Cape Town - An information technology specialist who, with his same-sex union partner, became a parent through surrogacy, has launched a court challenge to rules which “unfairly discriminate” by only allowing women who give birth a full four months’ maternity leave.
The outcome of the case, presently before Judge David Gush in Durban’s Labour Court, could set a precedent for maternity leave policies regarding both surrogacy and adoption. The employee cannot be named because the law precludes the identification of a surrogate child.
According to papers before the court, the employee married his same-sex partner in May 2010 and the following year entered into a surrogacy agreement - ratified by the high court - which would see them become the legal parents of the child, to be born in November 2011.
In anticipation of the birth, and as he was to be the primary care-giver, he applied for four months’ maternity leave in terms of his employer’s leave policy. But he was turned down, his employer contending that the benefit applied only to women. He then submitted a substantial application for leave to the head of human resources. This led to him being treated as an “adoptive parent” and being granted two months’ maternity leave.
He says this is unfair discrimination on the grounds of gender, sex, family responsibility and sexual orientation. “It is discrimination against biological and commissioning parents,” his lawyers argued.
He wants the court to direct the employer to refrain from this unfair discrimination. He also wants two months’ pay and damages of R400 000.
But the employer has argued that its maternity leave policy is not discriminatory and that only women who give birth qualify for four months. This period includes a prepartum period of four weeks before the due date, and a six-week post-partem period to allow the mother to recover from the physiological effects of childbirth.
The remaining period was to allow the person to care for the newborn child.
“It guarantees for adoptive parents, now extended to include surrogate parents, a maternity benefit of two months leave on full pay,” the employer argues.
“The claim that there is discrimination on the basis of sexual orientation and sex is entirely baseless.”
Judgment has been reserved.
Cape Times