In a groundbreaking ruling, a Durban court has ruled that a gay father will be granted full maternity leave to take care of his surrogate child.

According to Mambaonline.com, the Labour Court yesterday found that it is discriminatory to refuse to give a male member of a same-sex couple who is the main caretaker of a child the equivalent maternity leave given to biological mothers.

The man, an IT specialist at the State Information Technology Agency, will be given four months’ paid leave to take care of his child, who was conceived through a surrogate mother in 2011.

The man took legal action after his employer granted him only two months’ paid leave and two months’ unpaid leave. He will now take the other two months’ leave.

“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,” said Judge David Gush, who handed down the ruling.

The judge also noted that the ruling would be in the child’s best interest.

The ruling could set a precedent in how companies draw up parental leave policies in the future and could lead to changes in South Africa’s Basic Conditions of Employment Act.
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