Moksha Naidoo

BA (Wits) LLB (UKZN) is an advocate at the Johannesburg Bar.

Male surrogate parent successfully claims maternity leave

MIA v State Information Technology Agency (Pty) Ltd (LC) (unreported case no D312/2012, 26-3-2015) (Gush J).

Having entered into a same sex civil union with his spouse in terms of the Civil Union Act 17 of 2006, the applicant, his spouse and a surrogate mother concluded a surrogacy agreement as contemplated in the Children’s Act 38 of 2005.

In terms of the aforementioned agreement, that was made an order of court, the commissioning parents would be the parents to the child born to the surrogate mother and would assume their responsibilities at the time of birth.

The applicant and his partner agreed that the applicant would assume the role of the birth mother by immediately taking on any associated responsibilities at the time of birth. In light of this agreement the applicant applied to the respondent, his employer, for maternity leave as provided for in the latter’s internal policy. While the employer’s maternity leave policy is similarly worded to s 25 of the Basic Conditions of Employment Act 75 of 1997 (BCEA) a material difference is that an employee is granted four months ‘paid leave’.

The employer declined the applicant’s request and took the view that maternity leave, as provided for in the BCEA, was only reserved for female employees and furthermore the BCEA was silent on instances involving surrogate parents. The employer did, however, grant the applicant two months paid leave and two months unpaid leave in line with its policy applicable to employees who adopt a child younger than 24 months.

Aggrieved by his employer’s decision the applicant referred the dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) alleging he was unfairly discriminated against on the grounds of his gender, sex, family responsibility and sexual orientation, as set out in s 61 of the Employment Equity Act 55 of 1998. The applicant sought an order directing the employer to refrain from unfairly discriminating against him and others in his position, his remuneration for the two months he had to take as unpaid leave and damages amounting to R 400 000.

The matter remained unresolved at conciliation and came before Gush J at the Labour Court.

In its defence the employer argued that by implication, the word ‘maternity’ specifically applies to female employees to the exclusion of male employees and as such maternity leave is a right, which only female employees can enjoy. The employer went on to argue that its own internal policy on maternity leave was developed to cater for employees who gave birth on the understanding that pregnancy and child birth creates an ‘undeniable physiological effect that prevents biological mothers from working during portions of the pregnancy and during the post-partum period.’ Thus, according to the employer, its maternity leave policy seeks to protect ‘birth mothers from an earning interaction due to the physical incapacity to work immediately before and after childbirth.’

In addressing this argument the court found that the employer’s viewpoint did not take into account the fact that maternity leave, as an entitlement, is not solely linked to the health and welfare of the mother but should also be interpreted to include the best interest of the child. Failure to do so will ignore both the Constitution and the Children’s Act.

Section 28 of the Constitution states that every child has the right to family and parental care. In addition the Children’s Act which is the enabling legislation, specifically states in s 9:

‘In all matters concerning the care, protection and well-being of a child the standard that the child’s best interest is of paramount importance, must be applied.’

Following this Gush J held:

‘[T]here 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 legislation governing “civil unions” and surrogacy agreements is relatively recent. This legislation is a consequence of the adoption of the Bill of Rights in the Constitution. That our law recognises same-sex marriages and regulates the rights of parents who have entered into surrogacy agreements suggests that any policy adopted by an employer likewise should recognise or be interpreted or amended to adequately protect the rights that flow from the Civil Union Act and the Children’s Act.’

The court acknowledged that its views necessitated an amendment to the BCEA when dealing with similar matters in the future, however, on the merits before it, the employer relied on its own internal policy to refuse the applicant four months paid maternity leave.

The court held that the respondent’s refusal to grant the applicant four months paid maternity leave constituted unfair discrimination. The employer was ordered to pay the applicant his salary for the two months he was granted unpaid leave. The employer was further directed to apply its maternity policy in a manner that recognised the status of those who are party to a civil union, as well as not to discriminate against commissioning parents in terms of a surrogacy agreement. On the issue of damages, the court was not persuaded that the applicant had established any damages against the employer other than the loss of income he suffered. Costs were awarded against the employer.

• Moksha Naidoo will be conducting a one day labour law seminars on behalf of the Legal Education and Development arm of the Law Society of South Africa at various provinces in June 2015. For more information and to register please visit www.lssalead.org.za and click on labour law seminar.

This article was first published in De Rebus in 2015 (June) DR 42.