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Paternity Leave, Surrogacy and Adoption leave

Paternity Leave, Surrogacy and Adoption Leave Explained

The Basic Conditions of Employment Act (BCEA), section 27 thereof, provides for three days’ family responsibility leave for employees when their child is born. Should they require more time they have the option of taking annual leave, in addition to their three days’ family responsibility leave entitlement (per leave cycle). The family responsibility leave for when a child is born, however, is only applicable to employees who have been employed for at least 4 months and who work at least 4 days a week for the same employer. The BCEA currently does not make any provision for paternity leave as such, neither does it make provision for leave in cases of adoption or surrogacy.

Recently parliament adopted the Labour Laws Amendment Bill which aims to regulate parental leave. This includes parental leave paid for by the Unemployment Insurance Fund (UIF).  The bill was introduced by African Christian Democratic Party (ACDP) MP Cheryllyn Dudley, and received support across the political spectrum.

The bill essentially allows for “parental leave”, “adoption leave”, and “commissioning parental leave”.

  • Parental Leave
    • Includes 10 days’ consecutive leave to an employee who is a parent of a child. This leave may be taken from the day that the child is born or the day the adoption order is granted
  • Adoption leave
    • Includes 10 consecutive weeks’ leave to an employee who is an adoptive parent of a child who is below the age of two. This leave may be taken from the day the adoption is granted.
  • Commissioning parental leave
    • Refers to an employee who is a commissioning parent in a surrogate motherhood agreement
    • It includes 10 consecutive weeks’ leave and may be taken from the date the child is born as a result of a surrogate motherhood agreement

Adoptive parents and surrogate parents thus have the option of taking parental leave or adoption leave / commissioning parental leave, as the case may be, but should an adoption order be made in respect of two adoptive parents, one may apply for adoption leave and the other for parental leave. Similarly, should a surrogate motherhood agreement have two commissioning parents, one may apply for commissioning parental leave and the other for ordinary parental leave.

The Bill is currently with the National Council of Provinces (NCOP), and should it be approved, will await the Presidential Signature, after which it will be seen as an Act of Parliament and become a law.