Understanding Parental, Adoption & Commissioning Parental Leave | Legal Articles


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Understanding Parental, Adoption & Commissioning Parental Leave

The Labour Laws Amendment Act 10 of 2018 (LLAA) amended the Basic Conditions of Employment Act 75 of 1997 with regards to categories of leave, as well as unemployment insurance (UIA). It introduced the parental, adoption and commissioning parental (surrogacy) leave. This means that employees are now legally entitled to these types of leave in suitable circumstances. While maternity leave is for female employees who give birth, parental leave is much broader and is inclusive of fathers in heterosexual relationships, females in same sex relationships, or males in same sex relationships.

In the table below we will present some of the most important aspects with regards to parental, adoption and commissioning parental (surrogacy) leave.






Whom it applies to


Parent of child born

Adoptive parent of a child below the age of 2 years

Commissioning parent in terms of a surrogacy agreement

Leave period


10 consecutive days


10 consecutive weeks

10 consecutive weeks to primary care-giving commissioning parent

Required documents to apply

Birth certificate

Adoption Order of the Court

Commissioning Parent Agreement

Notification to employer

1 month notice or asap prior to expected birth

1 month before date of adoption or asap.

1 month notice or asap prior to expected birth

Paid or unpaid?

Unpaid (employer discretion)

Unpaid (employer discretion)

Unpaid (employer discretion)

Any UIF benefits?





Kindly take note of the below;

  • In the case of opposite sex parents of a child, the mother would ideally take maternity leave (if biological) whilst the father takes the parental leave.
  • In the case of same sex male relationship, one parent may take parental leave while the other may take the adoption or commissioning parental leave.
  • Where same sex female relationship is concerned, the biological mother may take the maternity leave while the other takes parental leave.
  • Employers may require proof of what category of leave the other parent has been granted to avoid abuse whereby both parents take the same type of leave.


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