Issues affecting paternity leave law

Monday, October 14, 2019

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Dear Editor,

The debate surrounding paternity leave seems, for the most part, to be whether fathers should be rewarded or penalised for bad and unacceptable practices over the decades.

Justice Minister Delroy Chuck in a recent statement posited that what is needed is for fathers to be more responsible, through coercion and/or regulation, and maintain their kids financially. In his mind, paternity leave has no place in the Jamaican landscape at this time.

Opposition Leader Dr Peter Phillips, who has committed to introducing paternity leave regulations should the People's National Party form the next Government, made it clear that his configuration of paternity leave will not accommodate the man with eight babymothers. Interestingly, he did not term it the man with eight children from different mothers.

Whilst in the western world laws are being crafted and reviewed to be gender-neutral, paternity and maternity leave laws must consider and incorporate the unique roles of male and female in the reproduction and child-rearing process. Notwithstanding those gender-unique nuances, the law must otherwise be gender-neutral.

Views expressed that the man should [have to] register his 'main' spouse with his employer and only when that 'main' spouse is pregnant would the man qualify for paternity leave should not be entertained, as conversely, a pregnant woman is entitled to maternity leave whether she is having Joe's baby or her husband's baby. There is absolutely no requirement for her to declare whose baby she is having to quality for maternity leave the qualifier is that she is pregnant.

Equally, a woman having her kids for a different man each time (which does happen more often that we care to mention) does not disqualify her from maternity leave. She is pregnant and will have a child requiring her time and nurturing. The maternity law puts a cap on the total number of paid leave allowed per employer, per woman, period.

In the paternity debate, the desire for fathers to spend time with their kids and their financial obligations must be separated. Both are distinct and important. However, like all laws and policies, potential loopholes for abuse should be plugged. Thus, there should be mechanism in the law to disallow that man who would take paternity but not substantially spend it with his newly arrived child.

A second but related topic is surrogacy, and this can best bring context to how paternity leave should be crafted; as in surrogacy, the woman becoming the 'legal' mother is not/never pregnant but can take possession of her child within 24 hours of birth.

The law should be reviewed to allow her maternity leave and, equally so, paternity leave for her partner. The woman becoming a mother through surrogacy will not be breastfeeding, thus all the tasks of care and nurturing can be equally performed by either the woman or the man. Therefore, how would one justify granting the woman maternity but not paternity to the man, when they jointly entered into a surrogacy arrangement? This would certainly give credence to the man's role being confined to his financial obligations.

The surrogate mother currently would be entitled to maternity, notwithstanding that a day after giving birth she would have handed over the child to its legal and biological parents (gestational surrogacy) with no responsibility thereafter for child, care, or nurturing.

The surrogate woman should nonetheless also be recognised in the law as it relates to a with-pay break from work, as she too would need some recovery time (not equal to the mother, however).

Paternity leave should be introduced, but not be configured to prejudice the man and be so cumbersome that fathers who genuinely want to utilise the child-bonding time are discouraged by a law that is unnecessarily invasive and one that negatively stereotypes and gender prejudices the man.

Michael Gibbs

perfecthighq@gmail.com


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