According to Section 25 the Basic Conditions of Employment Act 75 of 1997 (“the BCEA”), maternity leave will be granted to pregnant female employees, including female employees who adopt or assume motherhood through surrogacy, for at least four consecutive months. The BCEA does not make specific provision for paid maternity leave and, therefore, the discretion lies with the employer to determine whether the maternity leave is paid or not. In the event that policies only provide unpaid maternity leave, the female employee may claim maternity benefits from the Unemployment Insurance Fund.

Section 27 of the BCEA provides for only 3 days family responsibility leave for men upon the birth of their children. South African labour legislation further makes no specific provision for paternity leave or maternity leave for men in a civil union, who have assumed the role of mother through surrogacy or adoption. This means that the 3 days family responsibility leave is the only statutory leave available to parents in a civil union and for paternity leave.

The Court recently had to decide what the position is with regards to maternity leave in a same sex civil union.

Civil unions registered between partners of the same sex are recognised in terms of the Civil Union Act 17 of 2006 (“Civil Union Act”). This means that the Civil Union Act provides equal protection to partners in a same-sex relationship as to couples in a heterosexual marriage.

In the recent ground-breaking judgment of MIA v State Information Technology Agency (Ptd) Ltd it was held by the Labour Court in Durban that it was discriminatory to refuse paid maternity leave to a man in a civil union who became a parent and assumed the role of the mother through surrogacy. The court looked at the applicant’s right to equality, and to not be discriminated against on the basis of his gender, family responsibility or sexual orientation, and then also looked at the child’s best interest.

A couple in a registered civil union entered into a surrogacy agreement in terms of which they would be deemed the parents of the child born from the surrogate mother. 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 applicant was informed that he was not entitled to paid maternity leave as the BCEA and the company’s internal policies only made reference to maternity leave for female employees. The employer did, however, compromise and allowed the applicant two months paid special leave which they termed “adoption leave”, and then insisted that the further two months be taken as unpaid leave.

Given the circumstances where the couple agreed that the man would assume the role of mother by taking immediate responsibility for the child after birth, the Labour Court found that 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. The Court further found that the BCEA was not linked solely to the welfare of the child's mother, but took into account the interests of the child which is dealt with by the Children’s Act 38 of 2005. The basis for providing maternity leave was not solely based on the physical and emotional interest of the mother who has recently given birth, but that it was just as important in respect of guarding the best interest of the newborn, whose early development, nurturing and socialisation is crucial.

It is important to note though that this judgment does not mandate that all employees who are new fathers, irrespective of circumstances, would be entitled to four months paid maternity leave. The specific circumstances of each employee will have to be considered. The partner who would be fulfilling the role of primary caregiver, would most likely be entitled to four months maternity leave.

By Lelanie Basson