India’s new maternity benefit Law: Progressive but partial cover?

Women working in the organised sector in India will now be entitled to paid maternity leave of 26 weeks, up from 12 weeks, as Indian Parliament passed a new law on 10th March 2017 that will benefit about 1.8 million women. The new enactment may ensure better maternal care and will encourage more women to join the workforce in organised sector. Giving some benefits to adoptive mothers and women who get children using embryo transfers is a step in tune with social changes but the law failed to ensure gender parity by neglecting the role of fathers in parental responsibilities.

Maternity benefit leave is an employee benefit available in almost all countries. Often, the minimum benefits and eligibility requirements are mandated by law. Among 186 countries examined by International Labor Organisation, 96% offered some pay to mothers during leave, but only 81 of those countries offered the same for fathers. The United States and Suriname, while they do mandate unpaid parental leave, are the only other countries that do not require employers to provide paid time off for new parents.

The amendment brought India to the third position on the list of countries with most maternity leave, after Canada and Norway where it is 50 weeks and 44 weeks respectively. The new legal provision is an amendment to the Maternity Benefit Act, 1961, which protects the employment of women and entitles her to full-paid absence from work to take care of her child.

Here are the important takeaways from this landmark law:

  • Women working in the organised sector will now be entitled to paid maternity leave of 26 weeks, up from 12 weeks. Out of this 26 weeks, 8 weeks shall precede the date of her expected delivery.
  • The entitlement will be for only up to first two children. If the employee has two or more children, she is eligible only for 12 weeks and out of this 12 weeks, 6 weeks shall precede the date of her expected delivery.
  • Mothers who adopts a child below the age of three months and mothers who opt for a child through surrogacy (who uses her egg to have a surrogate child, the biological mother) are eligible for 12 weeks of leave. The 12-week period will be calculated from the date the child is handed over to adopting/biological mother.
  • The amended law also provides for an option for work from home, after completion of the maternity leave. If the nature of work permits she may work from home, for such additional period and on such conditions as the employer and the woman may mutually agree.
  • It also makes it mandatory for every establishment with more than 50 employees to provide creche facilities. The woman will be allowed four visits to the creche in a day. This will include her interval for rest.

Gender parity?

Since the amended law raise the period of maternity leave to 26 weeks from the present 12 weeks, it may act as a deterrent for the private sector to employ women workforce. It may lead to arguments on comparative costs of hiring women versus men. There should be legal provisions that should ensure no discrimination against women in recruitment by employers who currently have to factor these additional benefits. Beneficiaries covered by this law must be protected from discrimination through clear provisions. I also feel, the new law failed to achieve gender parity by giving appropriate benefits to males. The legislators completely neglected the role of fathers by implying all parental responsibilities on women. The government should also consider extending similar benefits to single fathers who adopt a child.

What about the women in the unorganised sector?

A vast majority of India’s labour force is in unorganised sector. Indian economy is to a great extent characterised by millions of people working in unorganised sectors as unorganised workers; transitional nature of the economy, disparity in education, skill and training are some of the major factors abetting such a large concentration of workers in an area most vulnerable to economic vicissitudes in India. Work in unorganised sector includes home-based employments, self-employment, street vendors, employment in household enterprises, small units, on land as agricultural workers, labour on construction sites, domestic work, and many other forms of casual or temporary employment.

The only available benefit for such women is a meagre and conditional ₹ 6000 during pregnancy and lactation offered under Maternity Benefit Program. It is sad to see there are also plans to restrict this only to the first child citing budgetary reasons. Providing complete welfare benefits to deserving women and children is a social and state responsibility which can be funded through general taxation and contributory payments from those who have the means.

[Posted on 12th March 2017]