By Ms. Aparna
Abstract
“Motherhood is the biggest gamble in the world. It is the glorious life force. It’s huge and scary–it’s an act of infinite optimism.”
-Gilda Radner
Pregnancy is a phase that is considered to be one of the most pleasurable yet painful periods of a woman’s life. A mother’s role in a child’s life, especially in the after-birth phase is vital and irreplaceable, the amount of effort, care, love, and motivation she provides is priceless which shapes a human being from scratch. The sacredness and sanctity of this stage at one hand, also many a times means compromising the woman’s career for the sake of her children’s welfare. However, there are certain laws in India’s legal framework that seek to ensure that a woman’s career is not severely jeopardized in this phase and the laws offer certain protective measures and safeguards against discrimination and payment of salaries and wages. This article is a humble attempt to analyse the maternity rights of a woman in India and is also a study of the salient features of the recent Maternity Benefit (Amendment) Act, 2017.
1.What is Maternity Leave?
Maternity Leave refers to a specific duration of leave that every pregnant woman is entitled to, that is fully compensated for by her employer, for pre-natal and post-natal care of the baby. This regimen is regulated by the Maternity Benefit Act, 1961 that provides guidelines for the employer and confers rights on the pregnant woman. This Act solicits to protect the dignity of motherhood and to avoid any kind of inequity to women at their workplace owing to their pregnancy. It also confers certain kind of benefits for pregnant women.It is pertinent to point out here that this applies even to a woman who gives birth to a still-born child[i] and also to women who have undergone miscarriages.[ii]
2.Duration of Maternity Leave
The duration of the maternity leave, before the passing of the Amendment Act in 2017 was 12 weeks, that is to say, six weeks up to and including the day of delivery and six weeks immediately following that day. However, where a woman dies during this pregnancy period, the maternity benefit shall be payable only for the days up to and including the day of her death.[iii] However, the Amendment Act raises this duration to 26 weeks,[iv] this is one of the highest paid periods of maternity leave all around the globe and India has set precedent to the rest of the world by raising this period to as high as 26 weeks. A maximum of eight weeks can be taken before the expected delivery date and the remaining after childbirth, according to the Amendment Act.[v] Moreover, for women who already have two children and are expecting their third child have 12 weeks of paid maternity leave, six weeks before childbirth and six after.[vi]
3.Benefits for Mothers Who Adopt
Whilst many of us may not be aware of this, maternity leave is also guaranteed to mothers who choose to adopt children, which portrays the progressive and dynamic nature of this Act. Further, this is also applicable to commissioning mothers, i.e., the biological mother who uses her egg to create an embryo which is implanted in another woman.[vii] A woman who legally adopts a child below three months or a commissioning mother is entitled to a paid maternity leave for a time span of 12 weeks from the date the child is handed over to the adopting mother or the commissioning mother, as the case maybe.[viii]
4.Benefits in case of a Miscarriage
Miscarriages come out as a devastating result of pregnancy, sometimes. “Miscarriage” refers to the expulsion of the contents of a pregnant uterus at any period prior to or during the twenty-sixth week of pregnancy.[ix]Some women undergo unfortunate miscarriages and the Act accommodates a maternity benefit to these women as well. Firstly, no woman is permitted to work at an establishment six weeks following the day of her delivery of her miscarriage.[x] Further, upon the production of a proper medical proof, the woman will be entitled to a leave with wages at the rate of maternity benefit for this period of six weeks.[xi]
5.Dismissal During Maternity Leave
When a woman absents herself in conformity with the provisions of the Act, it shall be unlawful for her employer to discharge or dismiss her during or on account of such absence or to give notice of discharge or dismissal on such a day that the notice will expire during such absence, or to vary to her disadvantage any of the conditions of her service.[xii] This, albeit, should not make a woman ineligible for medical bonus or benefits, a woman who has been deprived of the same is given the right to appeal against the alleged discrimination.[xiii]
6.Other benefits
There are certain other perks to new mothers that are mandated by the Act. The Act requires the setting up of a crèche, by the employers of establishments having 50 or more employees within such distance as may be prescribed, either separately or along with common facilities. Women employees can be permitted to visit the crèche four times a day.[xiv] Moreover, employers are obligated to inform women when initially appointed, in writing or electronically, about benefits conferred under the Act so as to make them aware of their rights.[xv]
7.Criticisms of the Act
Before jumping into the scrutiny of this Act, at the outset, the Maternity Benefit Act, 1961, vis-à-vis the 2017 Amendment, is a highly comprehensive piece of legislation that provides solutions for a number of contemporary problems, including paid maternity leave for a commissioning mother, a woman who undergoes miscarriage and a mother who adopts a child below 3 months. Further, the period has also been extended to 26 weeks from 12 weeks, which is one of the highest in the world, thereby making India a pioneer in this mechanism.
Howbeit, the major issue with this Act is that these benefits extend only to women working in an organization that employs 10 or more people and only for those working for at least 80 days in the 12 months immediately preceding the expected delivery date in that establishment. This, largely, does not cover women working in the informal sector wherein, less than the prescribed numbers of employees are working.
Further, some experts are of the view that, “The maternity Act is an example of what Antony Allott called ‘phantom legislation’, ‘the passing of laws which do not have, and most probably cannot have the desired effect. The illusion of progress, of doing something, is given, but the reality is far different.'” Further it is also contemplated that “The law has an ideological dimension. It is a part of what the Indian elite thinks is good, just, and prestigious in the international community,”.[xvi] A shocking survey also reveals that despite the advanced nature of the Act, it extends and protects only 1% of the women workforce in the country.[xvii]
Even though there is legislation in place, the on-the-ground implementation of the same seems to be very poor and this lack of execution deters the spirit of women who are forced out of their jobs owing to their pregnancies. It is quintessential to have a sound pragmatic application of the Act so as to ensure that every woman is conferred with the benefits under this Act.
Another important fact is that India does not have a legal framework that provides ‘paternity leave’ for the fathers as well, to aid the mother in this process. ‘Child-care’ largely remains to be a domain that is left only to the mother and further amendments to this Act, to include both the parents are pivotal.
[i] Section 3(b), Maternity Benefit Act, 1961, No. 53, Acts of Parliament, 1961 (India). [ii] Section 4, Ibid. [iii] Section 5(3), Supranote i. [iv] Section 3A(i), Maternity Benefit (Amendment) Act, 2017, No. 6, Acts of Parliament, 2017 (India). [v]Id. [vi] Section 5(A), 3(i), Supra note i. [vii] Section 2(ba), Supra note i. [viii] Section 5(4), Supra note i. [ix] Section 3(j), Supra note i. [x] Section 4(2), Supra note i. [xi] Section 9, Supra note i. [xii] Section 12(1), Supra note i. [xiii] Section 12(2)(b), Supra note i. [xiv] Section 11A(1), Supra note i. [xv] Section 11A(2), Supra note i. [xvi]ManaviKapur, India’s seemingly generous maternity law benefits merely 1% of its women, QUARTZ MEMBERSHIP, (Sep. 25, 2019), https://qz.com/india/1715618/indias-maternity-leave-policy-benefits-only-1-percent-working-women/#:~:text=In%202017%2C%20the%20country%20passed,with%20at%least%2010%20employees. [xvii]Id. https://qz.com/india/1715618/indias-maternity-leave-policy-benefits-only-1-percent-working-women/#:~:text=In%202017%2C%20the%20country%20passed,with%20at%20least%2010%20employees.