By Anrisa Subroyan
Last week, the Gauteng High Court ruled that the South African Basic Conditions of Employment Act (BCEA) unfairly discriminates between mothers and fathers. For a long time, the Act gave mothers four months of maternity leave but fathers a mere ten days. The court declared this unconstitutional, saying that both parents should be free to share the four months of leave between them, however they please.
This decision has been celebrated by many for its part in gender equality, but some hard questions need to be asked. Does this equality honour the biological role each parent plays in bringing new life into the world? Especially in a country riddled with patriarchy and social injustices.
The backdrop to the revised Act
The original BCEA on maternity leave was established in 1997 allowing four consecutive months of leave for pregnant employees, whilst fathers were not granted any leave, and had to rely on family responsibility leave – being three days, which was seen as unfair. There was then a major shift in labour laws in 2018, that allowed for ten days leave for the father or non birthing parent.
This amendment was effective from January 2020. Now the ruling is that both parents can choose how the four months of maternity leave will be split between them, whether the father gets more or less days are entirely dependent on the couple.
There is no doubt that this new ruling is progressive, seeing as the old law assumed traditional family structures that don’t exactly fit South Africa any longer, that being one where a man works and a woman stays at home or has a lower income job than her husband. The reality of the current society is that many women are now the breadwinners of families, and men want to be more involved in their children’s lives, especially in their early childhood development stages. This does spark positivity, but the question remains: Does this new ruling do justice to the birthing mother?
What science tells us
Pregnancy and childbirth are not just medical events, but it is rather an experience that leaves mothers physically and emotionally transformed. The World Health Organisation (WHO) classifies the postnatal period as the first six weeks (42 days) as a critical time for mothers’ and baby’s health; however, the full physical and psychological recovery can extend beyond that period. WHO notes that women require at least 12 weeks (3 months) of rest before returning to normal activity or returning to stressful environments. This then aligns with the four months leave that has been given to females in South Africa as if it is not only fair, but it is necessary.
In South Africa, where income is uneven, such as instances where the woman earns more or has a more ‘important’ job that could work on commission, she may be compelled to return to work earlier so that her partner can take the leave instead.
This choice, which will be made freely can come at the cost of full healing, breastfeeding, rest and the development of a bond with a child. It’s easy to celebrate this equality on paper but harder when looked at practically.
Imagine a mother waking up at 4.00am, still physically and psychologically recovering from childbirth to a crying baby that hardly knows her and still getting herself ready for a hard day of work. What if a father decides he wants three months of leave, and the mother only gets one month just because he is entitled to it? What happens when the parents can’t decide who gets more leave, since there is nothing set in stone about it? This in essence seems unethical and the scary part is that it will become a reality for many households with this new amendment.
What we need to consider
On the other hand, it’s not to say that fathers shouldn’t be more involved, especially in a country that carries the pain of absent fathers, having children grow up without the guidance and discipline of a father has led to many pains. In this instance, giving a father’s chance to be more involved from the get-go can be transformative. He can learn to soothe his child, change nappies and create a more lasting bond with his child. But it all comes at the expense of the mother.
A mother’s role in the first months after birth is irreplaceable, not because she is more capable but because she is the one who uses her body and spirit in the act of bringing life into the world. She deserves to receive all the time she medically needs to recover, and it should not be determined by her role in financial contribution to the family.
This new law in essence needs to be more refined, or perhaps specific, it should at least ensure that the recommended portion of leave is reserved for a mother (at least six weeks) before the rest of the leave can be shared. The law, although progressive seems to forget the role of a mother in the crucial developmental stages and hence needs to be revised so that mothers get the time off that they need, whilst allowing the father to be as supportive as he can be.
