Man wins surrogate maternity leave case
Share this article:
Durban - The government and private businesses will have to rethink their maternity leave policies after a groundbreaking judgment ruling that surrogate and adoptive parents, including those in same-sex partnerships, have a constitutional right to the same pay and leave benefits as women who give birth.
Attorney Irvin Lawrence, of the law firm ENSafrica, who handled the matter in Durban’s Labour Court, said Thursday’s ruling by Judge David Gush was “clearly a precedent”, and would prompt a review of the maternity conditions in the Basic Conditions of Employment Act which were premised on the concept that only woman were caregivers of children.
The judgment could also have cost implications for government and private companies.
For his client, a government information technology specialist who, with his same-sex union partner became a parent through surrogacy, it marks the end of a battle against discrimination.
The employee, from Pietermaritzburg, may not be named because children born through surrogacy may not be identified by law. Evidence was that he and his partner had married in May 2010 and entered into a court-approved surrogacy agreement. As a primary care-giver, he applied for four months’ paid maternity leave, as per his employer’s policy.
Initially he got a flat rejection. The employer argued the benefit applied to women and offered him four days’ family responsibility leave.
After submitting a further, more substantial application he was granted two months’ maternity leave.
The employer said the four-month policy was made up of three parts – a four-week pre-partum period to prepare for birth, a six-week post-partum period for physical recovery from birth and two months to focus on caring for the child.
Surrogate and adoptive parents could only have two months’ leave and this was not discriminatory because this was irrespective of the sex or sexual orientation of the employee, the employer said.
In his ruling, the judge said this approach ignored the fact maternity leave was an entitlement not linked solely to the health and welfare of the mother, but also in the best interests of the child. “Not to do so would be to ignore the Bill of Rights and the Children’s Act.”
In the matter before him the agreement provided for the newborn child to be immediately handed to the commissioning parents, the applicant had been present at the birth and he would perform the role of the birth mother.
“In these circumstances I can see no reason why he is not entitled to maternity leave equal to that of natural mothers. Our law recognises same-sex marriages and regulates the rights of parents who have entered into surrogacy agreements.
“It is clear the employer’s policy discriminates unfairly,” he said, directing that it recognise the status of same-sex parties and the rights of commissioning parents in a surrogacy agreement. He ordered that the employer pay the employee for the two months’ maternity leave he was not allowed to take but stopped short of awarding damages.
Surrogacy expert and attorney Tracey-Leigh Wessels said: “It heralds a new chapter for the myriad commissioning parents who are faced with restrictive employment contracts.
“I know a number of commissioning parents who have encountered similar problems as the applicant and it is good to know it is a thing of the past.”
In an interview with The Mercury on Thursday, the employee said he was “terribly excited” by the judgment.
“We have embraced what the new South Africa and democracy has given us. We were able to get married. We were able to have our own child through the legal system. This was the last step that needed to be addressed and now there is a precedent.
“That was the objective of the process. We wanted to make sure that others were treated fairly and equitably. Employees need to know where they stand.
“When this was happening to us, my main concern was for our unborn child. I just didn’t know whether or not I was going to spend a week at home or how long I was going to be allowed to take care of him.
“My employer dragged it out and my attorney had to intervene several times.
“I felt so disrespected. Something that was so important to me was not getting the attention it deserved. For me this court victory is for others so they don’t have to feel like I did.”