To counter last week’s post about gay men being denied parental rights, here’s a story from the opposite end of the spectrum.
This week the Labour Court in Durban, South Africa ruled that gay men who become fathers through surrogacy are eligible for maternity leave when the baby is born.
Let’s revise that by saying they are “entitled” to it.
This is a trailblazing judgment.
In Times Live, writers Ernest Mabuza and Nomahlubi Jordaan report, “The court ordered the applicant’s employer, the State Information Technology Agency, to pay him for the two months’ unpaid leave he took to care for his newborn baby.” It continues, “The ruling, which has been welcomed by activist groups, would apply to heterosexual men as well.”
Irvin Lawrence, who represented the applicant, said this ruling also transcends to heterosexual fathers who declare themselves as the primary caregiver to their newborn.
The reason why Lawrence was brought into this court battle was that the petitioner’s employer, State Information Technology Agency, refused to pay their staff member when he took two months off to care for his baby.
Around the globe, gay rights activists cheered this case on finding the actions of the employer to be unconscionable, knowing it was time for a change.
The reporters wrote, “The father, whose identity cannot be revealed to protect the privacy of the child, 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.” They added, “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.”
For the applicant, he conveyed to the court that he and his spouse agreed that he would undertake the role as the primary caregiver for their infant following the birth.
Lawrence told reporters that the judge’s ruling may spur an amendment to the Basic Conditions of Employment Act. In a new era of parenthood, descriptions and definitions must be expanded to include every facet of parenthood in the 21st century.
In this particular case, the surrogacy agreement between the couple and the woman was a court order. The surrogate relinquished her parental rights, and the gay couple finalized their parentage order.
The petitioner, preparing for the birth of his baby, requested “paid” maternity leave for a total of four months.
“The State Information Technology Agency refused on the grounds that its policies and the Basic Conditions of Employment Act made provision for maternity leave only for female employees and were silent on leave for people who became parents through surrogacy,” the reporters wrote.
The employer indicated the employee could be offered what was called a leave for “family responsibility” or “special unpaid leave.”
As time pushed on, the employer then offered a total of two months of paid adoption leave. The other two months the employee would choose to take off would be unpaid.
“The father said these terms constituted discrimination against gay men. The agency denied its policy was discriminatory and said maternity leave was due to, and a right of, only female employees,” the article highlighted.
But Judge David Gush thought otherwise.
Gush’s ruling stated the following: “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.”
The authors also wrote that the judge ordered the State Information Technology Agency to recognize civil unions and also forbid the company to discriminate against those who became parents through surrogacy.
According to Johan Meyer, a health manager at Out, he told the media, “This is a breakthrough for future cases and for LGBT rights. It means that they can enjoy equal rights.”