Bid for equal benefits for adoptive, surrogate parents

This article was written for IOL
By Kamini Padayachee

While new proposed legislation would offer 10 days of parental leave and new leave provisions for parents who adopt or have children through surrogates, gender activists argue that all parents should have the same parental leave benefits.

The Labour Law Amendment Bill is currently with Parliament’s portfolio committee on labour, which is considering submissions made last month by Sonke Gender Justice jointly with the Mosaic Training, Service and Healing Centre for Women, and by Cosatu.

The bill was drafted by the African Christian Democratic Party in line with its policy on family values, as the party argued that provision should be made in the law for “paternity leave”.

Currently fathers may take three days of family responsibility leave when their children are born, but some companies have internal policies that see them offering more.

The bill proposes that any parent who is not entitled to maternity leave can apply for 10 days’ parental leave after a child is born or when an adoption order is granted. This leave would be paid for from the Unemployment Insurance Fund.

It also provides for an adoptive parent who adopts a child younger than 2, or a parent who has a child through a surrogate, to be entitled to 10 weeks’ leave.


In both scenarios, the second parent would be entitled to 10 days of parental leave.

There is currently no provision made for adoptive parents or those who have children through surrogacy.

Last year a Durban Labour Court judge ruled that a gay father, who was the primary caregiver to a baby born through surrogacy, should be entitled to the same maternity leave as a woman.

Wessel van den Berg, of Sonke Gender Justice, said the organisation, together with Mosaic, had proposed that there should be no distinction between the leave benefits that biological parents and other parents received.

He said they had also proposed that women be entitled to six months’ maternity leave rather than the current four months, as this was in line with the World Health Organisation recommendation that children be breast-fed for six months after birth.

Van den Berg said adoptive and surrogate parents should also be entitled to six months’ maternity leave, and 10 days of leave for the secondary caregiver.

He questioned the limit on leave for adoptive parents based on the age of the adopted child.

“The limit of leave for adoptive parents is not correct because even if the child is 8 or 9, the adoptive parents still need an opportunity to bond with the child.”

Van den Berg said based on the submissions, the portfolio committee would decide whether to amend the bill and then send it on to the National Council of Provinces.