By Purity Ngigi – Sundays
Parliament proposed an amendment to the Employment Bill in 2019. The bill includes paid adoption leave for a female employee who adopts a child of two years or less.
And two months of paid leave for a female employee who gets a child through a surrogacy parenthood agreement. It also includes one month leave for a female employee who goes through a stillbirth.
The bill provides a two-week paternity leave to a male employee in the case of adoption or surrogacy. In such cases, the employee shall give one month’s notice from the adoption’s intended date. The intended date is when the child is placed in the employees care or when the adoption order is delivered.
The provision of one month’s notice from the date of intended adoption is an extended period than the seven days notice currently required of parents intending to proceed for maternity/paternity leave.
However, earlier in February 2021, the president rejected the bill providing for the adoption leave. The president sent a memorandum to parliament indicating that his reason for dismissing the bill is that there is no law governing surrogate motherhood in Kenya. Such provision would be operating in a vacuum in the absence of a legal framework governing surrogacy.
Parliament intends to promulgate a law governing surrogacy through the Reproductive Health Bill of 2019. This bill is under debate in the Senate as of September 2020. Currently, surrogacy agreements govern surrogate parenthood in Kenya and are implemented through the adoption process under the Children’s Act. This law does not provide for parental leave in the case of surrogacy or adoption.
In the absence of such law and practice, employees who acquire parental responsibility under adoption or surrogacy use their accrued annual leave days to enable them to be present for their children. Alternatively, the employer may grant the employee (by consent and discretion of the employer) compassionate leave. This period may, however, be shorter than what is ideally envisioned by the bill. The bill sought to cure this by the provision of adoptive leave.
Under the Employment Act, female employees have a right to three months of maternity leave with full pay. Male employees have two weeks of paternity leave with full pay for male employees. Should the bill be assented to, employees will be entitled to adoption leave in addition to maternity/paternity leave.
The labour and social welfare committee shall consider the president’s memorandum and share a report with parliament within 21 days. Parliament shall vote to overturn or uphold the president’s directive.
We shall track this bill’s progress and keep you informed on its developments and its effect on your business.