Many countries now separate childbirth-related medical recovery from general parental leave and provide equal entitlements to parents regardless of gender or family structure.
By Candice Mncwabe, Western Cape committee member of the South African Reward Association (SARA), chartered reward specialist and senior manager at Deloitte, and John Botha, joint-CEO of Business Solutions
South Africa is now entering a similar transition, following a landmark ruling by the Constitutional Court of South Africa on 17 December 2024, which fundamentally changes how parental leave must be applied.
Internationally, gender-neutral parental leave is standard across a lot of jurisdictions and the trend is clear: countries are protecting birthing parents’ recovery while offering gender-neutral shared parental leave.
In Sweden, parents each receive a non-transferable 90 days of individual leave within a total of 480 days. Iceland grants six months per parent with six weeks transferable, while Finland allows 160 weekdays per parent within 320 weekdays total.
Norway, Spain, Portugal, Canada, New Zealand, the United Kingdom, and Germany all ensure both parents participate in early caregiving. Compared with these systems, South Africa’s previous framework was highly unequal, favouring mothers while fathers, adoptive parents, and commissioning parents received minimal or capped entitlements.
Historically, South Africa’s labour framework granted four months of maternity leave to biological mothers, 10 days to fathers or partners, and ten weeks to the primary adoptive or commissioning parents (10-days for the secondary adoptive/commissioning parent).
The Court found this structure entrenched outdated gender roles and, in Van Wyk & Others v Minister of Employment and Labour (2024), ruled it unconstitutional. The declaration of invalidity is suspended for three years to allow Parliament to amend legislation, but an interim interpretation applies immediately from 3 October 2025 and is binding on employers.
The big changes under this ruling are clear: all parents now share a combined parental leave pool of four months and 10 days, medical recovery for birthing mothers is protected at six weeks post-partum, and adoptive and commissioning parents receive equal entitlements.
What the new parental leave entitlement means
Parents now share a combined parental leave entitlement of four months and ten days. They may decide how to divide this period, and if they cannot agree, it must be split as evenly as possible. If one parent chooses not to take leave, the other may take the full period.
Medical recovery protection remains: mothers may begin maternity leave four weeks before birth and may not work six weeks after birth, recognising childbirth as a medical event distinct from caregiving.
The big change is that leave is no longer assigned by gender or type of parent, giving fathers, adoptive parents, and commissioning parents the same opportunity to participate in early childcare.
How each type of parental leave now works in practice
South Africa no longer treats maternity, paternity, adoption and surrogacy leave as completely separate categories. Instead, there is one shared parental leave pool that parents must divide.
For biological mothers, the full four months is no longer automatically reserved. Childbirth is still recognised as a medical event, meaning mothers may begin maternity leave four weeks before and may not work six weeks after birth.
This period functions as protected medical recovery time, while the remainder forms part of the shared caregiving leave.
Fathers or partners, previously limited to ten days, may now take a significant portion of the shared pool if both parents agree. Adoptive parents now share the same leave pool once legal parenthood is confirmed, and commissioning parents in surrogacy arrangements are treated equally, removing distinctions between primary and secondary parents.
Where both parents are employed, they jointly share the four months and ten days. If they cannot agree, the leave is split as evenly as possible. If one parent declines, the other may take the full entitlement.
Employers rely on the information provided by their own employee and are not responsible for enforcing another employer’s decisions, provided they act in good faith. In practice, the system recognises two equal caregivers, with the only distinction being the medical recovery period for birthing mothers.
What employers must do during the transition
Employers must remove gender-based distinctions in policies, introduce shared parental leave provisions, and update payroll and HR systems to track allocations.
They may request limited information about the other parent’s leave, but employees are responsible for disclosure. Companies are not expected to police another employer and are protected if they act in good faith.
Questions arise where parents work for different companies, or where leave exceeds the statutory limit. Employers may ask for reasonable confirmation, but cannot demand excessive personal details.
If both parents independently take more leave than allowed, they fall outside the statutory scheme, though organisations may grant additional contractual leave at their own cost.
UIF payments and the legal grey area
The Unemployment Insurance Fund must now interpret benefits in line with the Court ruling, even though the legislation has not yet been amended.
Mothers still qualify for approximately four months of maternity benefits based on the existing sliding scale, while adoption and parental categories are now interpreted within the shared leave pool.
Further guidance from UIF is expected as administrative processes adjust.
Balancing equality and recovery
The reform promotes gender equality and shared caregiving, but without clearly defined recovery leave, mothers could feel pressure to return to work prematurely. Medical recovery following childbirth is unique and requires protection to safeguard health and economic stability. Policymakers will likely address this balance when formal amendments are enacted.
Preparing for the future workplace
During the interim period, employers should align policies with the ruling, communicate clearly with staff and leadership, and monitor legislative developments. Where organisations cannot fund extended paid leave permanently, consultation processes should be used to review benefits rather than implementing changes unilaterally. Proper engagement maintains trust and legal compliance while allowing businesses to remain competitive. Employers who have historically paid for all or part of parental leave, have a few options to consider a) extend the benefit to all parental leave types; average the spend over the past years and set that amount as a threshold after which UIF applies; or employ new employees on the minimum BCEA and UIF terms. Legal consultation is recommended.
South Africa’s parental leave reform is one of the most significant shifts in family-related labour law in decades. Although implementation will evolve over the next three years, the direction is clear: caregiving responsibilities can no longer be assigned by gender. A well-designed parental leave framework supports employee wellbeing, strengthens workforce participation, and aligns the country with international labour standards, while giving families greater freedom to decide how they care for their children.