Leave Applicable to Surrogacy

The act refers that an employee may take maternity leave. It does not specify male or female.
Basic Conditions of Employment Act, 1997 (No. 75 of 19 Basic Conditions of Employment Act, 1997 (No. 75 of 1997)
Chapter Three: Leave
25. Maternity leave
  • An employee is entitled to at least four consecutive months' maternity leave.
  • An employee may commence maternity leave--
  • at any time from four weeks before the expected date of birth, unless otherwise agreed; or
  • on a date from which a medical practitioner or a midwife certifies that it is necessary for the employee's health or that of her unborn child.
  • No employee may work for six weeks after the birth of her child, unless a medical practitioner or midwife certifies that she is fit to do so.
  • An employee who has a miscarriage during the third trimester of pregnancy or bears a stillborn child is entitled to maternity leave for six weeks after the miscarriage or stillbirth, whether or not the employee had commenced maternity leave at the time of the miscarriage or stillbirth.
  • 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--
  • commence maternity leave; and
  • return to work after maternity leave.
  • Notification in terms of subsection (5) must be given--
  • at least four weeks before the employee intends to commence maternity leave;
  • if it is not reasonably practicable to do so, as soon as is reasonably practicable.
  • The payment of maternity benefits will be determined by the Minister subject to the provisions of the Unemployment Insurance Act, 1966 (Act No. 30 of 1966).
Chapter Three: Leave 27. Family responsibility leave
This section applies to an employee-
who has been in employment with an employer for longer than four months; and who works for at least four days a week for that employer.
  • An employer must grant an employee, during each annual leave cycle, at the request of the employee, three days' paid leave, which the employee is entitled to take--
  • when the employee's child is born;
  • when the employee's child is sick; or
  • in the event of the death of--
    • the employee's spouse or life partner; or
    • the employee's parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling.
Subject to subsection (5), an employer must pay an employee for a day's family responsibility leave--
  • the wage the employee would ordinarily have received for work on that day; and
  • on the employee's usual pay day.
  • An employee may take family responsibility leave in respect of the whole or a part of a day.
  • Before paying an employee for leave in terms of this section, an employer may require reasonable proof of an event contemplated in subsection (2) for which the leave was required.
  • An employee's unused entitlement to leave in terms of this section lapses at the end of the annual leave cycle in which it accrues.
  • A collective agreement may vary the number of days and the circumstances under which leave is to be granted in terms of this section.