A mere 20 years ago societal norms dictated that women should cater to their families’ needs, while husbands acted as breadwinners who participated in the economy. Many assumed that women were better primary caretakers than men, who had greater economic responsibilities, and in fact preferred these responsibilities above those at home. It was therefore not unusual that lawmakers echoed these assumptions in the labour legislation of the day which was discriminatory at its core and intended to keep men in the labour force and women out
With the changing dynamics in relationships, an economy that makes it nearly impossible to survive on a single income and greater understanding of early child development, things look different. Unfortunately, while society’s perceptions have evolved, our labour laws are not keeping up with modern trends of women entering the labour market and men becoming more involved in the household.
The last few years have brought various discriminatory labour provisions in focus, most recently the bias of maternity leave. Advocate Jackie Nagtegaal from LIPCO Law for All, an innovative legal insurance and service provider, explains that in terms of the Basic Conditions of Employment Act, female employees are at present entitled to four months maternity leave, while their male counterparts are only entitled to a dismal three days paid family responsibility leave. “Unfortunately South African labour law don’t recognise the importance or prerogative of men to spend time with, and take care of, their newborn children. Many are quick to blame fathers for not being involved enough, but in reality, three days are hardly sufficient to foster a bond. Added to that, the three days can’t be carried over annually, and also cater for instances of death or sickness in the family.”
Recent studies indicate that South African households are increasingly sharing responsibilities equally between partners and many believe that these responsibilities should include care for newborn babies. In countries that provide sufficient paternity leave to fathers, studies have found that women not only recover faster from the physical stress of child birth, but also return to their employment more revitalised. The fathers and children benefit too, as paternity leave allows for stronger bonds to form from the outset, ensuring better relationships and development in the long term.
In 2014, Financial Manager, Henri Terblanche, 38, from Brackenfell, took issue with the absence of adequate paternity leave provisions in South African employment laws and he set out to challenge the status quo. Terblanche’s wife gave birth to twins, Dante and Juandré, three months prematurely. The newborns had to spend 139 days and 79 days respectively in ICU and required ongoing medical care in the months after their release from hospital. The three days of family responsibility leave left the Terblanche’s family in a disadvantaged position and prompted him to petition the National Council of Provinces to update laws. He also urged MP’s to draft new legislation for consideration by the National Assembly.
Nagtegaal explains that the call for increased paternity leave is a step in the right direction as South Africa is falling behind many European and some African countries. “Sweden for example provides 480 days leave to parents, with 60 days for both parents directly after the birth. The remainder may be pooled and shared between the parents. On our own continent, in Kenya, men are entitled to 14 days Paternity Leave with full pay, while conservative Cameroon allows 10 days a year.”
While 1996 also painted a different picture of stereotypes surrounding South African homosexuals, the implementation of The Bill of Rights meant the prohibition of discrimination on the basis of sexual orientation. The implementation of new laws that gave recognition to gay rights such as the Civil Union Act that allows same sex couples to wed, and the new Children’s Act which regulates surrogacy, signaled a change in the perceptions surrounding homosexuality by the community. Unfortunately employment laws have failed to keep up with the changing times.
When there are two dads
In 2013, Johannesburg based Chartered Accountant, Simon (35) and his Architect life partner, Ben (43), made the leap to fulfill a lifelong dream of having a child. The process was anything but easy or economical. Two failed pregnancies and steep costs of medical expenses took its toll on their relationship. Both men agree that it was a challenging time. “Surrogacy is a modern medical marvel that has allowed us to become the biological parents of beautiful baby girl, a dream that would otherwise not have been possible but all was not without blood, sweat and tears.”
Lack of adequate leave benefits didn’t affect the couple much, as Ben is the owner of a successful architecture firm and Simon’s employer was supportive. “My employer basically just sat me down, and said that they support my decision wholeheartedly and that they regard me as a high calibre employee who deserves to be happy in my family life too. Many of our friends who have gone the surrogacy route have not been so lucky, and their employers refused leave based on company policy.”
On Thursday 26 March 2015, the Durban Labour Court made it impossible for companies to hide behind company policy to discriminate against homosexual couples. In a ground breaking matter the State Information Technology Agency denied a Senior Specialist in Business Architecture in their employ, 4 months paid “maternity” leave following the birth of their child by a surrogate in 2011. The employee whose identity has been kept out of the media, applied for maternity leave long before the birth of the child, and was ultimately granted 2 months paid adoption leave, and 2 months unpaid leave. The Agency argued that the Basic Conditions of Employment Act only provided maternity leave benefits to female employees and failed to understand how its policies could be discriminatory as employment laws failed to specifically deal with matters of surrogate parents.
Judge J Gush disagreed with this line of argument and was of the opinion that the Agency’s policies were in fact discriminatory in that it failed to recognise the status of the parties to a civil union, the rights of the commissioning parents in a surrogacy agreement. Maternity leave benefits are not solely connected to the welfare and health of the mother, but also to the best interest of the child. Gush indicated that amendments should be made to existing employment laws and found that the male employees who have children through surrogacy, are entitled to “paternity” leave for the same period as to which the natural mother would have been entitled.
Nagtegaal believes that the outcome of the case strengthens the argument of heterosexual fathers regarding their entitlement to leave benefits where they are the primary caregivers or where the mother died during birth and fathers are solely tasked with the upbringing of the child. She is also of the opinion that companies cannot solely focus on employment laws, and need to take Constitutional rights and principles into account when formulating policy. “It is time that legislation is changed to correspond to the social practices and norms and accept that parenting is not an act reserved only for women. The decision of which parent should care for a newborn, should be placed in the hands of the parents, in the best interest of the child.”
As it stands now, the law decides and does not take into consideration the practicalities of the family’s setup and what would be in the best interest of the child or family. In instances where mothers contribute more financially to the household, it might be prudent to allow the husband to take care of the newborn during the allotted 4 months. “The fact is, legislation should allow parties to make a choice in the matter and not follow an out of date patriarchal system that discriminates on gender.”
Disclaimer: The views of columnists published on Parent24 are their own and therefore do not necessarily represent the views of Parent24.
Have you ever come up against gender disparity towards parents?