Autonomy and Equality in the Context of Parental Labour Rights

A Legal Gender Studies Approach to Mandatory Parental Leave Policies

Abstract

Starting from the establishment of maternity protection as a gender-specific employment right in the 19^th century, this paper analyses the development of parental protection rights in Austria labor law. The legal developments are embedded in theoretical reflections on the concepts of equality and autonomy. The main focus is put on gender-specific birth-related leave schemes, that is maternal and paternal leave. Other than parental leave, these types of leave differentiate between birth mothers and other parents. Maternal leave [Mutterschutz] provides a compulsory leave period, whereas paternal leave [Frühkarenz and Papa- or Baby-Monat] grants fathers and co-mothers a shorter voluntary leave period. These differentiations are legally justified due to the bodily dimensions of pregnancy and childbirth, but at the same time they limit parents’ autonomy regarding their care arrangements and reproduce the gendered division of labor. Both economic compulsions and gender norms influence the uptake of voluntary parental leave and contribute to the low participation rate of fathers. The article therefore argues for an extension of mandatory parental rights to fathers and co-mothers.