News / E-Bulletin

Maternity leave in relation to same sex unions

May 8,2015


The right to maternity leave is not solely for the welfare of the mother of a child but also for the best interests of the child. An employee, whether male or female, who becomes a parent via a surrogacy arrangement is entitled to maternity leave in the instance where an employer has a maternity leave policy.


In M I A v State Information Technology Agency (Pty) Ltd (D 312/2012)[2015]ZALCD 20 (26 March 2015) the employee applied to the Labour Court to have the employer’s refusal to grant him paid ‘maternity” leave declared unfair discrimination on the grounds of gender, sex, family responsibility and sexual orientation.

The employee had entered into a same-sex civil union with his spouse in 2010. In 2011, the employee and his spouse entered into a surrogacy agreement with a surrogate mother. In anticipation of the birth of the child, the employee applied to his employer for paid maternity leave for a period of four months (in line with the employer’s maternity leave policy). The employer refused to grant maternity leave and offered the employee “family responsibility leave” or special unpaid leave. Subsequently the employer granted the employee two months paid adoption leave and two months unpaid leave.

The employer’s maternity leave policy allowed for “maternity’ leave” of a maximum of four months”. This is in line with section 25 of the Basic Conditions of Employment Act 75 of 1997 (“BCEA”) which requires an employer to provide four consecutive months maternity leave which may be taken at any time from four weeks prior to the expected date of delivery, unless otherwise agreed. Unlike the BCEA the employer’s policy allowed for such leave to be paid. The employer also provided for two months paid maternity leave for permanent employees adopting a child younger than 24 months.

The employee argued that the maternity leave policy constituted unfair discrimination on the grounds of gender, sex, family responsibility and sexual orientation as provided for in section 61 of the Employment Equity Act 55 of 1998 (“EEA”).

The employer argued that its policy was not discriminatory as the BCEA allows for “maternity” leave, which means it is a right due to be enjoyed by female employees only. The employer argued that its maternity leave policy was specifically “based on the understanding that pregnancy and childbirth create an undeniable physiological effect that prevents biological mothers from working during portions of the pregnancy and the post-partum period.”

The Labour Court held that the employer’s reasoning ignores the fact that maternity leave is a right not only for the welfare of the mother, but also for that of the child. The Bill of Rights and Children’s Act 38 of 2005 require that the best interests of the child be given paramount importance.

The court found that 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 the same duration as that which a female employee who gives birth is entitled to. The employer’s leave policy therefore discriminated unfairly against employees in the position of the applicant.

The court stated that in order to properly deal with matters such as this one, it will be necessary to amend legislation and the BCEA in particular. However, because it was the employer’s maternity leave policy and not the BCEA that was under scrutiny, the court chose not do so in this matter.

The court ordered that the employer must, when it applies its maternity leave policy, give recognition of the status of parties to a civil union and the rights of commissioning parents in a surrogacy agreement. The court further ordered that the employer pay the employee the sum of two months remuneration (in addition to the two months already paid to the employee) and pay the costs of the application.


This case marks an important stepping stone for employees in same-sex unions in ensuring that they are not unfairly discriminated against by employers. An employee who becomes a parent through a surrogacy arrangement and by implication, an adoptive parent of a recently born child or a father who assumes the role of primary caregiver must be allowed the same maternity benefits provided by an employer to female employees who give birth. It is likely that the same reasoning may apply to the provisions of the BCEA relating to maternity leave.

Click on the link if you’ like to more information on Werksmans expertise in the Labour & Employment sector.

Latest News