Discriminatory to refuse maternity leave for gay dads

29 May 2015

A groundbreaking employment dispute in South Africa has confirmed that it is discriminatory to refuse maternity leave to gay men who become parents through surrogacy.

With thanks to Eversheds for the details of the case - MIA v State Information Technology Agency (Pty) Ltd.

This recent decision of the Labour Court concerned a married gay couple who had entered into a surrogacy agreement with a woman to carry a baby for them. It was agreed between the two parents that one of the men would take on the role of the “mother” by taking immediate responsibility for the baby after its birth.

In anticipation of the birth he applied to his employer for four months’ maternity leave. This was contested by the employer on the basis that the Basic Conditions of Employment Act only contemplated granting maternity leave to female employees. The employer eventually granted him two months’ paid adoption leave and two months’ unpaid leave. This, according to the applicant, amounted to unfair discrimination on the grounds of gender, sex, family responsibility and sexual orientation in terms of the Employment Equity Act.

The court agreed and found that the right to maternity leave is not only linked to the physiological welfare and health of the child’s mother but also considers the best interest of the child. In addition, because our law allows for same-sex marriages and regulates the rights of parents who enter into surrogacy agreements, employer’s policies pertaining to maternity leave should recognise or be interpreted to adequately protect the rights that flow from the Children’s Act and the Civil Union Act.

Accordingly, the court was of the view that there is no reason why a gay man who becomes a parent through surrogacy and assumes the role of primary care giver should not be entitled to maternity leave for same amount of time as birth mothers.


Legally, it is envisaged that the legislation may have to be amended to broaden the definition of maternity leave.

This judgment not only extends the rights of men who are fathers to be in same-sex marriages, but also opens the door for heterosexual fathers, who will be the primary caregivers for their babies, to argue that they too are entitled to maternity leave.

Another important consideration is the maternity rights of parents who adopt new-born babies, as it is arguable that in light of this judgment that the primary caregiver should also be entitled to full maternity leave.

Concluding Remarks

It is advisable that employers consider aligning their company’s policies with the shift in affording both male and female primary caregivers equal opportunity to claim maternity leave. If they don’t, employers may face potential exposure to similar claims which may prove to be a costly exercise - not to mention a losing battle.