Parliament will soon have to start deliberating on the glaring absence in South Africa’s labour laws of paternity leave and substantive equality for gay couples having children.
A private member’s bill to legally establish “parental” leave and give adoptive or surrogate-using parents better entitlements was gazetted this week.
It still does not propose full equality between mothers who give birth and other categories of parents, but would significantly expand the recognition of parenthood at the workplace.
Ironically, the bill comes from the African Christian Democratic Party (ACDP), a party that is opposed to gay couples adopting babies in the first place.
In an explanatory memorandum attached to the draft Labour Laws Amendment Bill, the ACDP explains that it is primarily trying to get paternity leave legislated as part of its “policy on family values”, which stresses the importance of fathers in families.
“The ACDP does not support, nor did it support, amendments to the Children’s Act ... which allowed same-sex couples to adopt children.
“It is the view of the ACDP that for the bill to accomplish its goals, it must be applicable in the current legal situation.”
The primary aim of the bill is to introduce an ungendered new basic condition of employment called parental leave.
This would, in practice, be paternity leave in a heterosexual relationship, but apply equally to one of the partners in a same-sex civil union.
The bill still proposes a relatively insignificant 10 days of parental leave, but proposes that this leave be subsidised by the Unemployment Insurance Fund (UIF) in the same way that birth mothers’ four months of maternity leave is financed.
Cheryllyn Dudley, the ACDP’s parliamentary whip, explains that the 10-day figure is a compromise meant to forestall opposition from employer groups that might oppose the bill.
It was agreed on with labour federation Cosatu in consultations, said Dudley.
At present, fathers of newborn children are forced to rely on their legal right to three days of “family responsibility leave” in lieu of any specific provision in the Basic Conditions of Employment Act.
This is the same leave generally used to attend funerals or other family emergencies.
Apart from the 10 days of parental leave, the bill also seeks to create adoption and surrogate leave, which would again apply equally to heterosexual or gay couples.
While the UIF already pays adoption benefits, the Basic Conditions of Employment Act does not yet force employers to grant this kind of leave.
The proposal is for two and a half months of leave, which is again far short of the four months for normal maternity leave.
The couple can decide which partner takes the 10 days of parental leave and which one takes the two and a half months.
Dudley reasons that the shorter period is justified because physical recovery time makes up part of maternity leave and that the law, for instance, allows for one and a half months of leave to recover from a miscarriage. Two and a half months is then the remainder for actual childrearing.
An amendment to the Basic Conditions of Employment Act to specifically address the continued discrimination against gay couples is long overdue.
Earlier this year, a case before the labour court demonstrated the inequity of the current arrangements.
A homosexual employee of the State Information and Technology Agency (Sita) and his husband had commissioned a surrogate pregnancy and applied for maternity leave when the baby was born.
Sita refused by arguing that maternity leave only applied to women, and instead offered them the option of unpaid leave. The reasoning for how this squares with the Constitution was that maternity leave was, at least in part, related to the physiological trauma of childbirth, not only to allowing for care and a bonding period with the baby. This is the position still taken in the ACDP’s bill.
The court disagreed and put caring for the child front and centre as a rationale for maternity leave.
That ruling only applied to that specific case, but the judge noted that the Basic Conditions of Employment Act would need to be amended to excise the inherent discrimination of only giving one kind of parent the legal right to take time off to look after a newborn.
As a private member’s bill, the ACDP’s proposal will have to be referred to the parliamentary committee on labour by the Speaker and, if there is agreement, be debated before it is sent to the department of labour and taken through the normal legislative process.
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