Same-Sex Couples And Paternity Leave

The maternity leave options contemplated in terms of the Basic Conditions of Employment Act, 1997 (“the BCEA”) provide that:

  • A mother has the right to four months of unpaid maternity leave in terms of the BCEA.
  • This does not apply to male employees, who, at law, may take three days leave in terms of their family responsibility leave. Any other leave must be part of their annual leave.

In the case of M I A v State Information Technology Agency (Pty) Ltd [2015] JOL 33060 (LC) a married male same-sex couple had a baby with the assistance of a surrogate mother in terms of a surrogacy agreement as envisioned in the Children’s Act (No. 38 of 2005).  Following the birth, the child was the entire responsibility of the couple.

One of the dads applied for “maternity leave”, but was turned down because the company’s maternity policy applied only to females.

The judge hearing the dispute ruled that:

  • The well being of the new born infant necessarily requires a devoted and full time care giver, particularly in the first months of life.
  • The best interests of the child were paramount, as is required by both the Children’s Act and the Constitution of South Africa.
  • The employee, as the parent of the child, should be allowed to take that role, even if he had not physically given birth to the infant.
  • There was was no reason why the employee was not entitled to the benefit of four months of unpaid maternity leave.

Review your maternity leave policies.

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