A Durban court has given a gay father paternity leave equal to the maternity leave granted to biological mothers.
In a groundbreaking ruling, the labour court found that it is discriminatory to refuse to give a male member of a same-sex couple who is the main caretaker of a child the equivalent maternity leave given to biological mothers.
The man, who has only been identified as an IT specialist, and his husband had a child through a surrogate mother in 2011. The two men agreed that the applicant would take on the traditional role of the “mother”.
He requested the same four months paid leave given to biological mothers by his employer, the State Information Technology Agency, on the basis that he was the newborn child’s primary caretaker.
The man was only granted two months paid leave and two months unpaid leave and he took legal action. The court has now ordered the State Information Technology Agency to pay him for the two months of unpaid leave.
According to The Times, the man’s lawyer has noted that the judgement could also be applied in future to heterosexual men who are the primary caretaker of a child after it is born.
Judge David Gush stated that the basis for granting maternity leave was not just to assist a recovering biological mother but also in the best interest of the child’s development.
“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,” he said.
The ruling could set precedent in how companies draw up parental leave policies in the future and could lead to changes in South Africa’s Basic Conditions of Employment Act.
Under the act, pregnant workers are entitled to at least four consecutive months of maternity leave. The law does not currently address leave for fathers, other than allowing for three days of family responsibility leave following the birth of a child.