Have you ever thought that maternity leave should also apply to same-sex male couples?

A recent ground-breaking case in South Africa confirmed that it is discriminatory to refuse maternity leave to gay men who become parents through surrogacy.

This recent decision concerned a married gay couple who had entered into a surrogacy agreement with a woman to carry a baby for them. It was agreed between the two parents that one of the men would take on the role of the “mother” by taking immediate responsibility for the baby after its birth.

In anticipation of the birth he applied to his employer for four months’ maternity leave. This was contested by the employer on the basis that the Basic Conditions of Employment Act only contemplated granting maternity leave to female employees. The employer eventually granted him two months’ paid adoption leave and two months’ unpaid leave.

This, according to the applicant, amounted to unfair discrimination on the grounds of gender, sex, family responsibility and sexual orientation in terms of the Employment Equity Act.

The court agreed and found that the right to maternity leave is not only linked to the physiological welfare and health of the child’s mother but also considers the best interest of the child. In addition, because our law allows for same-sex marriages and regulates the rights of parents who enter into surrogacy agreements, employer’s policies pertaining to maternity leave should recognize or be interpreted to adequately protect the rights that flow from the Children’s Act and the Civil Union Act.

Accordingly, the court was of the view that there is no reason why a gay man who becomes a parent through surrogacy and assumes the role of primary care giver should not be entitled to maternity leave for same amount of time as birth mothers.

More details on the case can be found at The Federation of International Employers’ website.