FEATURE Maternity leave and same sex parenting scenarios Do we create our own complications? January 30, 2008 JOHANNESBURG — You have to give it to us – gay couples really challenged legislation, policies, rules and regulations in South Africa. We must have caught the powers a little “off-guard” with this marriage thing. They obviously did not give it that much thought or maybe not anticipated that gay marriage will actually become a reality. This is not what the article is about. We want to talk about Maternity Leave. Once again – we have given the system a bit of a challenge. We also found that many of our “family” has already achieved some remarkable progress and in some instances even stretched expectations. We all bellow from “Gayville” that Maternity Leave is supposed to allow bonding time with our new addition to the family. We wish. The reality is that Maternity Leave was specifically legislated to protect pregnant women and to continue their protection whilst breastfeeding. It specifically specifies “pregnancy”. Also, it prohibits a return to work for 6 weeks after the birth of the child (unless a medical certificate is issued that clears the mother to work). With gay couples we either use medical intervention such as AI (Artificial Insemination) or IVF (In-vitro fertilisation), surrogacy or adoption. One (such as the case of AI and IVF) or both partners (as in the case of adoption and/or surrogacy) will not give birth to the child. What maternity leave do we, as gay couples, qualify for in cases such as the above? According to Jaqui Perkes, Managing Director of the fair labour practice (Pty) Ltd, Maternity Leave for adoption is governed by the Basic Conditions of Employment Act. The Act does not specify adoption per se, only birth: an interpretation is that if one adopts at the birth of a child (or as soon as possible thereafter), then maternity leave should be as per the Act, viz: stop working one month prior to confinement date, plus 6 weeks leave thereafter (total of 4 months). Effectively, maternity leave is up to 4 consecutive months. As there would be no pregnancy involved here, the mother would apply to her employer to have the 4 months from the date the baby is due to come home or, say, a week before to make relevant preparations, etc. UIF (unemployment insurance fund) also caters for an adoption benefit. We decided to throw a curve ball and look "up close" at the situation as this pot seems far too clean. Before gay marriage became legal in SA (1 Dec 2006), the non-biological mother (partner not bearing the child) had to go through an adoption process to obtain parental rights. This will still be the case for couples not legally married. The scenario: You have a biological mother that gives birth and you have the partner that adopts. Does that mean we get a “double whammy”? Jaqui continues: “Technically you’re correct, but practically I think not. The reality of this relationship is much the same as in a heterosexual one, where the father would not get maternity leave, but would get family responsibility leave. Wearing the hat of “reasonable person”, I believe it would be impractical to expect that both partners in a same-sex relationship are treated both as “mothers”, despite, in this scenario, they both being female. “ What would your rights be if an adopting of a child through Surrogacy or not biologically connected to either spouse/partner takes place? According to Jaqui, as above, fairness must prevail on the part of the employer and the employee. One of the partners would thus apply for maternity and the other for family responsibility leave. One would assume that these partners have “come out” and are living their lives in much the same way as Mr/Ms Citizen and their employers would be aware of the adoption, etc. In the case of one of the recent visitors to The Baby-ventures Rainbow Family (same-sex parenting advice portal), can we then “transfer” our maternity leave if one of the female spouses is experiencing fertility problems and the second spouse will bear the child but need to continue with her working career? According to Jaqui you could, if your employer agrees, “transfer” the obligation to provide maternity leave, but effectively, you would be waiving your right to this leave. In law there are some rights which you have that even you cannot waive yourself, such as the right not to incriminate yourself! In such a scenario, Jacqui would advise the person to write a letter to the employer, waiving the right to maternity leave for the specific pregnancy, but not to every future possibility because the situation could change: the relationship could dissolve and a new relationship in which the responsibilities may change could develop. Jaqui advises that the parties in such a scenario would have to consult their employers and work out the best way of accommodating both parties’ interests in the most effective way. I quote: “One thing to remember is that employers are not obliged to pay a salary during maternity leave: thus, in my view, the partner who earns a higher salary would probably be better off working (provided that partner is not the pregnant one).” “UIF – obviously the claimant must be a contributor to the Fund via her employment. Claims can be made if the baby is adopted under the conditions described in the Child Care Act, is under 2 years old and cared for by you when you’re not working. Only one partner or spouse may claim and claims must be done within 6 months of the court approving the adoption.” To encapsulate the “ML-saga”: when you decide to take on the “exhilarating” ride of becoming parents, it is advisable to decide before the time how you want to manage the process; which conception method you are most comfortable with and how will you manage the “welcoming and adjusting” period thereafter. What roles will suit your situation and household the best? Take responsibility for the process and accumulate your annual leave to add to you family responsibility leave. Be aware that accumulation of leave is an employer prerogative and you should always have an agreement with your employer, upfront, about accumulating leave for this purpose. Annual leave is legislated and if your employer is amenable to allowing you to accumulate it, an agreement should reduced to writing to protect both you and your employer. If your employer agrees, it will enable you to spend time with baby and provide support to your partner. Many employers treat these situations very fairly when informed and kept updated from the beginning about your intentions. Should you feel that you have been treated unfairly, there are always people such as Jaqui that believe in “fair labour practices”. the fair labour practice provides innovative solutions to both individuals and corporate clients. They consult on various issues, ranging from employment (start to finish), benefit structures, conflict management, training and development as well as assisting individuals who have limited access to the law due to financial or other (life-skills) constraints. Based in Norwood, Johannesburg, they work nationally depending on client’s requirements. They list some large and medium-sized corporates amongst their clients, as well as countless individuals. They have a reputation of fiercely fighting for what they believe to be fair. Jaqui Perkes, Managing Director of the fair labour practice can be contacted on: Tel (011) 728 8733 Fax (011) 728 0441 jaquip@fairlabour.co.za – Issued by Baby-ventures Related features Same-sex Couples and Surrogacy in South Africa