The main issues surrounding baby making in the workplace revolve around the concept of pregnancy discrimination. Those who have babies through surrogacy or adoption fight to get maternity leave because their employers contend that they were never pregnant in the natural sense of the word. This also leads to issues of paternity leave. Those who can get pregnant are deemed to be incompetent, hormonal and are afforded little to no reasonable accommodation whereas the increase of women in the workplace has highlighted the need to develop workplace policies that protect women, especially during pregnancy.
The definition of pregnancy includes intended pregnancy, termination of pregnancy and any medical circumstances related to pregnancy. Although the definition does not allude to potential pregnancy it can be appreciated that women (and men) of full age may be perceived as likely to become pregnant and/or to have babies.
Everyone is equal before the law and has the right to equal protection and benefit of the law (right to equality) in terms of Section 9 of the Constitution. The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, and birth.
States have an obligation to promote equality and prohibit unfair discrimination. Among these obligations are those specified in the Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on the Elimination of All Forms of Racial Discrimination. South Africa has various pieces of legislation which give effect to Section 9 of the Constitution and are aimed at addressing discrimination in order to promote equality, and to prevent, prohibit and eradicate harassment and unfair discrimination in line with international treaties and conventions.
Section 6 of the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000 (PEPUDA – The Equality Act) expressly prohibits discrimination. Section 8 of PEPUDA is women centric and prevents unfair discrimination on the grounds of gender and also lists pregnancy as a prohibited ground.
Section 6(1) of the Employment Equity Act 55 of 1998 prohibits unfair direct or indirect discrimination against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or on any other arbitrary ground.
Section 26 of the Basic Conditions of Employment Act 75 of 1997 (BCEA) read together with Section 15(2) of the Employment Equity Act and Item 5 of the Code of Good Practice on the Protection of Employees During Pregnancy and after Childbirth place a duty on the employer to reasonably accommodate employees during the pregnancy, immediately after the birth of the baby and while breast feeding. A failure to reasonably accommodate and recognize pregnancy and maternity, and in general the reproductive role, can constitute discrimination.
Section 23(1) of the Constitution provides that everyone has a right to fair labour practices. Chapter 8 of the Labour Relations Act 66 of 1995 deals with unfair dismissals and unfair labour practices. In terms of Section 187(1) (e) of the LRA a dismissal will be automatically unfair if the employer if the reason for the dismissal is the employee’s pregnancy, intended pregnancy, or any reason related to pregnancy. Prospective employees may not be asked about their baby making plans, not be employed on account of their gender (because women might get pregnant) and dismissed for having babies.
The employee is entitled to four months of maternity leave and unfortunately South African labour laws are still light years from development because the maternity leave in unpaid. Maternity benefits can be claimed though the Department of Labour and in order to qualify for this benefit the employee must have been employed for a period of no less than thirteen weeks. The employee has a duty to hold the employee’s job open until their return from maternity leave. Furthermore, maternity leave does not take away from the employee’s annual leave as mandated in Section 20 of the BCEA (15 working days).
Maternity leave commences one calendar month before the expected date of birth of the child. There is no legislated onus on the employee to disclose the pregnancy to the employer save that the employee is obliged to give the employer one month’s notice prior to the commencement of maternity leave. In the case of adoption, the employee must give the employer one month’s notice from the date on which the adoption order is granted or one month from the day that a competent court places the child in the care of a prospective adoptive parent. If it is not possible for the employee to give one month’s notice, the employee must notify the employer as soon as is reasonably practicable.
The concept of family is dynamic and rapidly changing. The disparity between maternity, commissioning and ordinary parental leave could open the door to possible claims of unfair discrimination. In Minister of Home Affairs v Fourie the court held that “South Africa has a multitude of family formations that are evolving rapidly as our society develops, so that it is inappropriate to entrench any particular form as the socially and legally acceptable one.” The concept of family now also applies to same-sex couples, persons in civil unions, cohabiting persons in permanent life partnerships and single people. It is with this spirit that with effect from the 1st of January 2020, the BCEA was amended to extend parental, adoption and commissioning parental leave periods.
A parent of a child will be entitled to 10 consecutive calendar days (not working days) parental leave irrespective of gender. This introduction of parental leave effectively replaces the three days’ paid paternity leave previously provided for in the BCEA, however, family responsibility leave associated with the illness of a child, or the death of a close family member remains unchanged.
A single adoptive parent to a child under the age of two is entitled to 10 consecutive weeks’ adoption leave. If there are two adoptive parents, only one would be entitled to 10 consecutive weeks’ adoption leave and the other adoptive parent would be entitled to 10 consecutive days’ normal parental leave.
A commissioning parent who will primarily be responsible for looking after the child (primary commissioning parent) will be entitled to 10 consecutive weeks of commissioning parental leave and the other parent will be entitled to 10 consecutive days’ normal parental leave.
The amendments do not make provision for any leave that may be taken by the surrogate mother however it is important to note that what a woman does with the baby after birth does not impact her right to maternity leave. Hence surrogates will also probably be entitled to four months of maternity leave although there is no baby at home to care for and bond with because they qualify as pregnant employees. The surrogate would however definitely be entitled to maternity leave in terms of Section 25(3) of the BCEA which prohibits employees from working for six weeks after giving birth to a child unless cleared by a medical practitioner or midwife.
Article 16 of the Universal Declaration of Human Rights provides that all men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. Summarily everyone has a right to have babies by any legal means. There is no express right to family life in South Africa. The right is derivative of other tights such as the right to equality, dignity, life and the right to reproductive autonomy. Apart from the desire to make babies, baby makers also have to take into consideration how the baby making impacts their careers especially in the case of women. Employers must practice fair labour practice which do not unfairly discriminate against parents in the workplace.
Due to the substantial legal protections of employees, employers cannot afford to treat parents who are also parents in a way thy believe is fair. Instead, employers need to utilise the services of labour law experts to devise and implement detailed strategies for ensuring the welfare of working parents and for minimising the effect of parenthood on workplace productivity without breaking the law.
Family is the pillar of society, human beings have a tendency to want to make babies, ergo, the workplace must be baby friendly and hopefully humanity evolves fast enough to actually allow said babies into the workplace.
Sources: M I A v State Information Technology Agency (Pty) Ltd  7 BLLR 694 (LC), Ekhamanzi Springs (Pty) Ltd v Mnomiya  8 BLLR 737 (LAC), Wallace v Du Toit  8 BLLR 757 (LC), Association of Professional Teachers & another v Minister of Education & others (1995) 16 ILJ 1048 (IC), Leonard Dingler Employee Representative Council & others v Leonard Dingler (Pty) Ltd & others (1998) 19 ILJ 285 (LC), Lewis v Media 24 Ltd 2010) 31 ILJ 2416 (LC)