Gay men who have a baby via surrogate now entitled to paid maternity leave

South African ruling came after an anonymous father took his employer to court when he refused to give him the full four months of paid leave. Gay men who have a baby born by a surrogate mother are entitled to paid maternity leave, a South African court ruled on Thursday.
The South African decision anticipates a legislation change in the United Kingdom that will give surrogate parents equal rights to maternity leave Photo: Alamy
The labour court in Durban said it was unjust for the state information technology agency, an information technology service in South Africa, not to pay a gay man the customary four months paid maternity leave usually given to new mothers.

“I think it’s a vindication that these antiquated conceptions of marriage, of who is ultimately responsible for the care of the child, are rendered void,” said Irvin Lawrence, the Durban-based lawyer representing an anonymous father.

“Ultimately you now have a judge saying we’re enlightened, we’re beyond that stage of prehistoric thinking.”

The father went to court after his employer refused to give him the full four months of paid leave, arguing that maternity leave only applied to women who recently gave birth.

The man, who asked to remain anonymous to protect the identity of his child, was married in a civil union in 2010. He entered a surrogacy agreement a year later and applied for leave in anticipation of the birth of the child in 2012.

The employer granted the man just two months of paid leave along with two months' unpaid leave.

By winning the court case, the new father was compensated for the two months' unpaid leave, Mr Lawrence said.

“I feel fantastic,” said Mr Lawrence. “It’s not a significant amount by way of compensation but by way of principle, it is significant.”

The lawyer added that this ruling, where the judge placed more emphasis on the welfare of the newborn child when considering whether or not to grant maternity leave, will likely result in South Africa’s employment act being amended to be more accommodating to all kinds of parents.

The South African decision anticipates an April 5 legislation change in the United Kingdom that will give surrogate parents equal rights to maternity leave, which includes 6 weeks' leave with 90 per cent of their average weekly earnings before tax.

In Europe, surrogate parents are not guaranteed maternity leave. Last year, the European court of justice ruled that parents who bring up babies through surrogacy agreements are not entitled to paid time off after their child is born.

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