Landmark Johannesburg Ruling Calls for Equal Parental Leave: A Lesson for India?

The decision in Johannesburg brings into focus the parental leave policies in India, which remain deeply unequal. The Maternity Benefit (Amendment) Act, 2017 grants biological mothers up to 26 weeks of paid leave. However, adoptive and commissioning mothers are only entitled to 12 weeks, highlighting a similar disparity to that which the South African court has now ruled against.

- PARTH GAUTAM & PRAGATI SOLANKI

Johannesburg, March 17, 2025—In a landmark decision, the Johannesburg High Court has ruled in favour of equal parental leave for all parents, regardless of gender or how they become parents. The case, Van Wyk and Others v. Department of Labour, was brought by a group of parents who challenged the disparity in parental leave policies, arguing that non-biological parents were unfairly granted fewer benefits than biological mothers.

A Case of Discrimination in Parental Leave Under South African law, biological mothers were entitled to longer maternity leave compared to adoptive and surrogate parents. The petitioners, which included fathers, adoptive mothers, and commissioning mothers (who have children via surrogacy), contended that this differentiation was unreasonable. They argued that an infant requires equal care, attention, and supervision in its early stages of life, regardless of whether the parents are biological or not. Furthermore, they highlighted that physiological recovery should not be the sole factor determining leave policies, as caregiving responsibilities remain the same.

Another crucial point in the case revolved around the role of fathers. The existing framework assumed that fathers played a secondary or "ancillary" role in parenting, thus excluding them from substantial parental leave benefits. The court found this discriminatory, stating that such policies imposed an unfair burden on mothers while failing to recognize the equal responsibility of fathers in child-rearing.