MATERNITY, PATERNITY AND PARENTAL LEAVE AND THE BEST INTERESTS OF THE CHILD MIA v State Information Technology Agency (Pty) Ltd [2015] JOL 33060 (LC)

Abstract

Since the enactment of Chapter 19 of the Children’s Act 38 of 2005 and the decision in Ex parte WH (2011 (6) SA 514 (GNP)) it has become possible for homosexual partners, or spouses in terms of a civil union (as regulated by the Civil Union Act 17 of 2006) to enter into surrogate-motherhood agreements. The effect of such an agreement would be that the spouses/partners become the biological parents of the child born of surrogacy. All children, regardless of their parentage or manner of conception, have the constitutionally enshrined right to “family care or parental care” (s 28(1)(b) of the Constitution of the Republic of South Africa, 1996) and the best interests of the child should always be regarded as “of paramount importance in every matter concerning the child” (s 28(2)). It is in light of the acknowledgment of these rights of both homosexual parents, and children begotten from surrogacy, that the case of MIA v State Information Technology Agency (Pty) Ltd ([2015] JOL 33060 (LC) (hereinafter “MIA”)) came before the Labour Court. In MIA a male commissioning parent successfully claimed maternity leave in terms of a surrogate-motherhood agreement. The judgment effectively illustrates the superiority of the Constitution and the prominence of the best interests of the child in all matters relating to children. Determining the best interests of the child requires a process of balancing the rights, duties and interests of the parties to the surrogate-motherhood agreement, as well as that of the greater society. Surrogate-motherhood agreements affect various areas of the law relating to children and families. The problem, however, lies therein that law is often seen as compartmentalised and unrelated to, or unaffected by the Bill of Rights and the Constitution. In MIA, the Court based its decision on the constitutionally protected rights of both parent and child and highlighted the intertwined nature of these rights. In this case the author will address the facts and decision in MIA, as well as progressive and problematic matters arising from the judgment. Thereafter, I shall evaluate the White Paper on Families (approved by Cabinet on 26 June 2013) and how it relates to the importance of the family as a social institution. I shall also discuss the potential implications of the judgment and the White Paper on Families for maternity, paternity and parental leave in South Africa.