Last updated on Jun 10th, 2021 at 06:44 pm

A group of adoptive parents and adoption organisations are rallying behind the challenge to South Africa’s labour legislation relating to leave for adoptive parents so it could be brought in line with the mandatory four consecutive months of maternity leave for women employees as stated in the Basic Conditions of Employment Act.

Paid time-off for new mothers – whether through childbirth, adoption or surrogacy – is an employee incentive internationally, with companies such as Netflix setting the standard by offering new parents unlimited paid leave during the first 12 months.

Software giant Adobe and Google provide paid time off for all primary caregivers of 16 weeks and 12 weeks respectively regardless of gender.

Though South Africa does not regulate the provision of adoption, government institutions allow both adoptive parents a 45-working-day leave

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Stellenbosch University and parliament lead the way in South Africa. They offer up to four months’ leave to mothers who adopt a baby

This is not yet widely offered in the private sector, where adoption leave is at the discretion of employers, resulting in many adoptive mothers being forced to settle for either unpaid leave or the minimum three days of paid family responsibility leave, similar to that provided to fathers for paternity leave. This, adoptive parents say, is insufficient and unfairly discriminatory.

“The lack of maternity leave for adoptive parents places them and their children at a disadvantage because they, too, require the opportunity to develop an attachment with each other,” said senior associate and public interest lawyer Nicki van’t Riet.

Van’t Riet, of Norton Rose Fulbright, intends to lodge an application on behalf of five individuals and two organisations by the end of the year.

If successful, South Africa could join Denmark, Singapore, the US and UK in making provision for statutory adoption leave through legislation.

The lawyers will argue that not allocating primary caregivers or adoptive parents the same time off as natural mothers to bond with and care for their children is unconstitutional in that it violates the rights of both the child and parent.

“The lack of maternity leave for adoptive parents places them and their children at a disadvantage because they, too, require the opportunity to develop an attachment with each other”

Labour market analyst Loane Sharp, however, cautioned against taking the judicial route, saying the action could have an “unintended consequence”.

“Society and the economy first need to be given a chance to adapt. Otherwise, these imposed duties could result in the reduction of the value and, therefore, wages of people like fathers, adoptive, single or same-sex parents, which means that the most vulnerable and marginalised in society will be worse off,” he said.

Parliament labour portfolio committee chairman Lumka Yengeni said adoption leave was not an issue her committee had yet started to discuss.

“The missing legislation is an insult to citizens who undergo the tough adoption system,” said Sue Krawitz, vice-chairman of the National Adoption Coalition and director of Impilo Child Protection and Adoption Services.

“We live in a country where we have a lot of abandoned children. Adoptive parents need to be rewarded with the required time, if not more, to bond with their children.”

Other challenges facing adoptive parents include the lengthy period between the date of adoption and when the child is officially placed in the home. This, said Krawitz, further complicated the adoption leave process if employers considered the first day of leave from the date of adoption.

According to the National Adoption Coalition SA, there were 1 448 adoptions nationally last year.

The number of orphans has increased by 30% between 2004 and 2014 to 5,2 million. Over the same period, foster care grants have increased by 70%, while adoption has decreased by more than 50%.

Clinical psychologist Judith Ancer said that adopted children experienced disruptions in the early stages of their development as a result of abandonment and the lack of attachment.

The bond between a mother and her baby starts from within the uterus, according to Ancer. So adopted children are unable to develop skills such as self-soothing, trust in relationships or others that might form the building blocks of healthy relationships.

“The longer a child is out of a family unit, the more their early start is compromised.”

Cape Town mother Laverne Vermeulen, who in July launched a petition calling for adoptive parents to get equal maternity leave, hoped the court application would be a success. The petition has so far received 960 signatures and needs at least 2 000 in order for Vermeulen to take it to court.

Vermeulen took up the challenge because she was passionate about securing equal rights for adoptive parents because they were taxpayers and law-abiding citizens too.

Author: Poppy Louw. Republished with kind permission of