Baby loss and miscarriage support in Australia: leave and help

Two provisions, and which applies turns on a definition

Australian law after the loss of a baby is set out in the Fair Work Act, and the entitlement you have depends on whether the loss meets the Act's definition of a stillbirth. That definition is precise, and it is the hinge of this whole page.

Section 77A(2) defines a stillborn child as a child who weighs at least 400 grams at delivery or whose period of gestation was at least 20 weeks, who has not breathed since delivery, and whose heart has not beaten since delivery.

Stillbirth: your parental leave is preserved

Section 77A(1) is the key provision. If a child is stillborn, and an employee would have been entitled to unpaid parental leave that is birth-related leave had the child been born alive, then the employee is taken to be entitled to that unpaid parental leave despite the stillbirth.

Read plainly: the 12 months of unpaid parental leave under section 70 remains available. Nobody can require you to return to work on the basis that there is no baby to care for. The entitlement is preserved by statute, not left to the employer's discretion.

Employer-funded paid parental leave is protected too

The Act adds a further protection at section 333X. An employer generally must not refuse or cancel employer-funded paid parental leave for an employee because the employee's child is stillborn or dies. If your workplace offers its own paid parental leave scheme on top of the government payment, that scheme cannot simply be withdrawn after a loss.

Miscarriage: two days of compassionate leave

Section 104 entitles an employee to two days of compassionate leave for each permissible occasion. The permissible occasions include a child being stillborn, where the child would have been a member of the employee's immediate family or household had the child been born alive, and the employee, or the employee's spouse or de facto partner, having a miscarriage.

Two carve-outs sit in subsection 104(2). The miscarriage provision does not apply if the miscarriage results in a stillborn child, because that situation is covered by the stillbirth limb instead. And it does not apply to a former spouse or former de facto partner.

The Fair Work Commission's summary of the National Employment Standards records compassionate leave as two days, unpaid for casual employees. For permanent employees it is paid.

Two days is a small entitlement after a miscarriage, and it is worth saying so. In practice most people also use paid personal or carer's leave, which the National Employment Standards set at ten days per year and which covers an employee who is unfit for work because of illness or injury, with medical certification where the employer asks for it.

The payment choice after a stillbirth

Services Australia's guidance on Parental Leave Pay states that if your baby was stillborn you may get either Parental Leave Pay or the Stillborn Baby Payment, and it publishes information to help you decide between them. They are alternatives, not additions.

The right answer depends on your circumstances, including whether you meet the Parental Leave Pay work test and income test and how many days you would receive. For a child born from 1 July 2026 the family can receive up to 130 days of Parental Leave Pay, or 26 weeks based on a five-day week, at $200.94 a day in the 2026-27 financial year. Weigh that against the Stillborn Baby Payment before choosing, and ask Services Australia to talk it through rather than deciding under pressure.

Award and agreement terms can be better

The National Employment Standards are a floor, not a ceiling. Modern awards, enterprise agreements and individual contracts can and often do provide more generous bereavement or compassionate leave than the two-day statutory minimum, and public sector employers in several states have specific pregnancy loss provisions. Check your award or agreement before assuming two days is all that is available. State and territory laws that provide more beneficial entitlements are also not excluded by the federal scheme.

Returning to work, and the flexible work request

Coming back after a loss is its own problem, and the Fair Work Act's flexible working provision is available to you. Section 65 lists being a carer, having a disability and experiencing certain circumstances among the qualifying grounds, and a request for changed hours, patterns of work or location can be made in writing. Where a request is refused and you believe it was not handled properly, the Fair Work Commission has a dispute pathway for flexible working arrangements.

It is also worth telling your employer in writing what you do and do not want colleagues to be told. That is not a legal entitlement, but stating it early prevents the situation where you return to a desk covered in cards or, equally painfully, to nobody mentioning it at all.

Support, and what to ask the hospital

Ask the hospital about its social work department and any perinatal bereavement service; most Australian maternity units have both, and they can help with practical matters including registration of a stillbirth, which is required in every state and territory, as well as with grief support.

Your GP is the route to a mental health treatment plan, which subsidises sessions with a psychologist through Medicare and is worth asking about early rather than waiting to see whether things settle. Perinatal mental health services and national helplines operate across Australia and your GP or the hospital social worker can direct you to the ones in your state.

What to do, and in what order

If the loss meets the Act's stillbirth definition, tell your employer in writing that your unpaid parental leave entitlement is preserved under section 77A and that any employer-funded paid scheme is protected under section 333X. If it was a miscarriage, claim the two days of compassionate leave and use personal leave beyond that if you are unfit for work. Check your award or enterprise agreement for anything better. Contact Services Australia about the choice between Parental Leave Pay and the Stillborn Baby Payment. And ask the hospital social worker for bereavement support before you leave.