Statutory Parental, Adoption and Commissioning Parental Leave under the BCEA

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Howes Inc. Office
  1. Introduction
    1. Prior to 1 January 2020, the only South African legislation that made provision for a parent of a child (other than the parent giving birth to the child) to take time off work in the event of a birth of a child, was section 27 of the Basic Conditions of Employment Act (“the BCEA”) which provided for 3 (three) days paid leave in terms of “Family Responsibility leave”.
    2. Fortunately, in December 2019, the President proclaimed that inter alia section 3 of the Labour Laws Amendment Act 10 of 2018 would come into operation with effect from 1 January 2020.
    3. Section 3 of the Labour Laws Amendment Act 10 of 2018 introduced section 25A, section 25B and section 25C of the BCEA. The introduction of these new provisions has brought about the long-awaited and necessary changes to statutory leave regulations governing parental leave, adoption leave and commissioning parental leave in South Africa.
    4. In terms of the amendments, employees are now entitled to claim parental leave (section 25A), adoption leave (section 25B) or commissioning parental leave (section 25C) when their child is born. Payment in respect of any statutory leave taken in terms of the new provisions, is regulated in terms of the Unemployment Insurance Act of 2001.
    5. The three new categories of statutory leave afforded to South African employees is addressed below.
  2. Parental Leave
    1. Parental leave is governed in terms of section 25A of the BCEA. This provision permits a parent of a child to take at least 10 (ten) consecutive days statutory parental leave.
    2. The qualifying criteria to obtain this leave, is that the employee needs to be a parent of the child being born. This provision does not only include leave for biological fathers, it also includes parental leave in respect of instances where an adoption order is granted or where a child is placed in the care of a prospective adoptive parent by a court.
    3. Section 25A reflects the following:
      Parental leave 25A.
      1. An employee, who is a parent of a child, is entitled to at least ten consecutive days parental leave.
      2. An employee may commence parental leave on—
        (a) the day that the employee’s child is born; or
        (b) the date—
        (i) that the adoption order is granted; or
        (ii) that a child is placed in the care of a prospective adoptive parent by a competent court, pending the finalisation of an adoption order in respect of that child, whichever date occurs first.
      3. An employee must notify an employer in writing, unless the employee is unable to do so, of the date on which the employee intends to—
        (a) commence parental leave; and
        (b) return to work after parental leave.
      4. Notification in terms of subsection (3) must be given—
        (a) at least one month before the—
        (i) employee’s child is expected to be born; or
        (ii) date referred to in subsection 2(b); or
        (b) if it is not reasonably practicable to do so, as soon as is reasonably practicable.
      5. The payment of parental benefits will be determined by the Minister subject to the provisions of the Unemployment Insurance Act, 2001 (Act No. 63 of 2001).”
    4. The right to parental leave benefits is regulated in terms of section 26A-26C of the Unemployment Insurance Act of 2001. The maximum period of parental leave that will be paid for by the Unemployment Insurance Fund, in terms of the said provisions is 10 (ten) days.
  3. Adoption Leave
    1. Section 25B of the BCEA governs statutory adoption leave. In terms of this section, an adoptive parent of a child (who is below the age of 2 years) is permitted to take adoption leave of at least 10 (ten) consecutive weeks or parental leave in terms of section 25A.
    2. In circumstances where there are two adoptive parents who have obtained an adoption order, the one adoptive parent may apply for adoption leave under this provision (section 25B), and the other adoptive parent must apply for parental leave in terms of section 25A. Furthermore, where a court orders that a child be placed in the care of two prospective adoptive parents, pending the finalisation of an adoption order, the one adoptive parent may apply for leave under section 25B, and the other adoptive parent may apply for parental leave in terms of section 25A.
    3. An employee who intends taking adoption leave must notify his/her employer at least 1 (one) month before commencing adoption leave and thereafter the date upon which he/she will return to work following the adoption leave.
    4. Section 25B records the following:
      Adoption leave 25B.
      1. An employee, who is an adoptive parent of a child who is below the age of two, is subject to subsection (6), entitled to—
        (a) adoption leave of at least ten weeks consecutively; or
        (b) the parental leave referred to in section 25A.
      2. An employee may commence adoption leave on the date—
        (a) that the adoption order is granted; or
        (b) that a child is placed in the care of a prospective adoptive parent by a competent court, pending the finalisation of an adoption order in respect of that child, whichever date occurs first.
      3. An employee must notify an employer in writing, unless the employee is unable to do so, of the date on which the employee intends to—
        (a) commence adoption leave; and
        (b) return to work after adoption leave.
      4. Notification in terms of subsection (3) must be given—
        (a) at least one month before the date referred to in subsection (2); or
        (b) if it is not reasonably practicable to do so, as soon as is reasonably practicable.
      5. The payment of adoption benefits will be determined by the Minister subject to the provisions of the Unemployment Insurance Act, 2001 (Act 10 No. 63 of 2001).
      6. If an adoption order is made in respect of two adoptive parents, one of the adoptive parents may apply for adoption leave and the other adoptive parent may apply for the parental leave referred to in section 25A: Provided that the selection of choice must be exercised at the option of the two adoptive parents.
      7. If a competent court orders that a child is placed in the care of two prospective adoptive parents, pending the finalisation of an adoption order in respect of that child, one of the prospective adoptive parents may apply for adoption leave and the other prospective adoptive parent may apply for the parental leave referred to in section 25A: Provided that the selection of choice must be exercised at the option of the two prospective adoptive parents.”
    5. The right to claim adoption leave benefits is regulated in terms of section 27 and 28 of the Unemployment Insurance Act of 2001. The maximum period of adoption leave that will be paid for by the Unemployment Insurance Fund, under the said provisions is 10 (ten) consecutive weeks.
  4. Commissioning Parental Leave
    1. When considering Commissioning Parental Leave in terms of section 25C of the BCEA, one should have due regard to chapter 19 of the Children’s Act 38 of 2005 (“the Children’s Act”) as this chapter regulates surrogate motherhood and surrogate motherhood agreements.
    2. It is in the context of the Children’s Act, that the term, ‘commissioning parent’ is defined. Section 1 of the Children’s Act defines what a ‘commissioning parent’ is, what a ‘surrogate mother’ is and what a ‘surrogate motherhood agreement’ is:
      commissioning parent” means “a person who enters into a surrogate motherhood agreement with a surrogate mother;
      surrogate mother” means “an adult woman who enters into a surrogate motherhood agreement with the commissioning parent;” and
      surrogate motherhood agreement” means “an agreement between a surrogate mother and a commissioning parent in which it is agreed that the surrogate mother will be artificially fertilised for the purpose of bearing a child for the commissioning parent and in which the surrogate mother undertakes to hand over such a child to the commissioning parent upon its birth, or within a reasonable time thereafter, with the intention that the child concerned becomes the legitimate child of the commissioning parent”
    3. Section 292 of the Children’s Act sets out the legal requirements that the parties to a surrogate motherhood agreement must comply with in order to secure a valid surrogate motherhood agreement in South Africa. In terms of this section, a surrogate motherhood agreement must inter alia be in writing and must be confirmed by the High Court in order for the agreement to be valid and binding. Section 292 reads as follows:
      1. No surrogate motherhood agreement is valid unless-
        (a) the agreement is in writing and is signed by all the parties thereto;
        (b) the agreement is entered into in the Republic;
        (c) at least one of the commissioning parents, or where the commissioning parent is a single person, that person, is at the time of entering into the agreement domiciled in the Republic;
        (d) the surrogate mother and her husband or partner, if any, are at the time of entering into the agreement domiciled in the Republic; and
        (e) the agreement is confirmed by the High Court within whose area of jurisdiction the commissioning parent or parents are domiciled or habitually resident.
      2. A court may, on good cause shown, dispose with the requirement set out in subsection (1)(d)”.
    4. In addition, section 295 of the Children’s Act requires that parties meet additional requirements before the High Court will confirm the surrogate motherhood agreement.
      Section 295 records:
      “A court may not confirm a surrogate motherhood agreement unless-
      (a) the commissioning parent or parents are not able to give birth to a child and that the condition is permanent and irreversible;
      (b) the commissioning parent or parents –
      (i) are in terms of this Act competent to enter into the agreement;
      (ii) are in all respects suitable persons to accept the parenthood of the child that is to be conceived; and
      (iii) understand and accept the legal consequences of the agreement and this Act and their rights and obligations in terms thereof;
      (c) the surrogate mother-
      (i) is in terms of this Act competent to enter into the agreement;
      (ii) is in all respects a suitable person to act as surrogate mother;
      (iii) understands and accepts the legal consequences of the agreement and this Act and her rights and obligations in terms thereof;
      (iv) is not using surrogacy as a source of income;
      (v) has entered into the agreement for altruistic reasons and not for commercial purposes;
      (vi) has a documented history of at least one pregnancy and viable delivery; and
      (vii) has a living child of her own;
      (d) the agreement includes adequate provisions for the contact, care, upbringing and general welfare of the child that is to be born in a stable home environment, including the child’s position in the event of the death of the commissioning parents or one of them, or their divorce or separation before the birth of the child; and
      (e) in general, having regard to the personal circumstances and family situations of all the parties concerned, but above all the interests of the child that is to be born, the agreement should be confirmed.”
    5. Furthermore, section 296 of the Children’s Act records inter alia that no artificial fertilisation of the surrogate mother may take place prior to the surrogate motherhood agreement being confirmed by the court. In the event that a medical practitioner assists a surrogate mother and the commissioning parents with the artificial fertilisation prior to the agreement being approved by the High Court, the medical practitioner will be guilty of an offence in terms of section 305 of the Children’s Act.
    6. Section 297 sets out the legal effect of a valid surrogate motherhood agreement and that of an invalid surrogate motherhood agreement on the status of the child.
      1. The effect of a valid surrogate motherhood agreement is that-
        (a) any child born of a surrogate mother in accordance with the agreement is for all purposes the child of the commissioning parent or parents from the moment of the birth of the child concerned;
        (b) the surrogate mother is obliged to hand the child over to the commissioning parent or parents as soon as is reasonably possible after the birth;
        (c) the surrogate mother or her husband, partner or relatives has no rights of parenthood or care of the child;
        (d) the surrogate mother or her husband, partner or relatives have no right of contact with the child unless provided for in the agreement between the parties;
        (e) subject to sections 292 and 293, the surrogate motherhood agreement may not be terminated after the artificial fertilisation of the surrogate mother has taken place; and
        (f) the child will have no claim for maintenance or of succession against the surrogate mother, her husband or partner or any of their relatives.
      2. Any surrogate motherhood agreement that does not comply with the provisions of this Act is invalid and any child born as a result of any action taken in execution of such an arrangement is for all purposes deemed to be the child of the woman that gave birth to that child.”
    7. From the above, it follows that where the surrogate motherhood agreement does not comply with the provisions of the Children’s Act, the agreement will be considered invalid. Any child that is then born as a result of any action taken in execution of such an arrangement, is for all purposes deemed to be the child of the woman that gave birth to that child. In other words, the surrogate mother will be the mother of the child, and not the commissioning parents, irrespective of the verbal agreement or the written agreement.
    8. Where there is an invalid agreement, the parties may have to consider inter alia approaching the High Court for the ratification of the surrogate motherhood agreement, or alternatively the parties may have to remedy the situation by following a formal adoption process, or utilising the provisions of section 22 of the Children’s Act or such other application that may be required, depending on the facts of the case.
    9. As such, where there is a surrogate motherhood agreement as defined by the Children’s Act, a commissioning parent who requires time off work to take care of the child that is born in terms of a surrogate motherhood agreement, will be afforded at least 10 (ten) consecutive weeks of statutory parental commissioning leave in terms of S25C of the BCEA.
    10. Section 25C of the BCEA records the following: Commissioning parental leave 25C.
      1. An employee, who is a commissioning parent in a surrogate motherhood agreement is, subject to subsection (6), entitled to—
        (a) commissioning parental leave of at least ten weeks consecutively; or
        (b) the parental leave referred to in section 25A.
      2. An employee may commence commissioning parental leave on the date a child is born as a result of a surrogate motherhood agreement.
      3. An employee must notify an employer in writing, unless the employee is unable to do so, of the date on which the employee intends to—
        (a) commence commissioning parental leave; and
        (b) return to work after commissioning parental leave.
      4. Notification in terms of subsection (3) must be given—
        (a) at least one month before a child is expected to be born as a result of a surrogate motherhood agreement; or
        (b) if it is not reasonably practicable to do so, as soon as is reasonably practicable.
      5. The payment of commissioning parental benefits will be determined by the Minister subject to the provisions of the Unemployment Insurance Act, 2001 (Act No. 63 of 2001).
      6. If a surrogate motherhood agreement has two commissioning parents, one of the commissioning parents may apply for commissioning parental leave and the other commissioning parent may apply for the parental leave referred to in section 25A: Provided that the selection of choice must be exercised at the option of the two commissioning parents.
      7. In this section, unless the context otherwise indicates— ‘commissioning parent’ has the meaning assigned to it in section 1 of the Children’s Act, 2005 (Act No. 38 of 2005); and 50 ‘surrogate motherhood agreement’ has the meaning assigned to it in section 1 of the Children’s Act, 2005 (Act No. 38 of 2005).’’
    11. The right to commissioning parental benefits as reflected above, is regulated in terms of section 29A-29C of the Unemployment Insurance Act of 2001. The maximum period of commissioning parental leave that will be paid for by the Unemployment Insurance Fund, under the said provisions is 10 (ten) consecutive weeks.
  5. Conclusion
    1. The amendments to the BCEA and the Unemployment Insurance Fund have brought about a far more favourable position for paternal fathers, adoptive parents and commissioning parents in South Africa.
    2. Despite the vast improvements brought about by the amendments to the BCEA, nothing prevents an employer from granting leave provisions and benefits that exceed and improve on the basic minimum statutory provisions that are set out within the BCEA. Employers may not however reduce the minimum statutory leave provisions that are reflected within the BCEA.
    3. Employers should take suitable measures to ensure that internal policies and procedures together with contracts of employment are updated to provide for no less leave provisions than those leave provisions as set out within the amendments. Failure to grant employees the statutory leave as set out above, may result in inter alia litigation by staff to enforce their rights, a possible visit from the Department of Labour, and/or damage to the name and reputation to the employer.
    4. In addition, employers should revise their internal policies and procedures to outline the rights of all employees falling within section 25A-25C, and then consider whether it is possible that some workplace practices may need to be updated, so as to avoid possible discriminatory practices. An employer needs to be alive to the possibility of claims of discrimination where matters aren’t carefully considered and where fair treatment to all categories of parents is not observed.
    5. For example, where an internal policy provides for a biological mother to exercise an option to take an additional two months’ leave from work (unpaid) after the initial 4(four) months of maternity leave, the company should consider extending the same option to an adoptive mother (who has adopted a child below the age of 2) or a commissioning mother after exhausting the 10 (ten) weeks statutory adoption or commissioning parental leave.
    6. Where there are queries regarding the impact of the amendments in the workplace, it is always advisable to seek clarity and assistance from an attorney who specialises in the industry, so that a tailor made solution can be provided.

Deanne Howes
Please note that this summary does not in any way constitute legal advice by Howes Inc to you or your company, as it is a summary of the BCEA amendments and the possible impact in the workplace. Should you or your company have any queries in relation to a matter of this nature, please contact our office for tailored advice, that is applicable to your/your company’s particular situation.