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. 

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.