A gay South African man is fighting for the right to paternity leave equal to the maternity leave granted to biological mothers.
The man, who the Cape Times identified only as an IT specialist, became a parent, along with his husband, through surrogacy in 2011.
He applied for four months’ maternity leave from his employer. This was refused on the basis that maternity leave is only applicable to a woman who gives birth to a child.
After appealing the decision to the head of HR, the man – who is the primary breadwinner – was given two months’ leave, which the employer grants to adoptive parents.
The man’s lawyer argued in papers in the Durban Labour Court, that his client has been discriminated against on the basis of gender, sex, family responsibility and sexual orientation.
The father is asking the court to order the employer, which Times Live reported is a government entity, to stop the discriminatory policy, as well as requesting two months’ pay and R400 000 in damages.
The ruling could set precedent in how companies draw up parental leave policies in the future.
Under the Basic Conditions of Employment Act, pregnant workers are entitled to at least four consecutive months of maternity leave.
The law does not address leave for fathers, other than allowing for three days of family responsibility leave following the birth of a child. In July, the NGO Sonke Gender Justice came out in support of a petition by financial manager Hendri Terblanche to extend paternity leave to at least 10 days.
Johan Meyer, Health Manager at OUT LGBT Well-being in Pretoria, told Mambaonline that in cases in which the surrogate mother is not involved in raising the child it would be especially justified for at least one of the same-sex parents to be granted full maternity leave.
“Who else is going to stay home and take care of the child – especially if the surrogate mother is not in the picture?” he asked.
He said that it is important for at least one of the parents to bond with the child in the first few months and queried why it is automatically assumed that the woman in a heterosexual relationship is always the one that wishes to or should be entitled to take the leave after the birth.
“In the case of a lesbian couple, if one of the women was the birth mother then she would be granted maternity leave. The same kind of leave should apply to a member of any same-sex couple,” he added.