Revisting the Maternity Benefit Act: Are Mothers the Sole Caregivers?

Introduction

It is 9th March, 2017, and the long-standing The Maternity Benefit Act, 1961[1] has been amended to improve the position of women in the labor force and workforce in general. But is that truly the case?

The amended act laid down several provisions, for example, under Section 5[2] Under the act, paid maternity leave was increased from 12 weeks to 26 weeks. Furthermore, women had the option to work from home after necessary consultations with their employer. When this act was initially brought in, it was praised for being progressive towards improving the status of women, but when we put this under a microscope to examine it, we find certain key words that require tweaking.

Although the act formulated is commendable and is one of the first steps in recognizing the rights of women, and more so, the importance of mothers. It, however, made little progress in bringing gender parity in the workplace. In the corporate world, the act has instead become a deterrent for women.

Evaluation of the relevant legal provisions

While reviewing the provisions of the amendment, it puts across the view of the government while enacting the provisions, but analyzing it deeper shows that the implications of the act might not be as easy as it should have been. This act was brought for the positive development of the country, but the effects are debatable.

The Section 5[3] of the act has extended the length of paid maternity leave offered by the government from 12 to 26 weeks, with no more than eight weeks allowed to pass before the anticipated delivery date. A bare reading of this section appears to be beneficial for the women, but its long-term effects state otherwise. Moreover, even though the government made these changes to the bill, they gave the firms full financial responsibility for these advantages.

Nearly 50% of SMEs and start-ups in India reported fewer female recruits over the year, according to a different LocalCircles[4] poll. One of the main reasons for this decline in employing female employees was the maternity cost.[5] Since the entire cost was put on the company, this increased their burden and, as a result, led to a decline in women’s participation in the workforce with no fault of their own.

Furthermore, according to Section 5[6] under the act, maternity leave for women with three or more children is twelve weeks long, and it can only be taken up to six weeks before the anticipated birth date. This amendment is discriminatory to its core, restricting the maternity leave for women with more than one child. From a lawmaker’s perspective, it shouldn’t matter if a woman has 1 or 3 children since each child brought into this world requires equal care for the overall development of the children. It should also be noted here that most of the time, women do not intend to leave their children under the supervision of the caretakers just after the birth of the child because of emotional attachment, and this specific provision only makes it more difficult for women to return to work.

Additional concerns under the Maternity Benefit Act, 1961

The Act also raises ancillary legal challenges that might not seem problematic on a simple read, but are arbitrary and likely to affect every single aspect of both the maternal and professional life of a woman. Let’s discuss that in detail:-

Leave for adopting and commissioning mothers

The provision of leave for adopting mothers and commissioning mothers was for the first time referenced in the 2016 amendment[7]. According to the amendment, adopting mothers are entitled to 12 weeks’ leave if they adopt a child under 3 months of age. A biological mother who utilizes her egg to conceive a surrogate child is known as a commissioning mother. The day the child is given to the adoptive or commissioning mother will be used to determine the 12-week maternity leave duration. This provision of the act is not just discriminatory towards the mother, but also towards the child.

First of all, it forbids maternity leave in case the adoptive or commissioned child is older than 3 months. Moreover, adopting a kid younger than three months old is nearly impossible for a mother due to the current adoption procedure delays. Secondly, the provision blatantly states that these mothers would only be entitled to 12 weeks’ leave. This provision fails to consider the relationship of a mother with a child and further, also demoralizes other ways by which two people can become parents.

Unorganized Sector

The Maternity Benefit Act, 1961, does apply to the unorganized sector of the Indian economy, i.e., the labour-intensive operations. However, the guidelines and the implementation of the same lacks. The unorganized sector is an unregistered small-scale operation unit with no formal guidelines and/or contracts. In such cases, it would not be wrong to assume that women working in such facilities get maternity leave, inclusive of the benefits as per the act.

Furthermore, in such sectors, it is difficult for women to obtain leave because most of them belong to a poor background with no financial support, and the people operating these sectors are not altruistic enough to allow paid leave. It could also happen that the women themselves are unaware of the rules and regulations brought in by the government and thereby fail to avail the benefit of it.

Creche facility

Another issue that has to be resolved is the cost of the childcare facility. A useful interpretation of the law leads to this result even if it does not expressly say that the employer is responsible for paying for the facility. Despite lacking legislative authorization, the Ministry of Labour and Employment indicated in a Right to Information (RTI) response that the legislation’s objective was to guarantee that employers pay for the childcare facility.

Therefore, the employer bears the financial burden of early childhood care. In the Netherlands, new parents can choose between a safe, standardized public creche for children up to age seven and a prenatal care package that includes basic newborn necessities. In contrast, the rules pertaining to creches in India lack clarity and are not the domain of the government. India should construct public childcare facilities to help working pregnant women continue their careers and financial independence, following the Dutch example.[8]

The Biggest Conundrum: Paternity Leave

The biggest concern that the act raises is the full responsibility of child care on the mothers. The Maternity Benefit Act is predicated on the idea that mothers bear full responsibility for all aspects of childrearing, including parenting and caring for others. Therefore, the father receives a minimum of two days and a maximum of two weeks of paid leave, while the mother receives 26 weeks.

The father can return to work right away, whereas the woman must put her career on hold for six months in order to care for the infant. As a matter of fact, according to a poll[9]14% of Indian businesses, encompassing both major corporations and start-ups, lack any kind of paternity leave policy. Only 31% of SMEs and start-ups, according to the poll, give paternity leave, compared to 57% of large businesses that offer leave lasting two weeks or more.

When the women do return to work, they encounter a dearth of understanding and assistance, as well as missed chances and promotions. The women begin to notice salary disparities that cause them to fall so far behind that recovery appears unachievable, as their male colleagues race ahead.[10]

This paternity leave is necessary to create gender parity and neutrality in the workplace. It puts everyone on the same pedestal and boosts productivity. It is not just the job of a woman to take care of a child; it goes both ways.

When we take a look at the lack of paternity leave offered from the viewpoint of a child, it is necessary to note that a child requires their fathers as much as their mothers. In the initial months, the father of the child also needs to establish an emotional connection with the child, which is often discouraged. According to a study published by the industrialized countries’ think tank, the Organisation for Economic Co-operation and Development, children who have “more involved” dads had better early outcomes. Such engagement is facilitated by flexible work arrangements and paternity leave.[11]

Therefore, when no paid paternity leave is offered, it is not just bringing in the stigma that mothers are the sole caretakers, but also hindering the mental growth of the child.

Conclusion: Way Forward

Even though India was one of the first countries to pass legislation granting maternity benefits, more work has to be done in this area. India has fallen far short of the industrialized nations of the globe. The decrease in the proportion of women in the labour force serves as more evidence for this reality. Some recommendations which can be implemented are as follows:-

• Encourage companies to recruit More Women: Provide tax breaks or women-focused initiatives to encourage companies to recruit more women. Moreover, the burden on these companies should also be reduced to cover the expenses of maternity leave.
• Inspiration from other countries: A World Bank research from 2016 titled Women, Business, and the Law states that paternity leave is offered in almost 80 nations, including Sweden, Finland, and Iceland. In Nordic nations, salaries during this time are usually partially supported by the government. Afghanistan, China, Hong Kong, and Singapore are among the nations that border India and offer a few days of paternity leave.[12] The provisions from these countries can be adopted and implemented as suited.
• Social security schemes: Various schemes can be brought in by the government to ensure that soon-to-be parents can invest their money through insurance for maternity care. Such kind of schemes can also be brought in various companies where either the parent or the government can contribute to the maternity insurance.
• Gender-neutral paternity leave: In the twenty-first century, gender parity in paid leave is imperative since it will undoubtedly contribute to closing the gender gap in the labour force. It is also necessary to avoid females from lagging behind their male counterparts owing to longer absences for domestic and maternity obligations.
• Change of mindset: Some changes come from home and not from the implementation of law of any law. If people assume only mothers to be primary parents, any kind of law is of no use. If people think that after having kids, women should stop taking leadership roles or stop working in general, then our country can never progress.
  
  

1. The Maternity Benefit Act, 2017
2. Id.
3. Id at 1
4. International Women’s Day 2020: 49% startups and SMEs want the 6 months of paid maternity threshold to be lowered; many propose 3 months as a viable option, LOCAL CIRCLES (March 06, 2020), https://www.localcircles.com/a/press/page/international-womens-day-2020
5. Mugdha Karla, Dear Inc. India, Despite Maternity Benefits, Why are women not returning to work?, NDTV Profit, January 27, 2023
6. Id at 1
7. The Maternity Benefit Act, 2016
8. Madhurima Mukherjee, Critical Analysis of the Maternity Benefit in India under the Social Security Code, 2020, Legal Service India, https://www.legalserviceindia.com/legal/article-11739-critical-analysis-of-maternity-benefits-in-india-under-the-social-security-code-2020.html
9. supra note 5, at 1
10. supra note 5, at 1
11. Neeta Lal, The New Maternity Benefit Act disregards women in the Unorganized Sector, The Wire, August 21, 2016
12. supra note 11, at 3

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