ConCourt advances the rights of fathers and adoptive parents

Until now, South African law has discriminated against dads as well as couples who adopt children or use surrogacy to conceive in terms of who could claim maternity leave and for how long. By Dianne Hawker

- By Dianne Hawker

Parliament has been given three years to update provisions for parental leave to allow fathers and adoptive parents equal rights to spend time with their children. This comes after the Constitutional Court ruled that sections of the Basic Conditions of Employment Act (BCEA) and the Unemployment Insurance Fund (UIF) Act are unconstitutional.

Labour unions and lawyers have welcomed the decision as an important recognition of equal rights for parents.

The family who initiated the case, Ika and Werner van Wyk, told Daily Maverick that although they had initially received criticism for bringing the case, they believe many had come to understand the ruling.

"Interestingly enough, the negative comments mostly came from women who probably had their opinion tainted by their own personal experiences of getting pregnant by a man who isn't or doesn't want to be involved, and being scared of men now getting more rights than women and progressing the male agenda as opposed to the female agenda," said Ika.

"But I think since we launched the case and received the ConCourt ruling, people have started to educate themselves a little bit better to see what this is truly about."

The Van Wyks initiated the case in 2022. After their son James was born, Werner tried to apply for four months of paternal leave but was denied based on the BCEA differentiating between the kinds of parental leave that mothers and fathers can take.

The couple had hoped that Werner could be James’ primary caregiver, as Ika was running a jewellery business from their home in Polokwane and planned to continue working during that time.

The act also had a different provision for adoptive parents and those conceiving through surrogacy. Fathers were only granted 10 days’ parental leave, and only one of the adoptive parents could take up to 10 weeks’ parental leave.