South African fathers have been looking with envy at their Scandinavian counterparts who have for many years been granted paid paternity leave. Why have fathers in South Africa been left behind? According to the Basic Conditions of Employment Act 75 of 1997 (BCEA), mothers are entitled to four consecutive months maternity leave, but fathers must be satisfied with only three days family responsibility leave when their child is born – not even to mention adoptive parents or those that have become parents through surrogacy.

This seems particularly unfair in a country where we have the Equality Clause, Section 9 in the Constitution, that stipulates that “everyone is equal before the law and has the right to equal protection and benefit of the law.”

On 28 November 2017, the National Assembly passed the first-ever private member’s bill to amend the BCEA. The amendment bill, further adopted by the National Council of Provinces on 21 August 2018, provides for parental leave, adoption leave and commissioning parental leave. The Bill has now been sent to President Cyril Ramphosa for his final approval.

The first category of parental leave relates to the birth of a child. It is noteworthy that the Bill does not specify paternity leave, but rather makes provision for parental leave (applying to both male and female employees). An employee who is a parent of a child will be entitled to 10 consecutive days’ parental leave. The employee will have to give at least one month’s written notice of the date of the expected date of birth or adoption, as well as when the leave is due to commence and when the employee will return.

The second category of adoption leave relates to the adoption of a child under the age of two. An adoptive parent is entitled to 10 consecutive weeks’ leave, commencing on the day that the adoption order is granted. If there are two adoptive parents, only one will be entitled to adoption leave (10 weeks) while the other will need to take parental leave (10 days). The notice requirements will be the same as for parental leave.

Finally, there is commissioning parental leave that relates to surrogacy. An employee, who is a commissioning parent in a surrogacy agreement will be entitled to 10 consecutive weeks’ leave. The leave can commence on the date of the birth of the child. The notice requirements will be the same as stated herein for parental and adoption leave.

Notably, in terms of the new amendment, family responsibility will no longer apply to childbirth as all parents will be covered under the above three categories of leave. Although parental leave has been widely touted in the media as a paid form of paternity leave, this is in fact an unpaid leave by the employer. This will be a similar employer non-payment / UIF benefit structure that applies with maternity leave, which is unpaid by the employer but which entitles the employee to claim a portion of salary from the UIF.