Labour Court Rules in favour of Constitutional Rights to Maternity benefits for surrogates and adoptive parents including those in same sex partnerships:

The Durban Labour Court on Thursday handed down a landmark judgement setting a new precedent in respect of maternity benefits and entitlements as per the BCEA which was previously premised solely on the basis that only woman were caregivers of children.

The applicant in this matter (who may not be named as a consequence of applicable legislation) entered into a court approved surrogacy agreement with his same-sex union partner whom he married in 2010. As a primary caregiver, the applicant applied for 4 months’ paid maternity leave as per his employer’s policy and which leave initially was rejected with the employer subsequently only offering the applicant 4 days’ family responsibility leave.

Upon a further application from the applicant, the employer granted 2 months’ maternity leave as the employer argued that part of maternity leave is for and in respect of a 4 week pre-partum period to prepare for birth as well as a 6 week post-partum period for physical recovery from birth and then ultimately 2 months to focus on caring for the child. The employer therefore argued that surrogate and adoptive parents could therefore only have 2 months’ maternity leave and that this could not amount to any form of discrimination.

The court expressed the view that the entitlement to maternity leave cannot solely be linked to the health and welfare of the parent but must also extend to the best interests of the child and that any failure to do so would be in contravention of the Bill of Rights and the Children’s Act. The court stated further that there should be no reason why the applicant is not entitled to maternity leave equal to that of natural mothers as our law recognises same-sex marriages as well as regulates the rights of parents who have entered into surrogacy agreements. The employer was ordered to pay the employee for the 2 months’ maternity leave he was not allowed to take, however, short of awarding damages. The effect of this judgement undoubtedly has far reaching implications in both public and private spheres of business, in that employers would have to rework their respective maternity leave policies.

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