Johannesburg, March 17, 2025 — In a landmark decision, the Johannesburg High Court has ruled in favour of equal parental leave for all parents, regardless of gender or how they become parents. The case, Van Wyk and Others v. Department of Labour, was brought by a group of parents who challenged the disparity in parental leave policies, arguing that non-biological parents were unfairly granted fewer benefits than biological mothers.
A Case of Discrimination in Parental Leave
Under South African law, biological mothers were entitled to longer maternity leave compared to adoptive and surrogate parents. The petitioners, which included fathers, adoptive mothers, and commissioning mothers (who have children via surrogacy), contended that this differentiation was unreasonable. They argued that an infant requires equal care, attention, and supervision in its early stages of life, regardless of whether the parents are biological or not. Furthermore, they highlighted that physiological recovery should not be the sole factor determining leave policies, as caregiving responsibilities remain the same.
Another crucial point in the case revolved around the role of fathers. The existing framework assumed that fathers played a secondary or “ancillary” role in parenting, thus excluding them from substantial parental leave benefits. The court found this discriminatory, stating that such policies imposed an unfair burden on mothers while failing to recognize the equal responsibility of fathers in child-rearing.
Court’s Progressive Judgment
In a ruling that could set a precedent for parental leave policies worldwide, the Johannesburg High Court held that leave entitlements should not be based purely on biology but rather on the best interests of the child and an equitable division of responsibilities between parents. The court suggested that parents should have the option to split their leave between them, allowing greater flexibility for families to decide how to care for their child.
This judgment was hailed as a progressive step toward gender equality, recognizing that fathers are not merely “supporting parents” but active and essential caregivers. The ruling underscores that parental leave policies must adapt to modern family structures and ensure that both parents have the opportunity to bond with and care for their children.
Are We Reinforcing Gender Stereotypes?
The decision in Johannesburg brings into focus the parental leave policies in India, which remain deeply unequal. The Maternity Benefit (Amendment) Act, 2017 grants biological mothers up to 26 weeks of paid leave. However, adoptive and commissioning mothers are only entitled to 12 weeks, highlighting a similar disparity to that which the South African court has now ruled against.
More concerning is the lack of substantial paternity leave provisions. Fathers employed in the private sector often receive no paid parental leave, while those in government service are granted only 15 days of paternity leave. This stark imbalance reinforces the outdated notion that childcare is primarily a mother’s responsibility, reducing the father’s role to a secondary one.
The absence of comprehensive paternity leave options creates challenges for families, particularly in dual-income households. By not providing fathers with equal parental leave, Indian policies are inadvertently restricting their ability to actively participate in childcare. The burden falls disproportionately on mothers, affecting their careers and overall well-being.
Need for Reform: Rethinking Parental Leave
The Johannesburg ruling challenges societies worldwide to rethink their approach to parental leave. In India, a revision of existing laws is crucial to promote true gender equality in parenting. Equal parental leave would ensure that fathers have the opportunity to participate in the early stages of child-rearing, thereby challenging and dismantling rigid gender roles.
Providing equitable leave also benefits children by allowing both parents to share the responsibilities of care and nurture. Studies have shown that increased father involvement in childcare leads to better emotional and cognitive development in children. Moreover, fair parental leave policies help in fostering a balanced work-life environment for both parents.
A Step Towards Gender-Neutral Parenting
As India moves forward in its journey towards gender equality, addressing the gaps in parental leave policies must become a priority. By recognizing fathers as equal caregivers, we take an essential step towards dismantling the outdated structures that have historically placed childcare responsibilities solely on mothers.
The Johannesburg court’s decision is a reminder that equality in parenting is not just a progressive ideal, it is a necessity. India must take cues from this ruling and implement policies that promote shared parental responsibilities, ensuring a fairer and more inclusive society for future generations.
Parth Gautam is an Advocate & Pragati Solanki is Assistant professor, HLM Group of Institutions.
