A male employee in a same-sex civil union (“Applicant”), signed a surrogacy agreement with a surrogate mother. Applicant requested paid maternity leave from his employer (“Respondent”). However, Respondent refused to grant him paid maternity leave in accordance with company policy that defined “maternity” as applying to only women, and did not recognize surrogate parents.
Respondent’s maternity leave policy mirrors the provisions of Section 25 of the Basic Conditions of Employment Act 1997; an employee is entitled to “paid maternity leave of a maximum of four months,” such leave to be taken “four weeks prior to the expected date of birth or at an earlier date.” Applicant was initially offered unpaid “family responsibility leave,” and subsequently two months’ paid adoption leave and two months’ unpaid leave.
Applicant sought an order directing Respondent to (1) refrain from unfair discrimination; (2) recognize the rights of those in Applicant’s position as natural maternal parents; (3) recognize the rights of those in Applicant’s position to receive paid maternity leave; (4) pay Applicant two months of remuneration; (5) pay damages in the sum of R400,000; and (6) pay costs.
The issue before the Court was whether Respondent’s maternity leave policy unfairly discriminates against employees in civil unions and are commissioning surrogate parents.
The Court stated that the right to maternity leave as created in the Basic Conditions of Employment Act must take the best interests of the child into account as well as the welfare and health of the child’s mother. This is consistent with the Bill of Rights in the Constitution of the Republic of South Africa and the Children’s Act 2005, which specifies that “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.”
Surrogacy agreements are regulated by the Children’s Act. Pursuant to the terms of Applicant’s surrogacy agreement, the child was taken straight from the surrogate. Only one commissioning parent is permitted to be present at the birth; it was decided between Applicant and his spouse that Applicant would be present and would take immediate responsibility for the child. The Court believed there is no reason why an employee in Applicant’s position should not be entitled to maternity leave for the same period and on the same terms as a “natural mother.”
The Court therefore held that any policy adopted by an employer should recognize the rights that flow from the Civil Union Act and the Children’s Act, so that same-sex parents and surrogate mothers should not be discriminated against.
The Court held that when applying maternity leave policy, an employer must recognize the status of parties to a civil union and recognize the rights of commissioning parents in a surrogacy agreement, including male parents in same-sex unions. Respondent’s refusal to grant Applicant paid maternity leave because he was not the biological mother of his child therefore amounted to unfair discrimination.
The Court ordered Respondent to pay an amount equivalent to two months’ salary to Applicant and Applicant’s costs, but damages were denied.
South Africa is the only country in Africa that has legislation recognizing same-sex marriages (civil unions) and surrogate parents and therefore this case is unique to South Africa. However, it is jurisprudentially noteworthy for other reasons.
The predominant construction of family is that it is a heterosexual institution. Women have thus been socially constructed as “mothers” so that anything to do with maternity is associated with the females. Over the years, human rights norms have been extended to cover non-traditional family constructs, such as same-sex marriages and unions. In this case, the Court interpreted “maternity” to include males whose roles are the same as those who are traditionally understood as “mothers” and therefore, males may also be entitled to maternity benefits. The Court explained that the principle is those who take care of the infant as their “mother” are eligible to maternity benefits, their gender notwithstanding. Further, the Court recognized the best interests of the child principle also applies to this situation, so the case encompasses both the person taking maternity leave and the child benefitting from it.