Pol­icy on ma­ter­nity leave chal­lenged in Labour Court

Case could set a prece­dent for rules on surrogacy and adop­tion

The Star Early Edition - - NEWS - TA­NIA BROUGHTON

N IN­FOR­MA­TION tech­nol­ogy spe­cial­ist who, with his same­sex-union part­ner, be­came a par­ent through surrogacy has launched a court chal­lenge about ma­ter­nity laws, which he says are dis­crim­i­na­tory.

The em­ployee, who works for a gov­ern­ment agency in Pi­eter­mar­itzburg, can­not be named be­cause the law pre­cludes the iden­ti­fi­ca­tion of a sur­ro­gate child.

He is chal­leng­ing the laws that al­low women who give birth a full four months of ma­ter­nity leave.

The out­come of the case be­fore Judge David Gush in the Labour Court in Dur­ban could set a prece­dent for ma­ter­nity leave poli­cies re­gard­ing surrogacy and adop­tion.

The Ba­sic Con­di­tions of Em­ploy­ment Act is silent on both is­sues.

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 – that would see them be­come the le­gal par­ents of the child to be born in Novem­ber 2011.

AIn an­tic­i­pa­tion of the birth, and be­cause he was to be the pri­mary care­giver, he ap­plied for four months’ ma­ter­nity leave un­der his em­ployer’s leave pol­icy that he said “gives em­ploy­ees ex­pect­ing the birth of a child paid ma­ter­nity leave for a max­i­mum of four months a year”.

He was turned down, his em­ployer con­tend­ing that the ben­e­fit ap­plied only to women and that he was en­ti­tled to only four days of fam­ily re­spon­si­bil­ity leave.

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.

The em­ployee 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, point­ing also to the Chil­dren’s Act, which dic­tates that if there is a valid sur­ro­gate agree­ment, the child in ques­tion will be the child of the com­mis­sion­ing par­ents from birth.

Yes­ter­day, the man tes­ti­fied in court that he felt his role as a par­ent was not be­ing taken se­ri­ously and that he had been the child’s pri­mary care­giver from the mo­ment of its birth.

In his view, the four months’ paid leave pol­icy was not just to al­low women to re­cover from a birth, but also to bond with the child.

He wants the court to di­rect the em­ployer to re­frain from this al­legedly un­fair dis­crim­i­na­tion and to en­sure that other sim­i­lar cases are not dealt with in the same way.

He also wants two months’

The claim there is sex dis­crim­i­na­tion is to­tally base­less

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 sixweek post-par­tum 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 if the child con­cerned is younger than 24 months,” the em­ployer ar­gues.

“The claim that there is dis­crim­i­na­tion on the ba­sis of sex­ual ori­en­ta­tion and sex is en­tirely base­less. The same ben­e­fits ap­ply ir­re­spec­tive of the sex or sex­ual ori­en­ta­tion of the em­ployee.”

Sev­eral at­tempts to set­tle the is­sue out of court had failed. The court will have to de­cide if there has been un­fair dis­crim­i­na­tion and un­equal treat­ment. The par­ties are to file fur­ther ar­gu­ment. Judg­ment has been re­served.

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