Parental leave following birth, adoption, or surrogacy

High Court ruling spells changes to parental leave provisions in BCEA

A landmark judgment was handed down by the South Gauteng High Court in Johannesburg within the last week, which heralds a significant change to the provisions for parental leave after the birth of a child in the Basic Conditions of Employment Act 75 of 1997 (BCEA). The case was brought against the Minister of Employment and Labour by Werner and Ika Van Wyk, supported by Sonke Gender Justice and the Commission for Gender Equality. Various friends of the court (Amici Curiae) were also cited. The decision concerns the periods of leave allocated to mothers and fathers of children born of the mother, as well as to adoptive parents and to parents of children conceived by surrogacy. 

The Van Wyks challenged the constitutionality of sections 25, 25A, 25B and 25C in the BCEA, which deal with maternity and parental leave. The case was upheld and the High Court declared the provisions of these sections and the corresponding provisions of the Unemployment Insurance Fund Act no 63 of 2001 invalid as they are inconsistent with sections 9 and 10 of the Constitution. Until remedial legislation can be enacted, the Court ordered amendments to be made to the provisions in the BCEA.

As family lawyers, we welcome these changes and see them as an important step towards greater gender equality and recognition of the importance of family life. They send a clear signal to employers and to society that the responsibilities of child care should be equally shared between mother and father, or between both parents if those parents are of the same sex. They also acknowledge that all families, however they have come about, have the same needs and rights. Let’s look at what has changed.

Parental leave

Under the BCEA prior to this judgment, birth mothers were allowed four months’ maternity leave, which could begin up to a month prior to the birth of the baby. In fact, they were not permitted to return to work less than six weeks after the birth, except with express medical consent, as this period was deemed essential for physiological recovery from childbirth. Fathers, on the other hand, were entitled to a mere 10 days’ paternity leave. This disparity was challenged as unfair discrimination against fathers. The court agreed. The words of the presiding judge are worth quoting in full, as we could not have said it better: “To accord a paltry 10 days’ leave to a father speaks to a mind-set that regards the father’s involvement in early parenting as marginal. In my view this is per se offensive to the norms of the Constitution in that it impairs a father’s dignity. Longstanding cultural norms which exalt motherhood are not a legitimate platform for a cantilever to distinguish mothers’ and fathers’ roles.” In other words, the fact that we’ve always done it this way does not make it right!

The provisions of the BCEA that deal with parental leave now read:

“An employee who is a single parent is entitled, and employees, who are a pair of parents, are collectively entitled, to at least four months’ consecutive months’ parental leave, which, in the case of a pair of parents, be taken in accordance with their election, as follows:

(a)  One or other parent shall take the whole of the period, or

(b)  Each parent shall take turns at taking the leave.

(c)  Both employers must be notified prior to the date of birth in writing of the election and if a shared arrangement is chosen, the period or periods to be taken by each of the parents must be stipulated.”

This brings South Africa into line with many other countries that allow parental leave to be shared between both parents in the most appropriate manner for their personal circumstances. It acknowledges that, in some instances, the mother’s career or personal choice may require her to return to work before four months have passed, whereas the father may be in a position to provide full-time care for the child for longer than the 10 days he was previously entitled to. The only option available to a family in this situation historically was an early return to work for the mother, leaving a very young baby with a carer. If the father wanted to stay home in her place, he would have to negotiate unpaid leave with his employer or make whatever arrangements he could.

Unfair discrimination and denial of dignity

The High Court decision rested on the premise that failure to accord  equal recognition to fathers as caregivers in the BCEA is unfair discrimination against them. Equally, the leave provisions imply that the primary caregiver is automatically the mother, who is expected bear the lion’s share of parental responsibility. The judgment states that this is a choice to be made by each set of parents, not the legislature. Denying parents this choice impairs a mother’s dignity.

Adoption

Another significant change concerns the leave period following the adoption of a child. The BCEA allowed 10 weeks’ leave to a mother who adopts a child rather than the 16 weeks provided to a “birth mother”. Leave is granted not only for physical recovery from childbirth, but to allow mothers (now parents) to bond with their child. The differentiation between birth and adoptive parents amounts to inequality, prohibited by section 9 of the Constitution, if the purpose of the leave is child nurture. Why should an adopted child – and their parents – not be entitled to the same time for bonding as any other child?

One condition of the BCEA that was unsuccessfully challenged is the cap on the age of an adopted child eligible for parental leave. Leave is only granted for the adoption of a child under two years old. Although it is arguable and entirely reasonable that a newly adopted child of any age needs time to bond with their new family, the intention of the BCEA leave policy is to allow for early child care. The judge acknowledged that an older child might indeed benefit from the full-time presence of the adoptive parents in the period immediately following adoption, but the absence of this provision does not amount to unfair discrimination, and the BCEA is not the right vehicle to regulate bonding experiences in general. He suggested the matter be addressed elsewhere, most likely in the Children’s Act. The two-year cap on parental leave following adoption remains in place.

Surrogacy

The third type of parenting considered was surrogacy. So-called “commissioning parents” – the genetically linked parents – previously enjoyed the same entitlement as adoptive parents – 10 weeks. With the exception of actual pregnancy, the position of the commissioning mother and father is identical to a birth mother and father, and the child’s need to bond with the parents (and vice versa) is the same. The BCEA is to be amended to allow commissioning parents 16 weeks’ leave, in line with birth and adoptive parents. Any other outcome would be discriminatory. All categories of parents are entitled to the same amount of leave. 

Interestingly, the BCEA says nothing about the surrogate. The laws governing surrogacy are found in chapter 19 of the Children’s Act, which is not concerned with employment law. Naturally, the surrogate mother needs time to recover from childbirth. But she does not have the responsibility of early child care, which is what parental leave is intended to facilitate. As the law stands, she is entitled to four months’ leave following childbirth, as there is no legislation to the contrary. Potentially, an employer could challenge this, but surrogacy, while legal in South Africa, is still a rare occurrence. It’s hard to imagine an employer challenging a surrogate’s right to postnatal leave.

Levelling the playing field

Ultimately, leave entitlement after the birth or adoption of a child exists for the purpose of nurturing the baby or toddler. It is not just about the literal recovery from childbirth. Therefore, the High Court concluded that the distinctions made in the BCEA are at odds with sections 9 and 10 of the Constitution and with the ethos of the Children’s Act. The variations in prescribed leave available to the three classes of parents, i.e., a birth mother and father, adoptive parents, and parents of a child born through surrogacy, therefore amount to unfair discrimination and violate the dignity of all parents. All parents – of the three categories and of both sexes – are now entitled to an equal duration of leave.

We welcome this judgment. We would further welcome the extension of the leave period from four to six months, the period for which the Department of Health recommends exclusive breastfeeding. Research has shown that many female employees often stop breastfeeding when returning to work because the working environment is not breastfeeding-friendly and appropriate facilities are not available. 

Any questions?

If you have any questions about your parental rights in the workplace, contact attorney Simon Dippenaar on 086 099 5146 or email sdippenaar@sdlaw.co.za.

Further reading:

The High Court judgment is worth reading in full.

SD Law

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