Maternity leave Act: Too much or too less?
The Maternity Benefit Act, 1961 is a legislation that was passed to protect the employment of women at the time of her maternity. The Maternity (Amendment) Bill 2017, an amendment to the Maternity Benefit Act, 1961, was passed in Rajya Sabha on 11 August 2016, in Lok Sabha on 9 March 2017, and received an assent from President of India on 27 March 2017. It was from effect from 1st of April 2017. The provisions of this Act included numerous benefits for women who are expecting such as: As per Section 2 of the Act, the Act is applicable to all those women employed in factories, mines, companies, shops and commercial establishments that employ 10 or more than 10 employees. The Act is applicable to all the women who are employed in any capacity directly or through an agency, either through contractual or consultancy basis. Section 12 of the initial Act that still continues today, emphasizes that any dismissal or discharge of a woman employee during the pregnancy is unlawful and such employer can be punished under Section 21 of the Act. The amendment also increased the duration of the paid maternity leave from 12 weeks to 26 weeks. The extended period is applicable to women in case of first and second child. Women who are expecting after two children will be granted a paid maternity leave of 12 weeks, i.e., 6 weeks pre-delivery and 6 weeks post-delivery. The amendment also brought in inclusivity by granting the same benefits to adoptive mothers as well. As per Section 3 of the Act, Commissioning mother means a biological mother her egg to create an embryo implanted in any other woman. As per Section 5(4), adoptive mother who adopts a child of upto 3 months or a commissioning mother, are entitled to 12 weeks of maternity leave from the date of commissioning/adoption. Every woman who has adopted a child will get 12 weeks of maternity leave from the date of adoption. This reduces discrimination against women who are not able to conceive naturally and have resorted to other aids like adoption and recognises their responsibilities, duties, obligations, challenges and needs too. The amendment even introduced the option of “work from home” for mothers in Section 5(v). After the expiry of the 26 weeks of leave period, women can use the work from home option to do their jobs. This provision is extremely helpful for mothers since they can continue doing their jobs without having to commute to work everyday or leave their children alone at home. Families who cannot afford nannies usually have to resort to leaving their babies under the supervision of relatives who might not be proficient with the requirements of a new-born. And the work from home option will help parents avoid that. Another particularly important aspect of this Act is Section 11(a)(i) which includes the compulsion corroborated for every establishment that employs 50 or more women, to have in-house creche facilities and to allow women to visit the creche 4 times during the day. This also helps women overcome a major challenge that new mothers have to face, which is to leave their babies with a nanny or some other relative at home. Having a creche in the same establishment would help the mother keep a close look on the child and work at the same time. According to the Act, the use of a crèche facility is proposed to be extended to children of the age group of 6 months to 6 years of all employees including temporary, daily wage, consultant and contractual personnel. The creche should be near/at the workplace site or in the beneficiaries’ neighbourhood, within 500 meters. The crèche preferably should open for 8 hours to 10 hours. In case the establishment has day and night shifts, then the crèche should also be run in shifts. The Act also mandates the following facilities to be provided: Crèches should be concrete, with a minimum space of 10-12 sq. ft. per child, with ventilation, drinking water and with no unsafe places such as open drains, pits, garbage bins near the creche. Besides the above facilities, the creche must also provide a guard, who should have undergone police verification, ramps and handrails, one supervisor per crèche, a minimum of one trained worker for every 10 children who are under three years of age and for every 20 children above the age of three the creche should have one trained worker along with a helper. No plumbers, drivers, and electricians and other outside persons should be allowed inside the crèche when children are present. Also, a crèche monitoring committee should be formed having representations from among crèche workers, parents, and administration. Above all a grievance redressal committee should be formed for inquiring into instances of sexual abuse. A few other provisions that the amendment has granted include benefits like: the paid maternity leave that can be availed 8 weeks before the expected date of delivery. Before the amendment, this duration was limited to 6 weeks. Another very important thing to note is that the amended Act makes it compulsory for the employers in Section 11(ii) to educate their female employees about the maternity benefits available to them at the time of their appointment.
In order to decide whether the maternity leave benefits are too much or too less or just appropriate, we need to assess the provisions through various lens. There is no doubt that the Act is in line with the recommendation of the World Health Organisation which says that children must be exclusively breastfed by the mother for the first 24 weeks. Hence, the duration of leave being granted by the now amended Act (26 weeks) will be helpful for mothers to take care of their kids’ nutrition and look after their needs, as well as recover from the childbirth at the same time. This extension in the maternity leave will also help in improving survival rates of children and help in healthy development of both the mother and the child. The Act also allows for inclusivity by introducing 12 weeks of maternity benefits to the adopting and commissioned mothers. All of these provisions will help reduce the instance of women dropping out of the labour force due to the absence of adequate leave. The amended Act also falls in line with the ideal practices internationally laid out by the Maternity Protection Convention, 2000. They call for at least 14 weeks of mandatory maternity benefit. But this Act also lacks in several ways. It promotes patriarchy by appointing the whole responsibility of child caring to the mothers. By not making provisions for paternity leaves for the fathers, the Act is inevitably putting more workload on women by making child-bearing a job solely for one parent rather than for two. The Act also does not make any provisions for women in the unorganised workers category. These include women whose work is home-based, self-employed or wage workers. The Act also excludes women who work in enterprises having less than 10 employees. The Act does not take into account the needs of these women. Another major drawback of this Act is that it is only for women who have been working as an employee in an establishment for a period of at least 80 days. Only these women are entitled to the maternity benefits under the provisions of the Maternity Benefit Act. This is not inclusive of those women who have recently joined in and are expecting. The Act also discriminates against those who have more than two kids. The amendment only extends paid maternity leave for women employees with less than two surviving children, from the original 12 weeks to 26 weeks. Those with more than two kids can only take up to 12 weeks of paid maternity leave, leaving only 6 weeks post-delivery. This is demeaning to women who have more than two kids since their responsibilities are even more than those with fewer kids and they should be entitled to a longer duration of leave. Another important thing to note here is that a mother’s responsibility does not end after 6 months. Since the child is so young, its nutrition, safety, growth, recreation and enrichment will have to be paid close attention to. There will also be frequent paediatric visits. A child this young also needs to be monitored the entire time and cannot be left unattended. Even the mother needs time to recover after the childbirth. It takes time to recover from the pain. There can be postpartum depression, severe hormonal changes and sleep deprivation issues. It can be difficult for women to work under such conditions. Another prominent drawback of this Act is that it demands the employers to bear the entire burden of the cost of providing leave to the workers. Additional requirements like creche facilities require more capital and operating expenditure. This will discourage employers from hiring women in the childbearing age-group in their companies to avoid spending money. This will further aggravate gendered discrimination. Existing women employees might face a reduction in compensation as firms compensate for higher lifetime costs. This process is also unfair to the employers since they will have to bear the entire cost of providing leave to employees, in terms of both continued pay while on leave, as well as the indirect cost of having to get the work done by employing other workers to finish the work of the absent employee. Also, it increases the cost of temporary training provided to the employee which is employed on behalf of the absent employee.
It can also be seen how the how Maternity Benefit Act lacked in the past by reviewing past cases. In the case of Pooja Jignesh Doshi Vs. The State of Maharashtra and Ors, the petitioner was unable to carry a second child and chose surrogacy as a solution. The surrogate mother, i.e., the petitioner, requested maternity leave prior to the birth of the child but was rejected. The respondent refused the petitioner’s request for maternity leave to care for the surrogate child, claiming that the Leave Rules and the policy controlling the Rules do not allow for maternity leave for a surrogate kid. The High Court explored the idea of motherhood and pregnancy in this decision and identified the loopholes in the rationale behind drafting the laws. The court held that the purpose of maternity leave is to maintain the dignity of motherhood and to offer care for the child’s and mother’s well-being, as well as for the mother-child relationship and to make a distinction between a mother who has a biological kid and one who has a child via surrogacy would be demeaning to the womanhood and motherhood of the woman who desires to nurture a child. The court even cited the right to life, as defined by Article 21 of the Indian Constitution which encompasses the right to motherhood as well as the right to the full development of every child. Hence it was then ruled that maternity leave be provided to biological and surrogate mothers. In the case of Anshu Rani vs State Of Uttar Pradesh And Ors, the petitioner Anshu Rani applied to the District Basic Education Officer in Bijnor for maternity leave. She was awarded 90 days of maternity leave in lieu of the 180 days she had requested and was not provided a rationale for having her leave term cut in half. The Allahabad High Court referred to the revised Maternity Benefit (Amendment) Act, 2017). According to the requirements of the 2017 amendment, maternity leave has been increased from 8 weeks to 26 weeks, and the petitioner is allowed to take advantage of it, granting the petitioners maternity leave as social insurance. In the case of Rasitha C.H. Vs State of Kerala & Anr, the petitioner, Rasitha was denied maternity leave by the Calicut University on the grounds that the terms of her contract did not envision the grant of such leave. The court held that a woman employee cannot be refused maternity benefits only because her employment status is contractual. As a result, despite anything in the contract agreement, the University is obligated to provide such benefits.
When we compare the maternity leave laws with other nations, we can easily conclude that the benefits provided in India are less. We have come a long way with respect to bringing change to the workplace environment and benefits to make the nation a better and more comfortable place for women, but we still have a long way to go. Motherhood is tough and having the support of everyone around including your employers will make the process easier. It will help women receive the respect they deserve and aid them in bringing up children as well as flourishing in their own professional careers. An increased duration of maternity leave may also lead to women becoming happier and more productive when they come back to work. It would also be better for employers since they would retain her expertise and not incur unnecessary costs on finding and training a new hire. Paid parental leave would also help keep families afloat financially, helping the country’s overall economy. The payment that parents would receive during the paid leave can help them adjust to the financial burden of a new-born. New-borns have various requirements including, food, medicines, diapers, clothes, doctor visits, toys, pram, cradle etc. The payment would hence help reduce child care costs incurred by the family. By also making provisions for paternity leave, there would be less pressure on mothers to take the whole responsibility of the child. It would make the child-rearing process an equal responsibility of both the parents and help reduce the burden off the mother. Maternity leaves can also help reduce risk of postpartum depression. Even for mothers who do contract postpartum depression, the ability to take time off can be helpful. It helps women take their minds off work and not worry about pay at all and helps them deal with their own mental health. Another thing to note is that women who take maternity leave tend to stay with the same employer after returning. This is because they feel supported by their employers and hence want to keep working for the same company. Lastly, I feel the leave is a must and not just a benefit for women. It is a need for them. Women who give birth to their children are coping with dual strains on their physical and mental health: a body recovering from pregnancy and labour and a new-born who needs constant supervision. Paid maternity leave allows women and families to take time to adjust to their new lifestyles. Hence, when women do return to work, they are better equipped to handle the challenges of balancing parenting and work. Hence, now that we know the rationale behind granting maternity leave to women, it is important that we implement better and improved policies in India too.
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Written by Reema Nayak
 Pooja Jignesh Doshi v. The State of Maharashtra