ConCourt Unanimously Strikes Down SA's Parental Leave Laws, Grants Fathers Equal Rights in Landmark Ruling

JOHANNESBURG – In a historic victory for gender equality and modern families, the Constitutional Court of South Africa has unanimously declared the country’s parental leave regime unconstitutional, ruling that it unfairly discriminates against birth fathers, adoptive parents, and commissioning parents in surrogate agreements.

The landmark judgment, handed down on 3 October 2025 in the case of Van Wyk and Others v Minister of Employment and Labour, effectively ends a system that granted birth mothers four months of leave while limiting fathers to just 10 days.

The Core of the Discrimination

The court found that sections 25, 25A, 25B, and 25C of the Basic Conditions of Employment Act (BCEA) violated the constitutional rights to equality and human dignity.

In her judgment, Justice Tshigi (with a full bench concurring) stated that the previous laws "perpetuat[ed] the assumption that women are and should be the primary caregivers of children," while marginalizing fathers and "treating adoptive and commissioning parents as a lesser class of parents."

The court highlighted the case of Werner van Wyk, who was forced to take unpaid leave to care for his newborn after his wife, a business owner, needed to return to work. This real-world example underscored the law's failure to accommodate diverse family needs.

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The Interim Solution: What Changes NOW

While Parliament has been given 36 months to craft new, permanent legislation, the Court immediately implemented an interim "reading-in" order to remedy the injustice. The key changes are:

• A Shared Pool of Leave: Employed parents are now collectively entitled to four months and ten days of parental leave.
• Flexible Sharing: Parents can decide how to split this leave—they can take it consecutively, concurrently, or in any combination they agree upon.
• Dispute Resolution: If parents cannot agree, the leave will be split as evenly as possible, giving each parent roughly half of the total time.
• Protection for Birth Mothers: The judgment safeguards the birth mother's right to take leave for medical reasons before and after birth, including a mandatory six-week period post-birth unless a medical practitioner certifies she is fit to work earlier.

Inclusion for Adoptive and Surrogacy Families

The court also struck down the law that limited paid adoption leave to parents of children under the age of two, declaring it an unfair form of age discrimination. The same shared leave principles now apply to adoptive parents and commissioning parents in surrogacy arrangements, regardless of the child's age.

A Philosophical Shift

The judgment marks a profound philosophical shift in South African law. The Court reasoned that assigning caregiving roles based on gender "intrudes upon their private space unnecessarily and impacts their human dignity."

"It is unfair for the mother to be deemed the primary caregiver when the burden of child care should be equally shared with the father," the judgment stated, affirming that parenting is a shared responsibility, not a state-assigned role.

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The Road Ahead

The Minister of Employment and Labour must now report back to the Court within 30 months on Parliament's progress in passing permanent remedial legislation. This landmark ruling redefines parenthood in South Africa, moving from a gendered model to one based on equality, choice, and the best interests of every child and parent.