PARENTAL EQUALITY – RIGHTS WITHOUT BIAS

Amalta Seevnarayan- Dhanee | Legal Advisor

Big News for Parents in South Africa!

The Constitutional Court has handed down a groundbreaking judgment that changes how parental leave works in South Africa. This is great news for all kinds of families — whether you're a mom, dad, adoptive parent, or using surrogacy. 

What Was the Problem? 

Before this ruling: 

  • Only birth mothers could take 4 months of maternity leave. 

  • Fathers were only allowed 10 days of paternity leave. 

  • Adoptive parents could only take leave if the child was under 2 years old. 

This setup assumed that moms are always the main caregivers and dads just help out - which isn’t fair or true for many families.

What Did the Court Decide?

In the case of Van Wyk and Others v Minister of Employment and Labour; Commission for Gender Equality and Another v Minister of Employment and Labour and Others [2025] ZACC 20, the Constitutional Court has ruled that the parental leave provisions in the Basic Conditions of employments Act (BCEA) and the Unemployment Insurance Act (UIF) are unconstitutional for unfairly discriminating between different categories of parents.

What has now changed?

Until Parliament updates the law (they have 3 years to do so), the Court has ordered new rules that apply immediately: 

  • All parents — whether biological, adoptive, or through surrogacy — can share 4 months and 10 days of parental leave.  

  • If both parents work, they can decide how to split the leave. If they can’t agree, it will be split as evenly as possible.  

  • Adoptive parents can now take leave no matter how old the child is.  

  • Birth mothers still get time off for medical recovery — up to 4 weeks before birth and 6 weeks after — but this time comes out of the overall shared leave. 

  • If only one parent is employed, that parent gets the full leave.     

  • Parents must notify their employer in writing at least 4 weeks before taking leave. 


This landmark decision is a big win for gender equality and modern families in that it recognizes: 

  1. Mothers and fathers should have equal opportunities to care for their children. 

  1. Families come in many forms, and all deserve the same rights. 

  1. Bonding time in the early months is important for every child, regardless of how they joined the family.  

 
A new era for families

South Africa has taken a major step toward fair and inclusive parental leave. Whether you’re a mom, dad, adoptive parent, or commissioning parent through surrogacy, you now have the right to share real, meaningful time with your child. This progressive move recognizes the diverse ways families are formed and affirms that every parent deserves the opportunity to bond, nurture, and support their child from the very beginning. It’s a win for equality, a win for families, and a powerful reminder that love and care know no boundaries.