An employee who is a commissioning parent in a surrogate motherhood agreement is entitled to commissioning parent leave of at least 10 (ten) consecutive weeks. However, should the surrogate motherhood agreement provide two commissioning parents, only one of the commissioning parents may apply for commissioning parental leave. The other commissioning parent may apply for at least ten consecutive days of parental leave. An employee may commission parental leave on the date a child is born because of the surrogate motherhood agreement. The employee will have to notify the employer in writing at least a month before a child is expected to be born. If not reasonably practical, do so, as soon as is reasonably practicable, of the date on which the employee intends to commission parental leave and when the employee will return to work after the commissioning parental leave. Maternity leave benefits as per the BCEA will apply to the employee bearing the child; thus, the employee may begin maternity leave from four weeks before the expected date of birth, unless otherwise agreed upon, or on the date a medical practitioner or midwife certifies it is necessary for the employee‘s health or that of her unborn child. The employee may not work for six weeks after the child’s birth unless a medical practitioner or midwife certifies that she is fit to do so. Thus, based on the above, an agreement between the employer and the employee bearing the child, in terms of a surrogate motherhood agreement, can be entered to determine as to when the employee will begin maternity leave and return to work.
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