On Tuesday 12 March, the fifty-seventh session of the Commission on the Status of Women (CSW57) turns its attention to the ‘equal sharing of responsibilities between men and women’. In anticipation of these discussions, Professor Sandra Fredman comments on recent European case law extending women’s parenting rights to men.
It is now readily acknowledged that women’s continuing primary responsibility for child-care is a major factor in perpetuating the stubborn gender gap. The attempt to secure maternity rights has therefore been a major focus of decades of campaigning for women’s equality. However, it has always been of concern that maternity rights might reinforce rather than dispel the assumption of women’s responsibility for child-care. The goal of equal participation of women in the workplace needs to be matched by equal participation of men in the home. How do we bring men back into the frame?
A starting point is to distinguish between pregnancy rights and parenting rights. Whereas pregnancy is unique and should be treated as such, a true application of substantive equality requires a ‘levelling up’ option, extending women’s parenting rights to fathers.
Two recent cases in the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) reflect this approach.
The CJEU case of Roca Alvarez, concerned a Spanish measure giving employed women a right to time off for breastfeeding. It was agreed that in practice, leave was no longer used for breastfeeding, but as time off to look after babies. All employed mothers were entitled to the leave, but employed fathers could not claim it unless their wives were also employees. The husband of a self-employed woman complained that this was a breach of his right to equality under the Equal Treatment Directive. The Court upheld his claim.
Without engaging in the contortions of earlier case-law on the comparator, the CJEU had no hesitation in declaring that ‘the positions of a male and a female worker, father and mother of a young child, are comparable with regard to their possible need to reduce their daily working time in order to look after their child’.  The Spanish Government submitted that the aim of the measure was to compensate for the genuine disadvantages suffered by women in comparison to men. The Court, however, pointed out that to give this right only to an employed mother, and not an employed father, would be ‘liable to perpetuate a traditional distribution of the roles of men and women by keeping men in a role subsidiary to that of women in relation to the exercise of their parental duties.’  Furthermore, this would mean that a mother would ‘bear the burden resulting from the birth of her child alone, without the child’s father being able to ease that burden.’ 
An equally robust approach is evident in the 2012 ECtHR Grand Chamber case of Konstantin Markin, in which a Russian servicemen claimed the right to three years parental leave to look after his three children, for whom he was the sole carer after his divorce. The Russian Labour Code of 2001 has generous provisions for maternity and parental leave for civilian parents. While servicewomen were entitled to the full package of maternity and parental benefits under the Act, servicemen were not. At most, a serviceman was entitled to three months’ leave if his wife had died in childbirth, or he was bringing up a child left without maternal care. The Grand Chamber held that this was discriminatory. In doing so, it drew a bright line between maternity leave, ‘which is intended to enable the woman to recover from the childbirth and to breastfeed her baby if she so wishes,’ and parental leave and allowances which ‘relate to the subsequent period and are intended to enable a parent concerned to stay at home to look after an infant personally.’  This allowed the Court, like the CJEU in Roca Alvarez, to dispose of the comparator problem without much trouble. As in Roca Alvarez, the Government in Markin claimed that the provision of maternity leave to servicewomen and not to servicemen was a measure of positive discrimination. The Grand Chamber gave short shrift to this argument. Instead, it agreed with the applicant ‘that such difference has the effect of perpetuating gender stereotypes and is disadvantageous both to women’s careers and to men’s family life.’  The Court accepted that some limits on entitlement to parental leave may be necessary in relation to the armed forces, for example if military personnel were not easily replaced in their duties. However, any limit on their entitlement should apply to both men and women.
The goal of equal participation of women in the workplace needs to be matched by equal participation of men in the home. This is only possible if the conception of equality is shaped by a conscious and explicit commitment to the social value of parenthood. The provision of equal parenting rights for fathers is a crucial first step However, equality is only as good as the substantive rights it supports. If real cultural change is to be achieved, the appropriate incentives must be provided to ensure fathers utilise their rights, whether by means of mandatory leave for men, non-transferable parental benefits, and sufficient levels of pay, accompanied by wide-ranging restructuring of the working day to permit a more flexible balancing of paid and unpaid work for both men and women.
Professor Fredman is the Director of the Oxford Human Rights Hub and the Rhodes Professor of the Laws of the British Commonwealth and the United States.