The Basic Condition of Employment Act currently does not make provision for parental leave or maternity leave for gay couples.

Case Study:

A v State Information Technology Agency

In March 2015 a gay man challenged his employer’s refusal to grant him four months’ paid maternity leave on the grounds that he was not the child’s biological ‘mother’. The man married his partner in a civil union in 2010, and a year later the couple entered into an agreement with a woman to carry a baby for them.

But the employer refused on the grounds that its policies and the Basic Conditions of Employment Act made provision for maternity leave only for female employees, and was silent on leave for people who became parents through surrogacy.

The Labour Court ordered that the employer:

• Recognise the status of parties to a civil union, and prohibited discrimination against couples who had become parents by entering into a surrogacy agreement.
• Pay him for the two months’ unpaid leave he took to care for his newborn baby.