The Johannesburg High Court has ruled that the current law regulating maternity leave, adoption leave and surrogacy leave in South Africa is unconstitutional and invalid, on the basis that it discriminates against different types of parents and violates their dignity and the interests of their children.
The case was brought by four applicants, who challenged the provisions of the Basic Conditions of Employment Act (BCEA) and the Unemployment Insurance Fund Act (UIFA). The applicants included a father who wanted to take leave after the birth of his child, a mother who wanted to share leave with her partner, a surrogate mother who wanted to take leave after handing over the child to the commissioning parents, and an adoptive parent who wanted to take leave after adopting a child.
The applicants argued that the current law unfairly favours mothers over fathers and excludes parents who have children through surrogacy or adoption. They also claimed that the law infringes on the rights of parents and children to equality, dignity, family life, and the best interests of the child.
The Court agreed with the applicants and found that the law violates sections 9 and 10 of the Constitution, which guarantee equality and human dignity. The Court said that the law creates a hierarchy of parents based on their biological or legal relationship with their child and fails to recognise the diverse forms of family in South Africa. The Court also said that the law undermines the role of fathers and other caregivers in raising their children and deprives children of the opportunity to bond with both parents.
The Court declared sections 25, 25A, 25B and 25C of the BCEA and the corresponding sections of the UIFA unconstitutional and invalid. However, the Court suspended the declaration for two years, to allow Parliament to enact remedial legislation that would comply with the Constitution. In the meantime, the Court ordered that the law be amended to provide for a new interim regime of parental leave.
According to the interim regime, an employee who is a single parent is entitled to at least four consecutive months of parental leave, and employees who are a pair of parents are collectively entitled to the same amount of leave, which they can take following their election. The parents can choose to take the whole period by one parent or take turns taking the leave. Both employers must be notified before 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 parent must be specified. This change levels the playing field for both mothers and fathers.
Furthermore, the judgment extends parental leave to surrogacy parents and adoptive parents while affording them financial support through full access to UIF benefits. Surrogate mothers and adoptive parents are entitled to four months of parental leave, aligning with the rights of biological parents. All parents (except those adopting children older than two years) are eligible for UIF payments during their parental leave.
The Court said that this regime would ensure that all parents are treated equally and fairly and that their children’s best interests are protected.
The judgment has been welcomed by various civil society groups and legal experts, who hailed it as a landmark victory for parental rights and gender equality. These crucial changes ultimately benefit the welfare of children and the dignity of parents. The decision is set to have far-reaching implications for employers and employees alike, promoting a more inclusive and equitable approach to parenting in the workplace.
