Have maternity rights been extended to non-birthing parents?

File picture: Pexels

File picture: Pexels

Published Feb 4, 2024


By Vinolia Mashego

The recent judgment in the case of Werner van Wyk and Others V Minister of Employment and Labour and Others (decision) held at the High Court of South Africa, Gauteng Local Division in Johannesburg, has thrust the issue of maternity and paternity rights to the fore.

This case is concerned with the constitutionality of the provisions of sections 25, 25A, 25B, 25C of the Basic Conditions of Employment Act 75 of 1997 (the BCEA) and sections 24, 26A, 27 and 29A of the Unemployment Insurance Fund Act 63 of 2001 (the UIF), which respectively deals with maternity, parental, adoption and commissioning of parental leave from employers on the birth of a child.

Amongst the Applicants, was a married couple, Mr and Mrs Van Vyk, who alleged that these sections unfairly discriminate against fathers and other non-birthing parents, by limiting the definition of maternity leave to birthing mothers. The law as it stands as provided by section 25 of the BCEA is that birthing mothers are entitled to at least four months of maternity leave and the father is only entitled to 10 days of parental leave from the date of birth of a child. This was challenged in this case as Mrs van Wyk wanted to return to work, and Mr van Wyk wished to stay at home to take care of the infant. Mr van Wyk was however denied paid leave day by his employer , and the UIF benefits for the days he was absent was not applicable, hence the matter ended in court.

Having considered evidence led, the court held that all parents should enjoy equal parental leave and for parliament to make substantive changes to the law to eliminate inequality. The abovementioned sections of the BCEA and the UIF were declared invalid as they unfairly discriminated against non-birthing parents as adoptive parents and surrogate parents. Its invalidity however was suspended for two years, as parliament within this period is obliged to rectify these sections of the law. As an interim measure the court ordered that birthing parents should share the four months of maternity leave alternatively, all parents are to enjoy the benefits of maternity leave as enjoyed by the birthing parent.

The decision gives effect to section 9(3) of the Constitution of the Republic of South Africa, 1996 (the Constitution), which provides that, “The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.”

Other measures aimed at curbing inequality and unfairness amongst genders include the promulgation of the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 and the establishment of the Commission for Gender Equality in terms of section 187 of the Constitution.

The Constitution prescribes that the Commission “must promote respect for gender equality and the protection, development and attainment of gender equality.’’

What makes this decision different to previous court decisions pertaining to gender equality is that:

– It recognises the right to equality between men and women as fundamental to the values of our Constitution. It seeks our legal system to put in place a structure which promotes equality fairness between men and women in terms of our existing laws; and

– Affords both parents of the child equal paternity rights as they are considered to have equal parental rights towards the child.

– It affords adoptive and surrogate parents equal parental rights as children born of parents who are married.

Issues to be considered by parliament before a final law is promulgated:

It is my view that it is unfair for only mothers to be given maternity leave and to bear the responsibility of looking after a child immediately after childbirth. This responsibility should be shared between both the parents.

Both parental figures are necessary for child growth and mental wellbeing, and it is in the best interest of the child to have a bonding process with both parents from the time of pregnancy, birth and after birth.

As much as this Decision requires parliament to recognise the need for both parents to be actively involved in the child’s life after birth, it also raises questions regarding the practicality around it.

For example, it may be reasonable for women to have four months of maternity leave as pregnancy may occur probably once a year. Men however may impregnate multiple women within a year. In this instance, will they be entitled to take four months paternity leave every time each women gives birth? To this end, it will be important to unpack or analyse what are the exceptions to this decision when it comes to men i.e., potential limitations on men’s paternity leave? Further, whether such limitation will not amount to discrimination, and will the interest of the unborn baby be affected?

Undoubtedly, the legislators will have to consider robust questions in giving effect to this decision.

Accordingly, it can be argued that a mother is justifiably entitled to four months of maternity leave as her body goes through a number of changes during pregnancy and birth, and she would need to completely heal before going back to work. Amongst other means of nurturing the baby, women are expected to breastfeed the child for at least the first three months after birth. The question then will arise as to why four months paternity leave for men will be justifiable.

Another factor to consider is what impact will this decision have on businesses or companies.

Employers will be expected to develop a policy in line with the constitution in respect of maternity leave. In my view businesses will tend to suffer financially during the period of four months maternity leave if provided by employers to all parents, as they will be required to pay the employee on leave and hire new employees to work in their stead. Productivity may be decreased if substitutes are not employed.

As much as the world is evolving, legislatures must change or make new laws that must go hand in hand with these changing times, however it is important to always look at the impact of a new law on a society and the practicality of its application.

*Vinolia Mashego is a Candidate Attorney at Gwina Attorneys Incorporated.

**The views expressed here are not necessarily those of IOL.