“My partner and I, a couple in a registered civil union, are planning to have a baby, either through a surrogate or adoption. While this is very exciting, it is also stressful as there will be no traditional mother figure for the baby to bond with in the first few months, and both my partner and I have full time employment. Would either my partner or I qualify for ‘maternity leave’?”

Traditionally maternity leave, as provided for in the Basic Conditions of Employment Act (“BCEA”), allows pregnant women four consecutive months of maternity leave. The BCEA however does not require an employer to provide for paid maternity leave and as such the policies of each employer regulate whether maternity leave is paid or not. In the event that it is unpaid maternity leave, the female employee may claim maternity benefits from the Unemployment Insurance Fund.

However, just as our social landscape and traditional concepts of marriage, sexuality and gender are evolving, so does our law. In the recent judgment of MIA v State Information Technology Agency (Pty) Ltd, the Labour Court ordered that the employer must desist from discriminating against the applicant on the basis of his gender, and that the applicant be given four months paid ‘maternity leave’.

In this case the applicant had entered into a registered civil union with his partner, and thereafer elected to have a child through a surrogate. 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 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.

In this landmark judgment, the 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, whose early development, nurturing and socialisation is crucial. 

In considering the applicant’s case, the court looked at the applicant’s right to equality, and to not be discriminated against on the basis of his gender, family responsibilty or sexual orientation, and then also looked at the child’s best interests. The court found that in these specific circumstances, the applicant was on equal footing to that of a female counterpart, with the rights and responsibilities arising from the birth of a child, and subsequently the applicant had the right to be treated equally and be given the same benefits in order for him to exercise his parental rights and responsibilities. As such, the applicant was entitled to four months paid maternity leave, and as his company’s policy was to give paid maternity leave, the court ordered that in addition to the two months paid leave that was already given in respect of the ‘adoption leave’, the applicant was to be reimbursed for the two months of unpaid leave that he had been compelled to take.

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, irrespective of circumstances, would be entitled to four months paid maternity leave. The specific circumstances of each employee will have to be considered.

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, or a father decides to be the primary caregiver while the mother returns to work, these benefits will not necessarily be awarded to you or other fathers. The best interests of the child will be the deciding factor to be considered in each case.

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

Written by Jacyn Mitchley
Associate, Phatshoane Henney Attorneys
Litigation Department