By appealing to the constitutional court of Georgia with a constitutional litigation, Human Rights Education and Monitoring Center demanded that the inexistence of a paternity leave for biological fathers and a right for its reimbursement specified by legislation be deemed as unconstitutional.
The current code gives the right to a parental leave to an employee, which is at a first glance a neutral entry. However, the plaintiff provides existing records and their related combined analysis of standards. It is clear that the employee with the right for leave is considered to be only a woman, and a baby’s biological father is ineligible for this support.
Moreover, the issue of reimbursing a parental leave is defined by Georgian minister of labor, health and social affairs, who directly determines that the basis for reimbursement of the parental leave is a hospital document, which is issued only to women. According to the same order, the hospital document is issued to a baby’s father only in case of a woman’s death. Therefore, the specified order directly excludes fathers from the persons with the right to a paid parental leave.
EMC proves by the constitutional litigation that this kind of regulation reveals a discriminatory approach on one hand to biological fathers in relation to mothers, and on the other hand in relation to fathers who adopt. On the basis of a particular entry in the labor code, the latter also have a right to readily take advantage of a parental leave and its reimbursement in case of adopting a newborn. EMC believes that taking care of a child is an equal right and at the same time responsibility for both parents. Therefore, it is unjustifiable for a government to grant the specified capability to only one of the parents.
Apart from restricting their equality rights, according to the plaintiff, holding back the parental leave and its reimbursement from men also results in limiting their labor rights. Likewise, it unjustly interferes with the rights of family wellbeing and spouse equality guaranteed by Georgian constitution. Namely, the current legislation does not give spouses the ability to care for their child and share this responsibility according to their own intention and agreement. Additionally, by the definition of the plaintiff, the right to family wellbeing incorporates not only marriage recognized by the legislation; but its content is considerably wider and encompasses also cohabitation without registered marriage and babies born in this common-law marriage.
In consideration that taking care of a newborn is not only a right, but also a responsibility, the plaintiff demonstrates, that intervention in women’s right to equality before the law is obvious. Particularly because the existing legislative regulation imposes responsibility of child care only on a woman. It reinforces the discriminatory, unequal and patriarchal views that are established in society about a woman’s pre-determined role and function, which is expressed by responsibility of child care.
Given these points, EMC believes, that the questionable standards oppose Georgian constitution’s 14th article, first and fourth items of the 30th article, and first and second items of the 36th article.