Gay man with surrogate baby wins right to paid maternity leave

IN a groundbreaking judgment for couples in same-sex unions, the Labour Court in Durban has ruled it was unfair discrimination to refuse paid maternity leave to a gay man who became a parent through surrogacy.

The court yesterday ordered the man’s employer, the State Information Technology Agency (Sita), to pay the man for the two months unpaid leave he took to care for his newborn baby.

The man, whose identity is being protected to safeguard that of his child, challenged Sita’s refusal to grant him four months’ paid maternity leave on the basis that he was not the biological mother of the child.

The man entered into a civil union with his partner in 2010 and a year later they drew up an agreement with a surrogate mother to carry a baby for them.

In terms of the agreement, which was made an order of the court, the surrogate mother had to hand over the baby to the couple at birth and have no further contact with the child.

In anticipation of the birth, the man applied to Sita for paid maternity leave of four months.

Sita refused on the grounds that its policies and the Basic Conditions of Employment Act only covered women employees regarding maternity leave and did not cover surrogate parents.

Sita offered the man family responsibility leave or special unpaid leave. Later on, it said he could have two months’ paid adoption leave and two more months unpaid leave.

In its argument before the court, Sita denied its policy was discriminatory and said maternity leave was only a right of women employees. However, Judge David Gush said this ap- proach ignored the fact that the right to maternity leave in the Basic Conditions of Employment Act in the present circumstances was not linked solely to the welfare of the child’s mother but also had to take the best interests of the child into account.

The man told the court he and his spouse had agreed he would assume the role of mother by taking immediate responsibility for the child after birth.

“Given these circumstances, there is no reason why an employee in the position of the applicant should not be entitled to maternity leave and, equally, no reason why such maternity leave should not be for the same duration as the maternity leave to which a natural mother is entitled,” Gush said.

ENS africa director Irvin Lawrence, who represented the man in this case, said the judgment would also affect heterosexual fathers who were primary caregivers of their babies.

Lawrence said the judgment might also mean that the Basic Conditions of Employment Act would have to be amended to broaden the definition of maternity leave. – Additional reporting by Nomahlubi Jordaan