Starting a family through surrogacy is both exciting and complex. Alongside the emotional and medical aspects, there are important legal and practical questions that must be answered. One of the most common concerns relates to parental leave. Many commissioning parents want to know whether they share leave with the surrogate, and how the law treats each party after the birth of the child.
In South Africa, the position is clear. The shared parental leave pool applies to the commissioning parents, who become the legal parents of the child. The surrogate does not form part of that shared leave pool. However, she does have her own legal entitlement to maternity leave for physical recovery after giving birth. These rights exist separately and serve different purposes.
Understanding the distinction is important for proper planning and to avoid misunderstandings with employers or between the parties involved.
The Legal Framework Governing Surrogacy & Leave
Surrogacy in South Africa is regulated by the Children’s Act 38 of 2005. Before a surrogate becomes pregnant, the surrogacy agreement must be confirmed by the High Court. Once the child is born, the commissioning parents are recognised as the legal parents from birth.
Parental leave, on the other hand, is governed by employment legislation. The relevant law is the Basic Conditions of Employment Act 75 of 1997, commonly referred to as the BCEA. This Act sets out minimum employment standards, including maternity and parental leave.
The Children’s Act determines who the legal parents are. The BCEA determines what leave rights employees have. These two legal frameworks operate independently but must be read together in surrogacy matters.
The Commissioning Parents’ Parental Leave
In a confirmed surrogacy arrangement, the commissioning parents are entitled to share a pool of parental leave. The total available leave totals 4 months and 10 days. This entitlement belongs to the commissioning parents collectively, and they may divide it between themselves in a way that suits their family and employment circumstances.
The law does not prescribe how the leave must be allocated. One parent may take the full four months, while the other takes ten days. Alternatively, the parents may split the four months equally or structure their leave so that it overlaps. The arrangement depends on their personal and professional needs, provided they comply with notice requirements and their employer’s procedures.
This leave is intended to allow the legal parents to care for and bond with their child. It is a childcare-based right, not a medical one.
The Surrogate’s Maternity Leave
Although the surrogate does not share in the parental leave pool, she is still entitled to maternity leave under the BCEA. This entitlement is based on her status as the birthing mother and exists to protect her health and recovery.
The law provides that no woman may work for six weeks after giving birth unless a medical practitioner certifies that she is fit to return to work earlier. This protection applies to all birthing mothers, including surrogates.
The surrogate’s leave is therefore health-based. It ensures that she has adequate time to recover physically from pregnancy and childbirth. It does not relate to bonding with the child, as she is not the legal parent once the surrogacy agreement has been confirmed and the child is born.
Importantly, the surrogate’s maternity leave does not reduce or affect the commissioning parents’ parental leave. Each entitlement exists separately and serves a distinct purpose.
Payment During Leave and UIF Benefits
It is important to distinguish between the right to take leave and the right to be paid during leave. The BCEA guarantees leave, but payment depends on several factors, including the employment contract, company policy, and eligibility for benefits.
Commissioning parents may apply for parental benefits through the Unemployment Insurance Fund if they meet the contribution requirements. Similarly, a surrogate may apply for maternity benefits from the UIF during her recovery period.
Eligibility for UIF benefits depends on factors such as the employee’s contribution history, income level, and proper submission of documentation. Administrative delays are not uncommon, and careful preparation can help avoid financial strain during this period.
Because each employment situation is different, individual legal advice is often necessary to understand what payments can be expected.
Practical Planning Before the Birth
Parental leave should be discussed well before the expected birth date. Commissioning parents should consider how they intend to divide the four months and ten days, whether they wish to take leave at the same time, and how their respective employers handle parental leave.
Employers generally require formal notice under the BCEA. Failure to comply with notice requirements can lead to complications or delays. Clear communication with human resources departments is advisable.
Financial planning is equally important. Families should consider how UIF benefits will affect their income during leave and whether additional savings are required to bridge any shortfall.
Emotional and Financial Considerations
Surrogacy arrangements involve trust, cooperation, and careful coordination. They also require realistic financial planning. Medical expenses, legal fees, and administrative processes can add up quickly.
For commissioning parents, parental leave provides an opportunity to establish routines and form a secure bond with their child. For the surrogate, maternity leave ensures physical recovery and protection from returning to work too soon after childbirth.
Understanding that these rights are separate helps prevent unrealistic expectations and protects all parties involved.
When Disputes Arise
Disputes may occur if an employer refuses leave, misinterprets the law, or delays processing documentation. There may also be confusion about UIF claims or entitlement to benefits.
In some situations, disputes can be resolved through direct communication or structured mediation. In others, legal intervention may be necessary to enforce statutory rights.
BA Attorneys assists clients with surrogacy agreement advice, parental leave disputes, employment-related family law issues and High Court applications. Early legal guidance can prevent unnecessary stress and expense.
Surrogacy and Divorce: Why It May Matter Later
Although surrogacy is often associated with family growth, circumstances can change. If commissioning parents later separate or divorce, caregiving arrangements during parental leave may become relevant in discussions about primary residence, contact arrangements and maintenance.
South African courts always consider the best interests of the child. While parental leave alone does not determine custody outcomes, it may form part of the broader factual context in a dispute.
If you are facing relationship difficulties during or after a surrogacy process, seeking advice early can help protect both your rights and your child’s stability.
A General Timeline
A typical surrogacy process begins with drafting and confirming the surrogacy agreement in the High Court. Once confirmed, the pregnancy proceeds. After the birth, the surrogate begins her maternity leave for physical recovery, while the commissioning parents implement their shared parental leave plan. UIF claims are submitted, and long-term parenting arrangements are established.
Each stage involves legal and administrative requirements. Overlooking any step can cause delays or complications.
Frequently Asked Questions
It depends on your role.
If you are the surrogate:
You qualify for maternity leave because it’s linked to pregnancy and recovery, not parenting. You can start leave up to four weeks before birth, and you must take at least six weeks off after delivery (unless medically cleared earlier). You do not qualify for parental leave.
If you are the commissioning parent:
You do not take maternity leave, but you do qualify for parental leave. As the legal parent from birth, you can take time off to care for the child. This leave is gender-neutral and can be shared between parents, with a total of four months and ten days available.
Yes. A surrogate mother is entitled to maternity leave because she is the person who physically gives birth. Under the Basic Conditions of Employment Act 75 of 1997, any birthing mother has the right to maternity leave to recover from pregnancy and childbirth.
Employees should inform their employer as early as possible once the surrogacy arrangement has been confirmed and the expected birth date is known. The Basic Conditions of Employment Act 75 of 1997 requires employees to provide written notice before taking parental leave.
In most cases, the notice should include:
– Confirmation that the employee is a commissioning parent in a surrogacy agreement
– The expected date of birth
– The intended start date of the parental leave
– The length of leave the employee plans to take
Parental leave in surrogacy arrangements is not automatically paid by the employer. The Basic Conditions of Employment Act 75 of 1997 guarantees the right to take leave, but it does not require employers to pay employees during that time.
Final Notes
Surrogacy and parental leave rights can feel overwhelming, particularly when combined with employment obligations and financial planning. Clear advice provides certainty and allows you to focus on your family.
At BA Attorneys, we assist clients across South Africa with surrogacy agreements, parental leave rights, divorce matters, custody disputes, maintenance claims and mediation.
If you are considering surrogacy, expecting a child through a surrogate, or are uncertain about your parental leave rights, Contact BA Attorneys to schedule a confidential consultation. Early guidance can protect your rights and help you plan with confidence.
