Maternity leave: Need of an hour
Abstract
Maintaining a work-life balance is crucial, and in light of this, women should receive
sufficient benefits during and after childbirth. This article compares and contrasts the
maternity benefits offered by India, the United Kingdom, and Australia. The study looks at
the origins and evolution of maternity benefit laws in India and the other chosen nations, as
well as the scope, duration, and qualifying requirements of the benefits and their impact on
women's employment, health, and gender equality. Understanding the legal framework for
maternity leave in different countries is vital for employers and employees. It fosters a
workplace support system that values the well-being of women in the corporate field.
Introduction
Pregnancy and giving birth are two of the most significant periods in a woman's life.
Working women need maternity care to safeguard their own and their child's health during
this critical period. Women go through physical, psychological, and emotional changes
throughout childbirth and the postpartum period. It's imperative that new mothers receive the
utmost love and attention at work. What is meant by "maternity leave"? (what is maternity
leave?, 2024)This kind of support is given to expectant mothers both before and after their
pregnancy. It helps women take care of their health, balance work and family obligations, and
get financial support.
To meet the demands of working women, India's maternity leave laws have undergone a
number of changes. This article focuses on India's maternity leave laws, including their
ramifications and disadvantages. With a comparative study of the two nations, this article
also concentrates on the resources available to working women in the USA.
Background
Let’s take a look at landmark cases pertaining to maternity benefits in India.
Pooja Jignesh 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 gave birth to a child,
who was later adopted by the petitioner. 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.
As a result, the question of whether a surrogate mother is entitled to maternity leave has
arisen. Without delving into the merits of the case, the High Court relied on the same court’s
decision in Dr. Mrs. Hema Vijay Menon vs. State of Maharashtra. This case held that even in
case of birth by surrogacy the parents who have lent the ova and sperm would be entitled to
avail leave. Maternity leave is available to the mother, while paternity leave is available to the
father. (N.M.Jamdar, 2019)
Maternity benefit act, 1961
In India, legislation was passed that protects the employed women at the time of her
maternity under the maternity benefit act, 1961. It gives women employees benefit of paid
leave to take care of the child. Every organisation with 10 or more employees is subject to the
act. Under this act, maternity benefits are available to those working women who have
worked in the organisation for at least eighty (80) days. The Maternity Benefit Act, 1961
aims to provide all the facilities to a working woman in a dignified manner, so that she may
overcome the “state of motherhood honourably, peacefully, undeterred by the fear of being
victimised for forced absence during the pre or postnatal period”, as was observed by the
Supreme Court in the case of Municipal Corporation of Delhi v. Female Workers (Muster
Roll) (2000).
The Act permits women working for factories and organizations that have been certified to
take up to six months of paid maternity leave. It is also important to note that these provisions
are applicable to women working in organized sector for example multinational companies,
public saving undertaking, corporate societies etc. women working in unorganized sector like
agriculture or are domestic workers do not have access to these benefits. Female employees
are allowed to take maternity leave before and after giving birth, up to a maximum of six
months. During this leave, the company must give the female employee her entire salary.
(maternity benefit act,1961, 2022)
The Act covers all maternity benefits in the following sections:
Section 4: Employment of, or work of, women prohibited during certain periods.
Section 5: Right to payment of maternity benefits.
Section 7: Payment of Maternity Benefits in case of death of a woman.
Section 8: Payment of Medical Bonus.
Section 9: Leave for miscarriage, etc.
Section 10: Leave for illness arising out of pregnancy, delivery, premature birth of a child,
miscarriage, medical termination of pregnancy or tubectomy operation.
Section 11: Nursing Breaks.
Section 12: Dismissal during absence of pregnancy.
Section 13: No deduction of wages in certain cases.
Section 18: Forfeiture of maternity benefits.
The maternity benefit (amendment) act, 2017
The Maternity Benefit Act of 1961 underwent several changes in 2017, including an
extension of the leave duration, the ability for women to work from home, and leave for
adoptive mothers. Among other amendments, a new clause, Section 5(5), was added to the
Act, under which women who requested maternity leave might benefit from working from
home. According to Section 5(5) of the Act, an employer may authorise nursing mothers to
work from home if the nature of the work that is given to them permits it, under mutually
agreed-upon terms. The provisions of the maternity benefit (amendment) act, 2017 are as
follows:
1. Extended maternity leave: Women working in the organized sector have the right to
26 weeks of paid leave under the Act. This is a prolongation of the previous 12-week
maternity leave.
2. Maternity leave for adopting mothers: Mothers who adopt a child under three
months old are eligible for twelve weeks of leave, starting on the day of adoption.
3. Option to work from home: Employers are required to give pregnant women the
choice to work from home, contingent on the nature of the job and mutual consent
between the parties.
4. Facilities for crèches: Employers with at least 50 workers are required to provide
crèche facilities for working moms.
5. Illness following pregnancy: women employees who experience a serious illness
following pregnancy are entitled to one month of absence.
Other legislations
Other Indian laws that offer maternity benefits to women in various areas exist in addition to
the Maternity Benefit Act, 1961 and its revision in 2017.The following are a few laws in
India that deal with maternity benefits:
Factories Act of 1948: Under this regulation, factories must provide maternity benefits to
female workers. According to the Act, women are entitled to six weeks of maternity leave; on
the suggestion of a doctor, this duration may be increased to twelve weeks.
Mines Maternity Benefit Act, 1941: This legislation offers maternity benefits to women
employed in mining operations. Women are entitled to six weeks of maternity leave under the
Act, and on the recommendation of a medical professional, this period may be extended to
twelve weeks.
Public Sector Undertakings (PSUs): A number of PSUs have their own rules and policies
regarding employee maternity benefits. For instance, female employees of Indian Oil
Corporation Limited (IOCL) are entitled to 180 days of paid maternity leave.
1948's Employees' State Insurance (ESI) Act: Workers in factories and other
establishments covered by the ESI Act of 1948 are entitled to social security benefits.
Women are entitled to 26 weeks of paid maternity leave under the Act.
Civil Services Rules: Female employees of the Central Government and All India Services
are entitled to maternity leave under the Central Civil Services (Leave) Rules, 1972, and the
All-India Services (Leave) Rules, 1955. Women are guaranteed 180 days of paid maternity
leave under the regulations. (Santhiya K, 2023)
Need for Special provisions for same-sex couples under maternity benefit act
Supporting transgender persons at work is essential if we want them to do their jobs as
effectively as possible. The inclusion of a clause in the Maternity Benefit Act that would
award maternity benefits to transgender individuals would be beneficial, as they are a
particularly vulnerable group in society and were granted special protection in the National
Legal Services Authority v. Union of India case.
Given that the Supreme Court has emphasized the necessity for legal protection of
transgender people in employment, healthcare, education, state action, and other sectors, the
ILO has also proposed a model of social insurance to ensure maternity benefits to workers in
a workplace. This method is included in the 1948 Employee State Insurance Act; however it
is limited to certain types of businesses. If this strategy is adopted and widely recognized in
maternity benefits, it will prevent workers from treating individuals unfairly because of their
sexual orientation when they are hidden. In conclusion, since parenthood is a right that is not
limited to women, the maternity benefit laws must be interpreted in accordance with the
Indian Constitution, ILO Convention 111, and international human rights standards.
(mukherjee, 2020)
Maternity benefits provided by Indian government
Pradhan Mantri Matru Vandana Yojana: The Government of India introduced this
scheme (PMMVY) as its primary maternity benefits program in 2017. It was formerly called
as the Ministry of Women and Child Development's Indira Gandhi Matritva Sahyog Yojana.
The program is meant for women over the age of 19 who are pregnant or nursing in relation
to the first live birth. The program provides a portion of lost income both during and after
childbirth. Additionally, it aims to inform on the National Food Security Act of 2013 and
how a mother and kid can cope with good care.
Janani Suraksha Yojana: The safe motherhood intervention known as JSY is carried out by
the National Rural Health Mission (NHM). It aims to reduce the death rate of both mothers
and babies by encouraging institutional delivery for expectant mothers. It was introduced in
April 2005, altering the National Maternity Benefit Scheme (NMBS). Funding is provided by
the NMBS in the amount of Rs.500 rupees per birth, up to a maximum of two live births, to
women who are 19 years of age or older who are expecting and come from low-income
households . (maternity benefit act,1961, 2022)
Maternity benefits in China:
According to the People's Republic of China labor Law Act of 1995, which was created and
put into effect to protect pregnant women, Chinese citizens are entitled to 90 days of leave
following the birth of their kid. Actually, different programs are available for female
employees in different Chinese cities.
The lady is entitled to fifteen days of leave to rest if she had a spontaneous abortion within
the first four months of her pregnancy. If the pregnancy end after the first four months, she is
eligible for 42 days of paid leave. Certain perks may be granted by mutual consent between
the employer and the worker. Depending on the nature and circumstances of her work, she
may request lactation leave from her employer in the event that her pregnancy becomes
problematic.
Maternity benefits in Australia:
In Australia, a pregnant woman may take up to eighteen weeks of paid leave to care for both
herself and her unborn child. Some the criteria needed to be eligible for maternity leave are:
Both expectant mothers and mothers of adopted children are eligible to apply. Based on the
previous fiscal year, her personal income ought to be less than $150,000.
Following her application for leave, she is prohibited from working during her pregnancy.
She needs to be an Australian citizen, be a permanent special category resident, and A visa is
required. She can receive maternity benefits if the baby is stillborn or dies soon, but she
cannot claim them if she is a recent immigrant or new resident to Australia until two years
have passed since she established there, subject to certain exceptions.
Comparison
The extent and coverage of these benefits differ significantly throughout China's, India's, and
Australia's maternal benefit systems. Given that they improve gender equity, support
women's employment, and advance the well-being of mothers and their offspring, maternity
benefits are a crucial part of social government assistance programs. Maternity benefits
should be given top priority by policymakers, who should also make sure that all women,
regardless of income level, may access them.
India offers perks and leave that are 27–47 times greater than those of other nations.
Working women in Australia receive 18 weeks of paid maternity leave in addition to certain
perks. China offers a maternity leave of 98 days. India has been providing 26 weeks of paid
maternity leave, with compensation determined by eligibility and basic pay.
Extra benefits include the ability to work from home, the chance to breastfeed while working,
higher compensation throughout the maternity leave period, and extra leave in the event that
twins are born. Under the terms of the mutual agreement between the employer and the
employee, all of these benefits are available. If the management fails to provide maternity
leave and perks, there is only one opportunity to file a complaint. Ultimately, the purpose of
benefits and maternity leave is to ease the stress and promote comfort and positivity for
working women during their pregnancies. It's an effort to provide both personal and
professional assistance for female employees. (maternity benefit act,1961, 2022)Conclusion
An analysis of the literature that is now being published shows that while India's maternity
benefit policies are less generous than those of some high-income nations, they are
nevertheless more generous than those of some low- and middle-income countries. There is
still more to be done in this area, even though India was among the first nations to enact laws
providing maternity benefits. With the exception of the US, India has lagged considerably
behind the developed world's nations. This is further supported by the fact that fewer women
are in the workforce. Moreover, it was shown that women with longer maternity leaves had
higher postpartum employment rates. The study emphasizes the role that maternity benefits
play in advancing women's employment opportunities and gender parity. Despite significant
progress in passing rules to support women during pregnancy and childbirth, gaps remain in
the coverage, particularly for women working in the unorganized sector. Therefore, there is a
need to significantly improve and expand maternity benefits in India in order to better support
women and promote gender equality in the workforce.
Suggestions
One potential avenue for future research would be to employ a qualitative approach to
investigate the efficacy of maternity benefit policies in India. This can entail holding focus
groups or interviews with women who have recently taken maternity leave to learn more
about their experiences with the policy, as well as with employers to get information about
how the policy is being implemented and enforced. Such studies could offer a more
comprehensive knowledge of the obstacles to taking maternity leave and the variables
influencing the effectiveness of India's maternity benefits laws.
Additionally, studies might be done on the possible impacts of novel strategies on mother and
child health outcomes as well as women's labor force participation rates, such as cooperative
parental leave and flexible work schedules. Overall, more study on India's maternity benefits
laws may help identify the variables affecting its efficacy and may also provide guidance for
future legislative creation and execution.
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