Image: Pxhere

South Africa took a progressive step by legitimising surrogate parenthood with its Children’s Act. However, it somehow failed to provide for leave from work for the concerned parents to care for their infants.

This could change if the Labour Laws Amendment Bill of 2015 is accepted. The Bill proposes amendments to South Africa’s Basic Conditions of Employment Act, which regulates various types of leave.

Although the Bill is welcomed, there are a number of concerns pertaining to the duration and management of the various types of proposed leave that need to be urgently addressed – especially concerning the best interests of the child.

Dawn of a new era

Surrogate parenthood arises where one or two commissioning parents agree with another woman to carry a child for them, as they are medically incapable of doing so themselves.

The Children’s Act stipulates that after the birth of the child, the commissioning parties will become the legal parents of that child. The surrogate mother must hand over the child as soon as reasonably possible.

The surrogacy agreement is controlled by the high courts and needs to meet certain requirements. These include, among others, consent by all the parties, the use of the gametes of one or both of the commissioning parents, and that they should be unable to produce a child themselves. The requirements furthermore guard against commercial surrogacy and other prohibited practices.

A shortcoming exists in the law. Although the commissioning parents receive their newborns shortly after birth, they do not have access to particular leave from work to fulfil their parental obligations, like natural parents would.

This failure led to an important Labour Court decision in 2015. The matter involved a male employee in a same-sex civil union who had applied for maternity leave as his only recourse to properly care for the newborn that had been born to him and his partner through a surrogate agreement.

The employer denied him such leave, arguing that it applied only to pregnant, female employees. The employee claimed unfair discrimination based on gender, sex, sexual orientation and family responsibility.

South Africa’s leave regime

From the various types of leave available in terms of South Africa’s Basic Conditions of Employment Act, only two are arguably relevant to surrogacy: maternity and family responsibility leave.

However, maternity leave of four months is only available to pregnant employees to protect the health of both the mother and child before and after birth. The International Labour Organisation supports this notion. We submit that maternity leave is not accessible to parents in terms of a surrogacy agreement, given that they do not meet the requirements.

Maternity leave will naturally be available to a surrogate mother who bears the child, as she qualifies as a pregnant employee. We argue that, similarly to circumstances of a miscarriage or stillbirth noted in the Basic Conditions of Employment Act, the mother should only be entitled to six weeks statutory leave after the birth. 

Family responsibility leave, on the other hand, also provides for employees to take leave at the birth of their children in terms of the Act. This type of leave is not gender specific or based upon any health reasons. 

Needless to say, the duration of this leave is insufficient to meet the needs of the commissioning parents to care for the child. T

In light of the shortcoming identified by the Labour Court, the recent Bill proposes ten weeks of leave for one commissioning parent. It also proposes another ten days ordinary parental leave to the other parent, to be taken from the date of birth of the child.

It is deduced that this leave will be unpaid as the Bill provides, in the proposed section 26, for unemployment benefits to be claimed in terms of the Unemployment Insurance Act. It is argued that the disparity between maternity, commissioning and ordinary parental leave could open the door to possible claims of unfair discrimination. 

The way forward

Even though the conclusion of surrogacy agreements is acknowledged and regulated in South Africa, the country is lagging behind in addressing surrogacy-related issues in the labour market. Proper legislative intervention is needed to keep track of the changing values of society.

- The Conversation

The Conversation