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Labour law redefines parenthood

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Any employee who has become a parent and is not covered by maternity leave will be entitled to 10 consecutive days’ parental leave, according to the Labour Laws Amendment Bill, which was recently signed into law.

Gender justice activists are celebrating the progressive, gender-neutral nature of this law and the long-due recognition of the role that fathers need to play in caregiving.

A 2018 Sonke Gender Justice report argued that there are emotional and physical benefits for the child and the mother if fathers are included in childcare, especially in the first 1 000 days of a child’s life. The new law is therefore a step towards involving fathers for at least 10 of those 1 000 days.

READ MORE: Working dads can now take paternity leave for 10 days

But if we are serious about a progressive parental leave policy, ­celebrating just a few days of leave, when the father can support the mother immediately after childbirth, will be naive.

This leave for the father is paternity leave, and needs to be distinguished from parental leave — leave available to either parent, usually during a period after the expiry of maternity leave. This distinction between parenting and paternity leave is not just a ­matter of semantics; it has implications for what we hope to achieve with these leave policies.

In 2014, an International Labour Organisation’s (ILO) report on such leave policies around the world revealed that, of the 167 countries analysed, 79 had made legal provision for paternity leave. In Africa, 29 countries offered some form of paternity leave, but almost all (except Kenya and Burundi) allowed, at most, 10 days. Parental leave is rarer and, in many cases, unpaid.

Among the African countries analysed, only five provided for parental leave — Burkina Faso, Chad, Egypt, Guinea and Morocco, and all on an unpaid basis.

An emphasis on parenting, rather than maternity or paternity, is an attempt to promote gender equality in the labour market as well as in ­caregiving. It is a step towards ­recognising that both parents need to share caregiving tasks, and the role of one (the father) cannot be merely a supportive one.

But across the globe it has been observed that, even in countries where parental leave may officially be taken by either women or men, in practice it is mostly women who take it. To encourage men to use their parental leave, countries such as Sweden have introduced clauses of nontransferability, so that the fathers who do not use their “quota” lose it, according to an ILO report.

Parental leave and any additional clauses such as nontransferability of leave can only start the conversation. Supportive work spaces, a community that values fathers’ involvement in childcare responsibilities, as well as a more sustained and long-term acceptance of flexible working arrangements and state-supported provision of quality childcare services are as essential.

The significance of the amendment Bill, however, goes beyond the attempt to bring biological fathers into care work and needs to be understood and discussed as such. The Bill does not restrict its understanding of parents to biological mothers and fathers. It not only enables an employee, who is a parent of a child, to 10 consecutive days of parental leave; it enables adoptive parents and commissioning parents (in a surrogate motherhood agreement) of a child of under the age of two to take at least 10 consecutive days of parental leave, or adoption leave of at least 10 consecutive weeks.

This expanded definition of parenting deserves some attention because it attempts to redefine parenting beyond heteronormative biological parenthood. In some countries, for instance, Senegal and the United Kingdom, “maternity” benefits and leave provided to birth mothers are also available to adoptive parents. In the case of adoption, the leave is not related to recovery from childbirth or to breastfeeding needs and hence can be “naturally” gender- neutral. Yet, in most countries where ­adoption-leave provisions are available, only women can take such leave, presumably because only women are considered capable of taking care of a baby, irrespective of whether they give birth to the baby or adopt it.

The amended Bill would be a welcome first step in changing these assumptions of primary ­caregiving as well as in the very ­definition of a parent, entitling same-sex parents and adoptive fathers to such benefits.

The icing on the cake is the inclusion of ­commissioning parents into the pool of parents who are entitled to such a leave.

South Africa’s law regarding surrogacy, included in the Children’s Act 2010, is one of the most detailed surrogacy laws on the continent and ensures that all surrogacy agreements must be brought before the high court.

It recognises the commissioning parents as the legal parents of the child and has several clauses that are in line with best serving the interests of the child. The child is handed over to the legal (commissioning) parents immediately after birth. Until now, the commissioning parents were not entitled to most of the paid leave benefits provided for biological parents.

READ MORE: Better maternity leave laws are needed to protect African mothers

This matter was raised in a 2015 labour court case when a commissioning father (in a same-sex relationship) was refused paid “maternity” leave on the basis that he was not the biological mother of his child. Maternity leave, the employer argued, is given to birth mothers for postpartum recovery. Interestingly, the judgment went in favour of the commissioning father and denial of paid leave was declared unfair discrimination on the grounds of gender, sex, family responsibility and sexual orientation. It was argued that the right to maternity leave, as created in the Basic Conditions of Employment Act, is an entitlement not linked solely to the welfare and health of the birth mother but must take into account the best interests of the child, namely each child’s right to family or parental care.

The amendment Bill, now a law, has successfully linked employment to parenting and child rights.

Let us hope this opens up many more conversations about the role of the state, and not just private employers and families, in ensuring the best interests of future generations.

Amrita Pande, author of Wombs in Labor: Transnational Commercial Surrogacy in India, is associate professor in the sociology department at University of Cape Town

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Amrita Pande
Amrita Pande is a lecturer in the Sociology department at University of Cape Town. Her research primarily focuses on globalisation, gendered bodies and gendered work spaces, new reproductive technologies and new forms of social movements

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