Legislation and Policies for the Right to Maternity Protection in South Africa: A Fragmented State of Affairs

Background: Maternity protection rights incorporate comprehensive benefits that should be available to pregnant or breastfeeding working women. Research Aim: To describe South Africa’s maternity protection legal and policy landscape and compare it to global recommendations. Method: A prospective cross-sectional comparative policy analysis was used to review and describe national policy documents published from 1994–2021. Entitlements were mapped and compared to International Labour Organization standards. The document analysis was supplemented by interviews conducted with key national government department informants. Thematic analysis was used to evaluate policy and interview content. Results: Elements of maternity protection policy are incorporated into South Africa’s constitutional dispensation, and some measures are consistent with international labor and social security standards. However, the policy framework is fragmented and difficult to interpret. The fragmented policy environment makes it challenging for employees to know their maternity rights’ entitlements and for employers to understand their responsibilities. Confusion regarding maternity protection rights is amplified by the complexity of ensuring access to different forms of maternal protection in pre- and postnatal stages, oversight by multiple government departments, and heterogenous working environments. Conclusions: Maternity protection in South Africa is fragmented and difficult to access. Overcoming these challenges requires legislative and implementation measures to ensure greater policy coherence and comprehensive guidance on maternity protection rights. Addressing gaps in maternity protection in South Africa may provide insights for other countries with shortcomings in maternity protection provisions and could contribute to improved breastfeeding practices.

This study was a prospective cross-sectional comparative policy analysis using a mixed method approach (Holland & Novak, 2018). As is common for public health policy analysis, we used a combination of document review and key informant interviews (O’Brien et al., 2020), together with interpretation from published literature to achieve this aim. All documents describing and analyzing policy content were publicly accessible. Ethical approval was obtained from the University of the Western Cape Biomedical Research Ethics Committee on 20 June 2020 (Reference Number: BM20/5/7). Although classified as a middle income country, South Africa has high rates of poverty, inequality, and unemployment (Statistics SA, 2021). Women and men’s labor force participation rates are 51.4% and 62.6% respectively. Approximately 68% of employed women and men work in formal employment while the remaining 32% are employed informally (20.6% of men, 14.6% of women), work in the agricultural sector (7.2% of men, 3.9% of women) or in private households (3.7% of men, 13.5% of women; Statistics SA, 2021). While breastfeeding rates in South Africa have improved, average duration of exclusive breastfeeding is only 2.9 months and 32% of infants under 6 months (National Department of Health [NDoH] et al., 2019) are exclusively breastfed (EBF), defined as receiving only human milk and no other liquids including water, or solids during the first 6 months (World Health Organization [WHO], 2008). EBF declines with infant age; 44% of 0–1-month-olds are EBF compared to 24% of 4-5–month-olds (NDoH et al., 2019). Approximately 75% of public birthing units in South Africa have the “Baby Friendly” designation (Martin-Wiesner, 2018). There are only 49 International Board Certified Lactation Consultants (IBCLCs) in South Africa but breastfeeding support is also provided by breastfeeding peer counsellors and community health workers (Nieuwoudt et al., 2019). Despite the government’s commitment to breastfeeding, there are still provincial, geographical, and socioeconomic disparities and inequities in breastfeeding rates and access to breastfeeding resources (Martin-Wiesner, 2018). South African national legislation is issued or amended by the legislature (Parliament). A Bill is introduced by the relevant government department or an individual Member of Parliament. It is then published for public comment. Following various stages of approval it is signed by the President as an Act (law; Parliament of the Republic of South Africa, 2022). Each government department issues (and amends) the policies required to implement the department’s statutory obligations. National policy documents containing any provisions relevant to maternity protection in South Africa were sourced and reviewed by one of the authors (CPK). In this research, policy documents (or policy frameworks) refer to any policy tool available to implement policy, including the Constitution, legislation and regulations, national policies, and national guidelines (e.g., codes of good practice, a national declaration, national guideline, national booklet, and national position paper). Documents published from 1994 to September 2021 that incorporated at least one element of maternity protection were included. Altogether 24 national policy documents (N = 24) identified between 1995–2018 contained provisions relevant to South Africa’s maternity protection. We are satisfied that the most relevant national policy documents were included. No documents were excluded. Following document analysis, individual in-depth interviews were held with key informants (N = 3) about national maternity protection policy development and implementation. Key informants were purposefully selected based on their position to influence South Africa’s national maternity protection policy and for their knowledge and experience on national maternity protection policy. Participants were included if they worked for a national government department involved directly in maternity protection policy development. Although only three key informants were purposively identified, these informants were selected as important stakeholders in South Africa for maternity protection including one informant from each of the departments involved in setting maternity protection policies. Relevant documents were identified by CPK during August–November 2020. The ILO recommendations guided sourcing of policy documents (ILO, 2012b), indicating that maternity protection components are usually located in labor, social security and anti-discrimination legislation, and health policy (ILO, 2012c). Additionally, previous reviews on similar topics were evaluated (Ernst & Young, 2019; Martin-Wiesner, 2018). Websites of relevant national government departments were searched. Documents were categorized into the Constitution, legislation (N = 13) (legally enforceable), national policy (N = 2; enforceable by the department responsible) and national guidelines (N = 8; non-legally binding recommendations based on legislation or policy). The range of documents identified incorporated all components of maternity protection and reflect what is described on maternity protection in published literature. Documents published from 1994 until September 2021 were included (Table 1). National Policy Documents in South Africa Containing Provisions Relevant to at Least One Component of Maternity Protection. Key informant interviews were conducted during October and November 2020 with three employees of national government departments, comprising two females and one male. Participants worked in the National Departments of Employment and Labour, Health and Social Development. Interviews were conducted in English by CPK, a female PhD student trained in qualitative research. Approval was obtained from participants’ immediate supervisors to participate in the interviews and their informed consent was obtained verbally. Online interviews were conducted using a virtual platform chosen by the interviewee. All interview data were stored electronically and securely by CPK. An interview guide (see supplemental material) containing broad questions and follow-up probes was used to obtain insights into policy content and implementation. Limited socio-demographic information on key informants was collected. Interviews took approximately 45 min, were audio-recorded, following participants’ verbal informed consent, and transcribed by CPK. Participants’ confidentiality was maintained by removing any personal information and any names linked to individuals’ insights from the transcribed data in any reporting of the results. Privacy, confidentiality, and anonymity were thereby ensured. To ensure that the influence of the interviewer’s personal characteristics was taken into account, the interviewer made notes during and after each interview on her initial reactions to the interview and how her position (as a student researcher) may have influenced participant responses, and reflected on topics discussed and considered topics needing discussion in future interviews (Dodgson, 2019). The interviewer’s role as a student may have allowed participants to view the interaction as constructive and information-gathering as opposed to an interrogation. This may have promoted honesty in responses. Interview transcripts were checked for accuracy as a quality-control measure. We compared the maternity protection policies described in the policy review with recommendations made in selected international documents—namely, the ILO Maternity Protection Convention 183, the ILO Maternity Protection Recommendation 190, and CEDAW. No additional data collection was undertaken for this study aim. Various frameworks exist to manage and analyze public health policy. We used the “READ approach” which includes “(1) ready your materials, (2) extract data, (3) analyze data and (4) distil your findings” (Dalglish et al., 2020, p. 1424). All documents were assigned a label. The following information extracted from documents were entered into a Microsoft Excel spreadsheet: title, date, author, publisher, sector, document type, purpose of document, target audience and the component(s) of maternity protection addressed by the document. Tables 2 and ​and33 present the structure of the data analyses. Policy content was organized by identifying text referring to any component of maternity protection. The components of maternity protection contained in each document were summarized and documented in tables. Published reviews of maternity protection related policies were also sourced (Hicks, 2019; Martin-Wiesner, 2018), including research conducted by an independent company, commissioned by the National Department of Employment and Labour (Ernst & Young, 2019). These documents were used to compare this study’s results to existing published analysis of South Africa’s maternity protection policy, within the context of ILO recommendations. A thematic analysis approach was used for evaluation of policy content and to interpret the interview data (Vaismoradi & Snelgrove, 2019). Data Analysis Structure for Key Informant Interviews. Data Analysis Structure for Document Analysis. Note. BF = breastfeeding. Key Informant interview transcripts were read and re-read by CPK, who manually allocated codes to similar groups of information and developed overarching themes linked to these codes. Themes for key informant interviews were developed using the “health policy triangle” conceptual framework for policy analysis. This considers policy content and the context, actors, and process involved in policy development as described in Table 2 (Walt & Gilson, 1994; WHO, 2018). In addressing reflexivity, CPK had informal discussions with co-authors to ensure accurate interpretation of the data. Data extracted from published policy documents and information obtained from the interviews were triangulated to develop a more comprehensive understanding of the maternity protection policy landscape in South Africa. Textual information from the document analysis was compared to quotations from the interview participants to ensure that documents were accurately interpreted and described. The themes and codes used for the analysis of the documents and key informant interviews are summarized in Table 3.

• pereira-kotze, catherine
• malherbe, kitty
• faber, mieke
• doherty, tanya
• cooper, diane