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South Africa is in the middle of a major redesign of family-related leave. The immediate catalyst was the Constitutional Court’s decision in Van Wyk (3 October 2025), which found that the previous “patchwork” of maternity leave, 10‑day parental leave, and separate adoption/commissioning parental leave categories unfairly discriminated between different parents and family forms.

In response, the Labour Laws Amendment Bill (published for public comment in Government Gazette 54220 of 26 February 2026) proposes to translate that constitutional direction into a consolidated, gender-neutral parental leave model and to align Unemployment Insurance Fund (UIF) benefits accordingly. (It is important to note though that because it is still a Bill, it is not yet enforceable law and may change during the parliamentary process.)

What follows explains how the proposed leave is intended to work, when entitlement arises, and why the Children’s Act concept of accepting (or assuming) parental responsibilities and rights sits at the centre of the new scheme.

The Proposed Parental Leave Structure

At its core, the Bill aims to replace the old, category-based system with a single parental leave entitlement that can be shared between parents (regardless of gender or how the child joins the family).

The model is framed around two headline entitlements:

• Four consecutive months’ parental leave where the employee is a single parent or the only employed party in a parental relationship.
• Four months and ten days’ parental leave in the aggregate where both parties to a parental relationship are employed, with the total to be divided between them according to the statutory allocation rules.

Two important design features follow from this. First, the total is shared; it is not four months and ten days per parent. Second, the scheme is deliberately flexible: Parents may split the entitlement concurrently or consecutively, or partly both, but (under the Court’s interim text, which the Bill draws from) each parent’s portion must be taken in a single, uninterrupted sequence of consecutive days.

Trigger Events for Entitlement

Entitlement is tied to recognised trigger events, and the dates matter because the framework also introduces timing rules for completion and notice.

For birth, the statutory framework continues to recognise that the person who gives birth may start leave up to four weeks before the expected date of birth (or earlier if medically certified) and that no female employee may work for six weeks after giving birth unless medically certified fit. For the shared portion between two employed parents, the interim constitutional text requires that – if agreement cannot be reached – the leave be apportioned so that each parent’s total is as close as possible to half of four months and ten days, and that the leave be completed within four months from the birth (subject to the adoption/surrogacy equivalents).

For adoption, entitlement is triggered on the earlier of the adoption order being granted or a court placing the child in the care of prospective adoptive parent(s) pending finalisation. A key policy shift in the Bill is the proposed extension of adoption-related parental leave to include adoptions of children up to six years old, replacing the long‑criticised “under two” limitation.

For commissioning parents in a surrogacy arrangement, entitlement is triggered on the date the child is born as a result of a surrogate motherhood agreement, with the leave to be shared between the commissioning parents where there are two.

The Leave Entitlement Hinge

The most practical entitlement question is often not “What leave exists?” but rather “Who counts as a parent for this leave?” The new model answers this by importing a Children’s Act concept.

Under the Constitutional Court’s interim text which the Bill is intended to codify, a person is treated as a party to a parental relationship for shared-leave purposes only if that person has assumed parental rights and responsibilities over the child as contemplated in the Children’s Act, 2005.

This is where “accepting rights and responsibilities” becomes decisive. The Children’s Act defines parental responsibilities and rights to include the responsibility and right to care for the child, maintain contact, act as guardian, and contribute to maintenance.

How, then, does one “assume” those responsibilities and rights?

• In many cases it is automatic e.g. a biological mother has full parental responsibilities and rights, and married fathers are covered through the Act’s acquisition mechanisms.
• For unmarried biological fathers, the Children’s Act sets out conditions under which full parental responsibilities and rights are acquired – such as living with the mother in a permanent life partnership at the time of birth, or (even without cohabitation) being identified as the father (or paying customary law damages) and contributing (or attempting in good faith to contribute) to upbringing and maintenance for a reasonable period.
• The Children’s Act also recognises that parental responsibilities and rights can be expanded or clarified by agreement with the mother or another rights-holder (commonly discussed in practice under the Act’s agreement mechanisms).

In the parental leave context, this means employers (and dispute forums) will increasingly look for objective proof of the legal parenting link — such as a birth certificate reflecting parentage, a court order, adoption documentation, or surrogacy confirmation — because the leave turns on legal responsibility, not only biology or social involvement.

Leave Sharing in Practice

The right is designed to vest when the trigger event occurs (birth; adoption order/placement; surrogacy birth), but its quantum and who can take what depends on how many employed parties there are and whether they can agree on allocation.

The Bill contemplates structured allocation rules to prevent deadlock, with special protection for the birthing parent where the parents cannot agree, while adoptive and commissioning parents are pushed toward equalisation. It also proposes limiting repeated use by employees other than the employee who gives birth, by providing that (excluding a female employee giving birth) an employee may not take parental leave more than once in a 12‑month period.

Notice remains part of the architecture: The interim scheme requires written notice (generally at least four weeks for parental leave, and at least one month around adoption/commissioning triggers), with flexibility where it is not reasonably practicable.

Responsibility Over Role

A recurring misconception is that parental leave is only available to the parent who will be the primary day-to-day caregiver during the leave period. The emerging framework does not set the entitlement threshold that way.

Instead, entitlement flows from being a party to a parental relationship, meaning that the father (or any parent) has assumed parental responsibilities and rights in the Children’s Act sense, and that the leave taken fits within the total pool allocated between employed parents.

That has three practical consequences:

• The father can qualify even where caregiving is shared with, or largely performed by, the other parent or extended family, because the statute focuses on status and responsibility, not on evidentiary inquiry into daily caregiving.
• The scheme expressly permits leave to be taken concurrently, which recognises that “supporting the family unit” may justify overlapping leave even if only one parent is the primary caregiver at any given moment.
• Where there is disagreement about allocation, the Bill’s proposed deadlock rules (including birthing-parent priority elections in birth scenarios) make the father’s practical access dependent on the allocation outcome rather than on proving hands-on care.

What fathers (and employers) should take seriously, however, is the Children’s Act threshold: If paternity is disputed or the father has not met the statutory conditions for acquisition of parental responsibilities and rights (for example, in an unmarried context), entitlement may be contested until the legal status is clarified.

An Important Distinction in Surrogacy

Commissioning parents are expressly included in the parental leave framework: Leave can commence on the date that the child is born through the surrogate motherhood agreement, and where there are two commissioning parents the leave is shareable between them. This aligns with the Children’s Act’s core surrogacy rule which says that a child born of a surrogate mother in accordance with a valid surrogate motherhood agreement is, for all purposes, the child of the commissioning parent(s) from the moment of birth.

The position of surrogate mothers who do not accept parental responsibility is different precisely because they are not intended to “accept” parental responsibilities and rights. Section 297 of the Children’s Act provides that, where the surrogacy agreement is valid, the surrogate mother has no rights of parenthood or care of the child, and no right of contact unless the agreement provides otherwise. In that standard scenario, she will generally not meet the parental relationship test for parental leave entitlement as a “parent”, because she does not assume parental rights and responsibilities over the child. However, two important nuances should be kept in view:

• Even if she is not a “parent” in law, the labour framework still recognises pregnancy and post‑birth health protections. The interim Basic Conditions of Employment Act (BCEA) text provides for pre‑birth leave and prohibits work for six weeks post‑birth unless medically certified fit. Where a surrogate is an employee, employers should therefore avoid conflating “parental status” with the separate, health-based protections attached to pregnancy and childbirth.
• The Children’s Act contemplates limited circumstances in which a surrogate mother who is also a genetic parent may terminate the agreement within a specified period after birth (with significant consequences for legal parentage). In that atypical outcome, her status could change in a way that may affect leave entitlements, and the facts would need to be assessed against the Children’s Act and the BCEA framework.

The Bill’s Next Frontier (and Current Gap)

 A final practical point is that leave and income replacement are not the same thing. The Constitutional Court crafted an interim leave regime for the BCEA provisions, but it expressly declined to read in an interim “expanded benefits” regime for the UIF because of financial and policy implications, suspending the UIF invalidity for 36 months.

The Bill therefore also proposes significant UIF reform: It would replace the existing separate maternity/parental/adoption/commissioning benefit categories with a unified parental benefit model and reorganise the UIF provisions to match the consolidated leave design.

Entitlement Beyond Stereotypes

The Bill’s most meaningful conceptual move is that it treats parental leave as a function of legal responsibility for a child, not a function of gender, biology alone, or stereotyped caregiving roles. In practice, that means the key entitlement question will often be: Has the employee accepted/assumed parental responsibilities and rights under the Children’s Act?