Policy on maternity leave challenged in Labour Court

Case could set a precedent for rules on surrogacy and adoption

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.