Gay men who “have a baby” born by a surrogate mother are entitled to paid maternity leave reports Times Live.
In a ground-breaking judgment welcomed by couples in same-sex unions the Labour Court in Durban said it was discriminatory to refuse paid maternity leave to a gay man who became a parent through surrogacy.
The court ordered the applicant’s employer, to pay him for the two months’ unpaid leave he took to care for his newborn baby.
The ruling, which has been welcomed by activist groups, would apply to heterosexual men as well.
Irvin Lawrence, who represented the male applicant, said the judgment would allow hetero sexual fathers who were the primary caregivers for their babies to argue that they were entitled to maternity leave.
This could be the case when a mother died during or shortly after childbirth and the father alone had to care for the baby.
Lawrence said the ruling might mean that the Basic Conditions of Employment Act will have to be amended to broaden the definition of maternity leave.
The father, whose identity cannot be revealed to protect the privacy of the child, challenged his employer’s refusal to grant him four months’ paid maternity leave on the grounds that he was not the child’s biological mother.
The man married his partner in a civil union in 2010 and a year later the couple entered into an agreement with a woman to carry a baby for them.
In terms of the surrogacy agreement, which was made an order of court, the surrogate mother had to surrender the child to the couple at birth and she could have no further contact with the child.
In anticipation of the birth, the man applied to his employer for paid maternity leave of four months.
But the company refused on the grounds that its policies and the Basic Conditions of Employment Act made provision for maternity leave only for female employees and were silent on leave for people who became parents through surrogacy.
The agency offered the man “family responsibility” leave or special unpaid leave. Later, it said he could have two months of paid adoption leave and two months of unpaid leave.
The father said these terms constituted discrimination against gay men.
The agency denied its policy was discriminatory and said maternity leave was due to, and a right of, only female employees.
But Judge David Gush said the agency’s contention ignored the fact that the right to maternity leave cited in the Basic Conditions of Employment Act was not linked solely to the welfare of the child’s mother but took into account the interests of the child.
The judge ordered the company to recognise the status of parties to a civil union and prohibited discrimination against couples who had become parents by entering into a surrogacy agreement.
Source: SA the Good News
Did you know that the equity clause in the South African Constitution made world history by including sexual orientation. It prohibits unfair discrimination on any ground including race, gender, sex, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture or language and sexual orientation. The inclusion affords protection to gays, lesbians, bisexual, intersex and transgender people.