South Africa took a progressive step by legitimising surrogate parenthood with its Children’s Act. However, it somehow failed to provide for leave from work for the concerned parents to care for their infants.
Although the Bill is welcomed, there are a number of concerns pertaining to the duration and management of the various types of proposed leave that need to be urgently addressed – especially concerning the best interests of the child.
Dawn of a new era
Surrogate parenthood arises where one or two commissioning parents (the parties who enter into a surrogate motherhood agreement with a surrogate mother) agree with another woman to carry a child for them, as they are medically incapable of doing so themselves.
The Children’s Act stipulates that after the birth of the child, the commissioning parties will become the legal parents of that child. The surrogate mother must hand over the child as soon as reasonably possible.
The surrogacy agreement is controlled by the high courts and needs to meet certain requirements. These include, among others, consent by all the parties, the use of the gametes of one or both of the commissioning parents, and that they should be unable to produce a child themselves. The requirements furthermore guard against commercial surrogacy and other prohibited practices.
A shortcoming exists in the law. Although the commissioning parents receive their newborns shortly after birth, they do not have access to particular leave from work to fulfil their parental obligations, like natural parents would.
This failure led to an important Labour Court decision in 2015. The matter involved a male employee in a same-sex civil union who had applied for maternity leave as his only recourse to properly care for the newborn that had been born to him and his partner through a surrogate agreement.
The employer denied him such leave, arguing that it applied only to pregnant, female employees. The employee claimed unfair discrimination based on gender, sex, sexual orientation and family responsibility.
After arguing that there was no reason why “someone in the position of the applicant” could not also receive “maternity leave” to serve the interests of the child, the Labour Court mentioned in passing that amendments to current labour legislation would be necessary to appropriately address similar situations by specifically catering for commissioning parents.
South Africa’s leave regime
From the various types of leave available in terms of South Africa’s Basic Conditions of Employment Act, only two are arguably relevant to surrogacy: maternity and family responsibility leave.
However, maternity leave of four months (16 weeks) is only available to pregnant employees to protect the health of both the mother and child before and after birth. The International Labour Organisation supports this notion. We submit that maternity leave is not accessible to parents in terms of a surrogacy agreement, given that they do not meet the requirements.
Maternity leave will naturally be available to a surrogate mother who bears the child, as she qualifies as a pregnant employee. We argue that, similarly to circumstances of a miscarriage or stillbirth noted in the Basic Conditions of Employment Act, the mother should only be entitled to six weeks statutory leave after the birth. In addition, provisions should nevertheless be made for the possibility that she could use the full maternity leave period if she could provide a medical certificate to support the necessity of extended leave beyond the statutory six weeks.
Family responsibility leave, on the other hand, also provides for employees to take leave at the birth of their children in terms of the Act. This type of leave is not gender specific or based upon any health reasons. It can consequently be used by anyone who is the legal parent of the child.
In light of the scope of family responsibility leave, the conclusion can be reached that this type of leave will be the only form of recourse that exists for the commissioning parents. Unfortunately the period of leave available in these circumstances only amounts to a period of three days.
Needless to say, the duration of this leave is insufficient to meet the needs of the commissioning parents to care for the child. This gives rise to concern, as commissioning parents have the same parental obligations as traditional parents towards their child. The need for legislative reform can therefore not be denied.
In light of the shortcoming identified by the Labour Court, the recent Bill proposes ten weeks of leave for one commissioning parent. It also proposes another ten days ordinary parental leave to the other parent, to be taken from the date of birth of the child.
It is deduced that this leave will be unpaid as the Bill provides, in the proposed section 26, for unemployment benefits to be claimed in terms of the Unemployment Insurance Act. It is argued that the disparity between maternity, commissioning and ordinary parental leave could open the door to possible claims of unfair discrimination. The periods proposed could also be extended to serve the best interests of the child during the early development stages.
Lessons from the UK
Legal developments in the UK regarding surrogacy provide the best guidance for improving the proposed South African law. The UK law protects all the relevant parties in a surrogacy agreement, including the affected children.
The UK’s Children and Families Act, together with the Shared Parental Leave Regulations, brought about significant changes to the country’s labour market by expressly providing shared parental leave to employees who become parents in terms of a surrogacy agreement.
After obtaining a parental order, one commissioning parent qualifies for statutory adoption leave. Should the parent decide not to make use of the full leave period, he or she may transfer the remainder of the leave to the other parent – hence the term “shared parental leave”. One of the key aims of making leave available to both parents, despite their gender, was to enable working parents to equally share in the care of their children.
The way forward
Even though the conclusion of surrogacy agreements is acknowledged and regulated in South Africa, the country is lagging behind in addressing surrogacy-related issues in the labour market. Proper legislative intervention is needed to keep track of the changing values of society.
Similar practices to that of the UK in sharing available leave between the parties to a surrogate agreement could be adopted to address the issues above. This would consequently guard against falling behind on issues that are critical to the interest of parents and their children, irrespective of how they were born.