South African labour legislation does not make specific provision for paternity leave or maternity leave for gay men. Where does this leave gay men who have assumed the role of mother to their new-born infant through surrogacy or adoption?
This question was answered last year in a ground-breaking judgment. The Labour Court in Durban said it was discriminatory to refuse paid maternity leave to a gay man who became a parent through surrogacy. The father challenged his employer's refusal to grant him four months' paid maternity leave on the grounds that he was not the child's biological mother. The man married his partner in a civil union and the couple then entered into an agreement with a woman to carry a baby for them.
In anticipation of the birth, the man applied to his employer for paid maternity leave of four months. The employer refused on the grounds that its policies and the Basic Conditions of Employment Act made provision for maternity leave only for female employees and were silent on leave for people who became parents through surrogacy. The father said these terms constituted discrimination against gay men. The employer denied its policy was discriminatory and said maternity leave was due to, and a right of, only female employees.
The Labour Court found that the employer’s contention ignored the fact that the right to maternity leave cited in the Basic Conditions of Employment Act was not linked solely to the welfare of the child's mother but took into account the interests of the child.
Given the circumstances where the couple agreed that the man would assume the role of mother by taking immediate responsibility for the child after birth, the Court found that there is no reason why an employee in the position of the applicant should not be entitled to maternity leave and, equally, no reason why such maternity leave should not be for the same duration as the maternity leave to which a natural mother is entitled. The judge ordered the employer to recognise the status of parties to a civil union and prohibited discrimination against couples who had become parents by entering into a surrogacy agreement.
The decision is welcomed by couples in same-sex unions and may even open doors for heterosexual men, who are primary care-givers of new-born infants to argue that they be entitled to paid maternity leave.
Author: Aruna Chetty (Associate) - (Employment & Labour Department), PMB Office
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