five unpaid working days per annum to provide personal care or support in case of an illness, and an employee’s right as parents or carers to request flexible working arrangements to the respective employer.

Parental leave for surrogacy: what the amendment introduces

By virtue of this new amendment, laid down in LN102 of 2026, every employee who:

(a) is recognised as a parent in a registered act of birth of a child born in a foreign country provided that the parent has not given birth to the child,

(b) where the act of birth is drawn up or registered by the competent authority in that country and,

(c) where the act of birth is subsequently registered in Malta in accordance with Maltese Civil Law, shall be entitled to an uninterrupted period of eighteen weeks of leave. Fourteen weeks are paid in full by the employer, with the remaining four weeks covered by Social Security.

When the leave may be taken

This period of leave commences to run either on the date of the birth of the child or up to two weeks prior to the expected date of birth of the child, at the discretion of the employee. Employees who make use of this leave will not be entitled to paternity/birth leave. Moreover, the leave does not apply in cases of adoption, since leave based on adoption is addressed in a specific law, the Adoption Leave National Standard Order.

Procedural requirements for employees

The law sets out the procedure for the enjoyment of such leave. Employees intending to make use of this leave must notify the employer in writing of the expected date of the birth of the child. The notification shall include an official document, translated in the Maltese or the English language and apostilled, issued by a clinic, healthcare institution or competent authority, which document shall expressly indicate that the worker is involved in the pregnancy as an eventual parent of the child. This notification, including the official document aforesaid, shall be given to the employer, if possible, at least four weeks before the expected date of the birth of the child.

Post-leave obligations and compliance

Immediately after the leave, the employee must, no later than two calendar months from their return to work, provide the employer with an authenticated copy of the act of birth of the child registered in Malta in accordance with the provisions of our Civil Code, which act recognises the worker as a parent. If the worker does not provide the authenticated copy, the worker is obliged to pay the employer a sum equivalent to the basic wages he received during such leave.

How leave is allocated between parents

In the case of a single parent, this leave shall be solely enjoyed by such parent. If there is more than one parent, it shall be enjoyed by the parent who is in employment in Malta. Where both parents are in employment, whether with the same or different employers, on the date of commencement of the leave, each parent shall be entitled to such part of the leave as they may agree between them by means of an agreement in writing. In the absence of such an agreement, each parent shall be entitled to nine (9) weeks of leave.

Employment rights and protections

The general principles surrounding leaves apply to this new leave as well, including continuity of employment and entitlement to all rights and benefits accruing to other workers of the same class or category of employment at the same place of work, such as the right to resume work in the same or analogous post. The only right which does not accrue is the right to any bonus or allowance related to performance or production.

Consequences of non-compliance

Where a worker avails himself of this leave but does not provide the employer with an authenticated copy of the act of birth of the child registered in Malta, and fails to resume work, or after having resumed work, abandons his employment without good and sufficient cause within two calendar months from the date of such resumption, the worker shall be liable, to pay the employer a sum equivalent to the basic wages he received during the leave.

Additional employee protections

The law also prohibits the employer from requiring the employee concerned to work overtime for a period of twelve months from the date of the birth of his or her child. The law also addresses the forms of redress available to the employee and imposes to this effect obligations on the employer when it comes to dismissal of the employee concerned.

Funding implications

It must be noted that since the 2nd of August 2022, the previously designated Maternity Leave Trust Fund was adjusted to include the Work-Life Balance entitlements set up by Legal Notice 201 of 2022. It is expected that the Work Life Balance Fund will cover reimbursement of wages during this leave.

Why this amendment matters

This amendment extends parental rights to a previously unregulated area of Maltese employment law, specifically in the context of surrogacy arrangements sought and finalized abroad. Indeed, parents, irrespective of the circumstances leading to the child’s birth abroad, will now be entitled to leave from work in the same way as adoption. One can argue that this new entitlement seeks to streamline even further the rights of employees, irrespective of diverse personal circumstances, at the place of work.

For a broader overview of employee rights in Malta, including probationary periods and employer obligations, see our previous insight on probation.