The recent judgement coming out of the Durban Labour Court regarding the affording of maternity benefits for surrogacy to a male applicant in a same-sex marriage who had, with his spouse entered into a valid surrogacy arrangement heralds the beginning of change to South Africa’s labour relations landscape in respect of a myriad of issues including the extension of basic parenting rights to commissioning and adoptive parents in surrogacy and adoption matters as well as recognition that maternity benefits are not confined to women.

The facts of the matter which came before Judge D. Gush in November 2014 was essentially that the applicant who was employed by one of the government agencies, applied for maternity leave. This was refused by the employer on the basis that their leave policy, which was essentially in line with the provisions contained in the Basic Conditions of Employment Act, only provided for female employees to access maternity leave benefits. As a side note it had been agreed by the commissioning parents prior to the birth of the child that the applicant would assume the primary care of the child hence the applicant’s request for maternity leave. Upon further negotiation, the employer relented and granted the applicant two months paid leave in line with its adoption leave policy, permitting the applicant to take a further two months unpaid leave. The applicant, aggrieved with the decision herein took the matter up with the CCMA and the matter eventually landed up before the Labour Court.

The position of the Court was essentially that the right to maternity leave as created under the Basic Conditions of Employment Act was not linked solely to the issue of the health and welfare of the child’s mother but by necessity needed to take into account the child’s constitutional right to family care or parental care as well as the constitutional imperative that in all matters concerning the child the child’s best interest test had to be applied. Applying this reasoning, the Court found that the employer’s maternity leave policy was discriminatory, and that the employer should have had regard to the principles underlying the Civil Union Act as well as the rights of commissioning parents in surrogacy agreements.

Judgement was accordingly granted against the employer.

The impact of the case law is essentially that employers can no longer hide behind gender-specificity nor restrictive definition of maternity leave. Further, a commissioning parent whether in a heterosexual or same sex relationship or marriage who is going to be the primary care-giver of the child irrespective of gender, qualifies for full maternity leave. The same reasoning would apply to an adoptive parent.

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