Gay dads' big break

27 March 2015 - 02:01 By Ernest Mabuza and Nomahlubi Jordaan


Gay men who "have a baby" born by a surrogate mother are entitled to paid maternity leave. In a ground-breaking judgment yesterday welcomed by couples in same-sex unions the Labour Court in Durban said it was discriminatory to refuse paid maternity leave to a gay man who became a parent through surrogacy.The court ordered the applicant's employer, the State Information Technology Agency, to pay him for the two months' unpaid leave he took to care for his newborn baby.The ruling, which has been welcomed by activist groups, would apply to heterosexual men as well.Irvin Lawrence, who represented the male applicant, said the judgment would allow hetero sexual fathers who were the primary caregivers for their babies to argue that they were entitled to maternity leave.This could be the case when a mother died during or shortly after childbirth and the father alone had to care for the baby.Lawrence said the ruling might mean that the Basic Conditions of Employment Act will have to be amended to broaden the definition of maternity leave.The father, whose identity cannot be revealed to protect the privacy of the child, challenged his employer's refusal to grant him four months' paid maternity leave on the grounds that he was not the child's biological mother.The man married his partner in a civil union in 2010 and a year later the couple entered into an agreement with a woman to carry a baby for them.In terms of the surrogacy agreement, which was made an order of court, the surrogate mother had to surrender the child to the couple at birth and she could have no further contact with the child.In anticipation of the birth, the man applied to his employer for paid maternity leave of four months.But the State Information Technology Agency refused on the grounds that its policies and the Basic Conditions of Employment Act made provision for maternity leave only for female employees and were silent on leave for people who became parents through surrogacy.The agency offered the man "family responsibility" leave or special unpaid leave. Later, it said he could have two months of paid adoption leave and two months of unpaid leave.The father said these terms constituted discrimination against gay men.The agency denied its policy was discriminatory and said maternity leave was due to, and a right of, only female employees.But Judge David Gush said the agency's contention ignored the fact that the right to maternity leave cited in the Basic Conditions of Employment Act was not linked solely to the welfare of the child's mother but took into account the interests of the child.The man told the court that he and his spouse had agreed that he would assume the role of mother by taking immediate responsibility for the child after birth."Given these circumstances there 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," Gush said.The judge ordered the State Information Technology Agency to recognise the status of parties to a civil union and prohibited discrimination against couples who had become parents by entering into a surrogacy agreement.OUT, a lesbian, gay, bisexual and transgender rights group, said the judgment was "really positive"."This is a breakthrough for future cases and for LGBT rights. It means that they can enjoy equal rights," said Johan Meyer, a health manager at OUT.Couples in the UK who become parents through surrogacy will soon have the same rights as biological mothers and adoptive parents , according to the website of LGBT rights organisation Stonewall.These couples currently do not have the right to paid maternity, paternity or adoption leave but a new system comes into effect on April 5.From then on, parents through surrogacy will also be entitled to 52 weeks of parental leave, which can be shared between the two parents, with 90% of their pay.The European Court of Justice last year ruled that women who have babies born through surrogacy are not entitled to maternity leave.In Sweden and Germany, two of the countries giving the most wide-ranging rights to new parents, surrogacy is not permitted.In the US, surrogacy laws vary from state to state. There is no general right to parental leave for couples who become parents through surrogacy.

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