Could fathers be entitled to maternity leave too?

and that the applicant be given four months’ paid “maternity leave”.

As in your situation, both the applicant and his partner were employed full time, and were concerned about the crucial early care and bonding necessary for any newborn.

Upon requesting maternity leave, the employer informed the applicant that he was not entitled to paid maternity leave, as the Basic Conditions of Employment Act (BCEA) and the company’s internal policies only made reference to maternity leave for female employees.

In a landmark judgment, our Labour Court found that the basis for providing maternity leave was not solely based on the physical and emotional interests of a mother who has recently given birth, but that it was just as important in respect of guarding the best interests of the newborn.

The court looked at the applicant’s right to equality, as well as the child’s best interests.

It found that in these circumstances, the applicant was on equal footing to that of a female counterpart.

While this judgment is a significant step in favour of the rights and benefits of male employees and new fathers, the judgment does not mandate that all employees who are new fathers would be entitled to four months’ paid maternity leave.

In your case, if you and your partner, a couple in a registered civil union, agreed that one of you would be fulfilling the role of primary caregiver to your newborn, and you become parents through a valid surrogacy agreement whereby you are given the baby immediately after the child’s birth, the primary caregiver would most likely be entitled to four months’ maternity leave.

However, in other circumstances, such as if you adopt a child, these benefits will not necessarily be awarded to you or other fathers.

If your employer is not amenable to granting you maternity leave, it may be advisable to approach a labour practitioner for advice.

Richard Jardine is an attorney with Drake Flemmer & Orsmond Attorneys. He can be contacted on (043) 722-4210.