The rights of children to maternal care – Maternity leave

17 Jun 2015

The recent judgment of Gush J in the matter of Mia v State Information Technology Agency (Pty) Ltd has been a landmark judgment regarding the rights of parents to maternity benefits.

The judgment concerns an application by the Applicant that the Respondents refusal to grant “maternity” leave to enable the Applicant to care for his new born child born by a surrogate constituted unfair discrimination on the grounds of gender, sex, family responsibility and sexual orientation.

The Applicant and his spouse had entered into a civil union in 2010 in accordance with the Civil Union Act and in July of 2011 had entered into a valid surrogacy agreement with a surrogate mother, which provided, inter alia, that the surrogate mother would hand over the child to the commissioning parents at birth and that the surrogate mother would have no further contact with the child thereafter.  In anticipation of the birth of the child, the Applicant had applied for paid “maternity” leave of 4 months in accordance with the Respondent’s maternity leave policy which “shall” be taken 4 weeks prior to confinement but was refused by the Respondent.

The Respondent argued that when the Applicant applied for maternity leave, its policies and the Basic Conditions of Employment Act 75 of 1997 (“BCEA”) were silent on the issue of leave for surrogate parents and only provided maternity leave for female employees who had been pregnant and given birth.  As such, the Respondent offered the Applicant “family responsibility leave” or special unpaid leave.  The Applicant was subsequently granted 2 months paid adoption leave and 2 months unpaid leave.   Contrary to the BCEA, the Respondent grants 2 months maternity leave on full salary to “permanent” employees adopting a child younger than 24 months.  Adoption leave is not catered for in the BCEA or in any other piece of legislation in South Africa.

The Respondent denied that its policies were discriminatory by placing emphasis on the word “maternity” as being the defining character of the term and as such would be a right due only to female employees.  The Respondent argued that the leave catered for employees “who gave birth on the understanding that pregnancy and birth create a physiological effect that prevents mothers from working during portions of the pregnancy and during the post-partum period.”  The Court rejected this view on the basis that “this approach ignored that the entitlement to leave is not linked solely to the health and welfare of the mother but must of necessity be interpreted to take into account the best interests of the child.”  The Court stated that to ignore the rights of the child would be akin to ignoring the Bill of Rights and the Children’s Act.  The Children’s Act gives effect to the rights as contained in the Bill of Rights and the Act makes provision for and regulates surrogacy agreements.

The Court held that given that the child was handed over to the commissioning parents at birth, and that the mother did not even have sight of the child, the Applicant should be entitled to maternity leave and that such maternity leave should be for the same duration as that which a natural mother would be entitled to.

The Court went on to further state that the law regarding Civil Unions and Surrogacy were relatively recent and was as a result of the adoption of the Bill of Rights.  The Court held that “as our law recognises same-sex marriages and surrogacy agreements any policy adopted by an employer should likewise recognise or be interpreted or be amended to adequately protect the rights that flow from the Civil Union Act and the Children’s Act”.  Similarly, the BCEA should be amended to give effect to the rights stemming from these statutes.

Until the enactment of Chapter 19 of the Children’s Act on 1 April 2010, South Africa did not have legislation dealing specifically with surrogacy and surrogacy agreements.  Section 292(1) stipulates strict requirements in respect of surrogacy agreements which must be met, failing which same is said to be invalid and of no force and effect.  These include:

1. The agreement is in writing and signed by all the parties thereto;
   1. The agreement is entered into in SA;
2. At least one of the commissioning parents, or where the commissioning  parent is a single person, that person, is at the time of entering into the agreement domiciled in SA;
3. The surrogate mother and her husband or partner, if any, are at the time of entering into the agreement domiciled in SA; and
   1. The agreement is confirmed by the High Court within whose area of jurisdiction the commissioning parent or parents are domiciled or habitually resident.

Section 297(2) further provides that any surrogate motherhood agreement that does not comply with the provisions of the Act is invalid and any child born as a result of any action taken in execution of such an agreement is for all purposes deemed to be the child of the woman that gave birth to that child.

Of particular importance and relevance though are the provisions of section 297(1) which stipulates the effect of a valid surrogate motherhood agreement to be the following:

1. Any child born of a surrogate mother in accordance with the agreement is for all purposes the child of the commissioning parent(s) from the moment of the birth of the child concerned (our emphasis);
2. The surrogate mother is obliged to hand the child over to the commissioning parent(s) as soon as is reasonably possible after the birth (our emphasis);
3. The surrogate mother or her husband, partner or relatives has no rights of parenthood or care of the child and no right of contact with the child unless the latter is provided for in the agreement between the parties (our emphasis);
4. Subject to sections 292 and 293, the surrogate motherhood agreement may not be terminated after the artificial fertilisation of the surrogate mother has taken place; and
5. The child will have no claim for maintenance or of succession against the surrogate mother, her husband or partner or any of their relatives.

This judgment is a welcome reprieve in that it opens up an issue that is bound to arise more often as a result of the rights that flow from the Civil Union Act and the Children’s Act given that a valid surrogacy agreement which is confirmed by the High Court clearly provides that the child born from the agreement is considered to be the child of the commissioning parent(s) from the moment of birth and the commissioning parent(s) have full parental rights and responsibilities in respect of the child.  The surrogate is obliged to hand over the child to the commissioning parent(s) as soon as is reasonably possible after the birth and loses all parental rights in respect of the child.

The challenge, however, arises as to whether in assuming full parental rights and responsibilities of the child from the moment of birth the commissioning parent(s) is permitted the taking of “maternity” leave, or whether same is limited to “family responsibility” leave.

This is an international challenge given the definition of “maternity” benefits internationally against the changing face of traditional families.  Benefits that allow for a child to be cared for and bond with their parent(s) are usually assumed to be “maternal benefits” as this would usually follow immediately from birth.

A useful starting point regarding the international position would be to look to the International Labour Organisation Maternity Protection Convention, 2000 (No. 183), its accompanying Recommendation (No. 191) and the Workers with Family Responsibilities Convention, 1981 (No. 156).  Article 4(1) of Convention 183 which provides that “On production of a medical certificate or other appropriate certification, as determined by national law and practice, stating the presumed date of childbirth, a woman to whom this Convention applies shall be entitled to a period of maternity leave of not less than 14 weeks.”  Article 4(4) of Convention 183 goes on to state that “With due regard to the protection of the health of the mother and that of the child, maternity leave shall include a period of six weeks’ compulsory leave after childbirth, unless otherwise agreed at the national level by the government and the representative organisations of employers and workers.”

Maternity benefits are afforded to and enjoyed by women who fall pregnant and give birth, the purpose of which is to protect the security of tenure and health of women when and after they have given birth as well as protecting the health of the child.  There is a conspicuous absence in providing “maternity” leave in instances with commissioning parents in surrogacy agreements, single fathers, same sex parents and/or grandparents who are tasked with taking care of new born children.  With the changing face of traditional families, surely the best interests of the child and the provision of maternal benefits to such parent(s) and/or caregivers should trump any interpretation of “maternity” benefits.

In the International Labour Report on Maternity and Paternity at work[1] it is stated that “in addition to maternity leave, access to other kinds of family leave to care for new born and young children is important for a worker’s ability to reconcile work and family life.” These leave provisions include paternity leave, parental leave and adoption leave.  “Paternity leave” is usually a short period of leave to care for the child and the mother around the time of childbirth.  “Parental leave” tends to be a longer period of leave to care for the child beyond maternity or paternity leave and is typically available to one or both of the parents, allowing them to take care of an infant or young child over a period of time, usually following the maternity or paternity leave period.  “Adoption leave” provides time for parents to care for their adopted children.[2]

However this too fails to allow for a parent to provide maternal benefits in the non-traditional family settings.  Furthermore, paragraph 10(3) of Recommendation No. 191 states that “the employed mother or the employed father of the child should be entitled to parental leave during a period immediately following the expiry of maternity leave”, again limiting the provision of parental leave to the mother who gives birth to her own child and subsequently cares for the child.  In South Africa, parental leave may fall under “family responsibility leave” which in terms of the BCEA is limited to a period of 3 days for specified instances only and is granted to male and female employees employed for longer than 4 months and who work at least 4 days a week.  Given that its usage is broader than what is normally defined as parental leave, in addition to when a child is born or sick, it can also be taken in the event of the death of a spouse or life partner, child, grandchild or sibling.  This leave is therefore insufficient for a parent in a non-traditional family setting to provide the maternal benefits that a child needs.

Paragraph 10(5) of Recommendation No. 191 provides for adoption leave which provides that “where national law and practice provide for adoption, adoptive parents should have access to the system of protection offered by the convention, especially regarding leave, benefits and employment protection.”  In some countries, adoption leave provisions have been enacted that are similar to, or the same as, the provisions for maternity or parental leave.[3]  This includes countries such as Senegal, the United Kingdom, Colombia and Brazil.[4]  This kind of leave could therefore provide for a parent to be granted leave to provide a child with “maternal benefits” in non-traditional families.  The problem that has arisen with this type of leave is that it typically requires “proof of adoption” to be provided by the parent.  This does not pose a problem for a parent adopting a child, however, in the case of surrogacy this is not always possible depending on the laws governing surrogacy in each country and in particular, whether surrogacy is recognised or not.

This difficulty was canvassed in the case of C.D v S.T[5] which was heard in the United Kingdom (“UK”).  The case concerned a couple (male and female) who had entered into a surrogacy agreement, which was recognised under UK law.  However, the Human Fertilisation and Embryology Act 2008 which governed surrogacy provided that the birth mother would be considered as the mother, regardless of whether she was genetically related to the child or not, until an application was made by the intended parents no later than six months following the birth of the child.  This meant that during the first 6 months, the intended parent(s) could not apply for maternity leave, even if the intended parent had immediately taken care of the child and even breastfed the child after birth.  The employer in this case provided for adoption leave, however, they required the parent to provide a “matching certificate” issued by an adoption agency, certifying that the future adoptive parent had been matched with a child for adoption.  While C.D had entered into a valid surrogacy agreement that complied with the Human Fertilisation and Embryology Act and had submitted this agreement in her application for adoption leave, the employer held that the agreement did not meet the requirements of the adoption leave policy as C.D could not provide a “matching certificate”.  While the employer subsequently granted the leave the question still had to be determined for other similar cases that should arise.  The Court in this case took into account the care of the child and who the primary caregiver would be in surrogacy arrangements and held that an intended mother had a right to maternity leave if she takes the child into her care immediately after it is born.  The link granting maternity benefits was made in this case by taking into account whether a mother breastfed or not, and even where a mother chose not to breastfeed, the inherent choice granted to a mother was not to be held against an intended mother in a surrogacy agreement because the care for the child would be the same if the mother took the responsibility of caring for the child shortly after it was born.  This link could be made in this case and even possibly extended to same sex couples if regard is had to the wording of the Human Fertilisation and Embryology Act which provides that the applicants for surrogacy “are husband and wife or in some analogous relationship”.

Creating this link and thus extending maternity and/ or adoption leave benefits is significantly more difficult in the South African context given that South African legislation does not provide for adoption leave but only maternity leave notwithstanding the recognition of surrogacy agreements.  Furthermore, maternity leave is only available to females and thus cannot be extended to male same sex partners or even single fathers where the mother dies during childbirth.  Adoption leave is not provided for other than the 3 days of family responsibility leave which does not give a parent a chance to provide maternal benefits.  While the Honourable Gush J in Mia v State Information Technology Agency (Pty) Ltdstated that legislation should be amended to provide leave for parties affected by the Civil Union Act, this cannot be done by simply including men as beneficiaries of maternity leave in the BCEA given the ordinary and dictionary meaning of maternity and in particular the international recognition that this leave is for the protection and enjoyment of women.  Furthermore, while section 25 of the BCEA does not expressly exclude women who become mothers through a surrogacy agreement, it makes no mention of them either.  As such, an employer may also argue that this benefit is not available to a woman who seeks to apply for it as she was not the woman who gave birth to the child.

Perhaps the solution would be for the legislature to allow for and provide for adoption leave, which would encapsulate surrogacy leave given that both adoption, and more so surrogacy, require the parents to form a bond with the child and provide the “maternal benefits” from birth and/ or introduction of the child to the family.  The reality is that the 3 days family responsibility leave granted in terms of the BCEA is insufficient to provide for this type of leave.  The prevalence of surrogacy agreements is bound to increase and employers would do well to consider making provision for this type of leave to care for children in such instances because a failure to do so is discriminatory.  Considering the implications of the judgement in Mia v State Information Technology Agency (Pty) Ltd and in particular the implications on the public purse as maternity leave pay is covered by the state, it is important for the legislature to provide sufficient clarity on the position and to similarly make provision for this type of leave to prevent discrimination and in particular, to protect the rights of children as enshrined in the Bill of Rights.

[1] Maternity and Paternity at Work Law and practice across the world, 2004, p.51.

[2] Ibid.

[3] Maternity and Paternity at Work Law and practice across the world, 2004, p.69.

[4] Ibid.

[5] Case 167/12, handed down on 18 March 2014.

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)