Reading Between the Lines: Maternity Benefit Law in India and Whom It Truly Benefits

Abstract

The gendered and performative role of motherhood, an ideal of patriarchy, has been codified into the letter of the law. A feminist lens has been applied to understand how motherhood and patriarchy interact within the maternity benefit law in India, which is primarily regulated by the Maternity Benefit Act, 1961, as amended in 2017. An attempt is made to determine whether the extant law truly benefits all women equally without discrimination. It is critically examined, using an intersectional approach, to ascertain whether it ensures the welfare of all women or is yet another systemic attempt to further the patriarchy. The progress of the law is evaluated and corporate maternity benefit policies in India are analysed to assess whether the law requires revisions and of what type to achieve its true objective.

Keywords

Maternity corporate policies intersectionality public-private dichotomy welfare

Introduction

The idealisation of motherhood by a patriarchal Indian society serves twin objectives—the disempowerment of women and the reversal of such disempowerment (Lihach, 2015). The naturalisation of maternal responsibilities has linked women’s femininity and value to their motherhood. This exalted status then forms the basis for their confinement to the private sphere, which therefore becomes feminised.

Motherhood is the most apparent symbolic difference between the male and female sexes as well as notions of typical femininity and masculinity (Wiedenbeck, 2015), with positional power dynamics. As women’s movements progressed over the decades, one defining feminist objective was to problematise the romanticising of motherhood by forcefully penetrating the masculinised public sphere. With more women entering the workforce, questions around ‘work of care’ and ‘care ethics’ arose. Yet their movement within and into the public sphere continues to be discouraged; consider, for instance, the resistance to infrastructural incorporations of breastfeeding rooms or crèche facilities. There is a patriarchal insistence on the separation of the woman into different spaces: the mother stays at home, the employed woman shirks her maternal duties. Indeed, there is a sense of incredulous outrage over feminist protests—how much special treatment do these feminists want? But of course, the patriarchy itself is built on differential treatment.

The Maternity Benefit Act, 1961, ensuring monetary remuneration to a woman during absentia caused by pregnancy and childbirth, has enjoyed the protection of long-awaited progressivism. Despite revision in the Maternity Benefit (Amendment) Act of 2017, many feminists feel that the law leaves a lot to be desired. Does the Indian maternity benefit law actually empower women and, crucially, which women? This article seeks to answer this question by analysing the law through an intersectional approach, in the context of its legislative construction, interaction with other allied statutes, and its final application in society.

The Public–Private Dichotomisation of Motherhood

Women have been taught since time immemorial that their role in life is to seek fulfilment as wives and mothers (Friedan, 1963). In India, this can be traced back to the Vedic ages when it was commonly understood that, as inscribed in the Manusmriti, the mother is a thousand times more venerable than the father (Jha, 1920). Scriptures have dually served as justification and condemnation of the conditions of the Indian mother. The stance of pre-Independence scholars is best illustrated by Altekar’s (1959) views on social institutions, as per which women’s status declined after the idyllic Vedic period. Post-independence works are similarly myopic in their tendency towards a complete disavowal of ancient systems as enabling agencies (Chakravarti & Roy, 1988). Thus, the question of the woman has been obscured by her relationally defined body—as a daughter, wife, mother, mother-in-law and grandmother. When there is uncertainty over the definition of womanhood, one relation is necessarily prioritised over all others. This patriarchal idealisation of motherhood imposes a weight on women (Vagmita, 2019), the magnitude of which is still not adequately quantified. Thus, over time, motherhood has moved from the biological to the realm of the cultural construct (Wiedenbeck, 2015).

While men occupy the public sphere of paid work, politics, and culture, women are confined to the private sphere of home, family, and reproduction due to their ability to bear children (Finley, 1986). The public is valued over the private as it provides ornamentation to society, social sanction being acquired through public demonstrations such as mourning and monument-building. The workplace system reflects the patriarchal public-private division in its form and function. Jobs are, therefore, designed for public bodies that can, among other things, commit full-time to their employer and travel without fear of harassment. Moreover, patriarchy restricts the woman to a private space, with responsibilities related to the home, family, and childcare (Carbado, 1998).

Within Indian law, the public-private divide is so construed that state interference in the private sphere is considered undesirable and ‘inappropriate’. It was only a decade after Independence that the Maternity Benefit Act, 1961, was enacted in an attempt to regulate the private sphere. This attempt underlines how the law viewed regulation regarding pregnancy and maternity in the workplace as the accommodation of a woman and her biological duties (Kattwinkel, 1992). The current law on maternity benefits, as amended in 2017, may be assessed on its capacity to recognise, reduce, and redistribute the burden of the woman (Das, 2016). Unfortunately, the law attempts this only superficially. To name one failing, the lack of paid paternity leave prevents the dismantling of the patriarchal public-private dichotomy and gendered division of labour through distributing the burden of care work (Baker, 1997; Uma & Kamath, 2020).

The deliberate exclusion of men from the ambit of the law reaffirms the naturalisation of maternal responsibilities. It recognises the value of unpaid care work in a limited sense, as it does nothing to change attitudes towards the child-rearing responsibilities of working women (Kattwinkel, 1992). In fact, this kind of contemporaneous preservation of employment of pregnant and new mothers with no paid paternity leave reaffirms social and cultural expectations of women—they are expected to balance parenting responsibilities and work commitments effortlessly. The harm created by such societal standards is exacerbated in the case of single mothers and mothers who are completely dependent on their single income. In such cases, the burden of care often passes to the grandmother or mother-in-law, retaining its feminised nature.

Maternity Benefits in India

Notions of social security in India formed slowly under British colonial rule (Adyanthaya, 1954). This sluggishness is largely attributable to the significant changes wrought by the British in realising colonialism’s objectives and the push for industrialisation, for which the culmination of World War I served as a catalyst. India’s labour set-up underwent a drastic change from 1918 to 1939, as its self-sufficient economy crumbled, resulting in massive imports of consumer products and rendering several artisan and agricultural professions obsolete. Consequently, landless labourers were forced to migrate to towns and urban spaces in search of employment. Unfortunately, jobs in factories presented a problem: long hours with little pay. It was difficult to sustain whole families on a single man’s income. Women and children were pushed into the labour market, and factories witnessed an influx of easily exploitable workers. Thus, reform in the labour sector became an urgent necessity.

Prior to this, the Factories Act (1881, 1884, 1911) was the only source of legislation regulating working conditions in factories. The demand for welfare policies for the newly formed labour class rose to fill the lacuna in the existing legislation, which dealt exclusively with conditions of work in factories rather than with provisions for social security and related benefits. The Indian set-up was far behind the standards established by the International Labour Organisation (ILO). These apparent deficiencies incentivised public authorities to pay due attention to labour regulation. The inchoate social-security system took stabs at creating provisions for ‘social contingencies’ (Agarwala, 1946), which tended to take the form of non-uniform measures aimed at reducing social risk, with the competent authorities regarding social contingencies as provided for by social insurance (Agarwala, 1946). The focus of this article is necessarily restricted to measures related to the social contingencies that result from women’s entry into the public sphere of factories, namely, maternity.

Provincial Maternity Benefit Act, 1921

In 1919, the ILO adopted the Maternity Protection Convention (1919) which, among other provisions, entitled women to six weeks of paid leave, benefits to preserve her health and her child’s, access to a doctor or qualified midwife and, upon return to work, an allowance of 30 minutes twice a day to nurse her child if needed. India did not ratify this Convention on the grounds of unpreparedness for such legislation. This was the first of many rejections for advocates of maternity benefits.

In 1922, Kanji Dwarkadas introduced a maternity benefits resolution in the Bombay Legislative Council (BLC), which was rejected because ‘such legislation could only be passed at the central level’ (Dwarkadas, 1962/2007). In early 1924, S. K. Bole introduced a maternity benefits resolution before the BLC once more, but it was rejected due to its prematurity. It was suggested that voluntary schemes be created instead. Later, N. M. Joshi introduced a Bill before the Central Legislative Council that proposed prohibiting the employment of women for six weeks before and after childbirth. This Bill was referred to a Select Committee in 1925, but was shot down by the Central Legislature in 1926 owing to several reasons, including, but not limited to, ‘the deviousness of women workers who would take leave and work elsewhere during that period’ (Central Legislative Assembly Debates, 1925). Ultimately, the Bill was taken up in the Provincial Legislative Councils with the Presidency of Bombay being the first to pass it in 1929, after much debate around the role of this legislation as a protectionist measure for victims of exploitation rather than as the right of working women (Maternity Benefit Act, 1929).

The Maternity Benefit Act of 1929 was adopted by the Central Provinces in 1930, and the Royal Commission on Labour noted that ‘the time is ripe for the introduction of legislation throughout India making a maternity benefit scheme compulsory in respect of women permanently employed in industrial establishments on full-time processes’ (Royal Commission on Labour in India, 1931). The Bombay model was not nation-wide legislation, and was accepted by certain other provinces only by the end of 1939 (Agarwala, 1946). The limitations of the law were evident in the ‘continuous service’ clause, mandating continuous service devoid of any breaks for eligibility to maternity benefits, as well as payment of benefits post-childbirth, which meant that women could not use the benefits in the critical stages prior to childbirth.

Central Maternity Benefit Act, 1961

The second perceived victory for working women came in 1961, when all the provincial legislations were consolidated to form the Central Maternity Benefit Act, 1961, which prohibited employers from terminating a female worker’s service on the grounds of pregnancy, and entitled women to maternity leave. The Supreme Court observed that under the Central Act, women workers were vulnerable to arbitrary termination of employment due to pregnancy. It held that a ‘just social order can be achieved only when inequalities are obliterated’ and ‘women who constitute almost half the segment of our society have to be honoured and treated with dignity at places where they work’. It further held that at such places of work, employers must realise the physical difficulties of a pregnant woman in performing her professional duties (Municipal Corporation of Delhi v. Female Workers [Muster Roll], AIR 2000 SC 1274). The Central Act also provided for facilities beyond monetary remuneration, such as nursing breaks, which were primarily aimed at enabling working women to overcome the obstacles of motherhood. In essence, the law was coloured by a protectionist lens aimed at empowering women to ‘overcome the state of motherhood honourably, peaceably, undeterred by the fear of being victimised for forced absence during the pre- or post-natal period’ (Dadwal & Chauhan, 2018).

Current Status of the Law

The provisions of the Maternity Benefit Act, 1961, are still in force today, as amended by the Maternity Benefit (Amendment) Act of 2017. The Maternity Benefit Act, 1961 (hereinafter referred to as the Act) is applicable to all women employed in factories, mines, shops and establishments that employ 10 persons or more, and establishments where persons are employed for the exhibition of equestrian, acrobatic and other performances. It does not cover under its ambit employees provided for under the Employees State Insurance Act, 1948, although state governments are empowered to extend it to other establishments.

The Act, as previously amended in 1988 (Maternity Benefit Amendment Act, 1988), awards women 12 weeks of paid maternity leave at the rate of the average daily wage. It simultaneously prohibits an employer from directing a woman to work for up to six weeks after delivery, while also entitling the woman to the payment of maternity benefits for the period of her actual absence immediately preceding and including the day of her delivery and for six weeks following that day, provided she was employed for wages for a minimum of 80 days in the 12 months preceding the date of her expected delivery. ‘Wages’ include cash allowances, payment in kind as well as incentive bonuses. ‘Delivery’ includes the birth of a healthy child, a stillborn child, miscarriage, and the medical termination of a pregnancy. In the latter two cases, 12 weeks’ leave is available, and in the case of a tubectomy, two weeks’ leave is allowed. Should an illness arise from the listed cases, there is a provision for a month’s paid leave. A woman may request to not be assigned strenuous work that could adversely affect her health or her child’s in the one-month period before delivery, or during the six-week period of maternity benefits, if not availed.

The maximum of 12 weeks of maternity benefits is to be divided on the basis of pre- and post-natal periods, with the ideal division being half and half. However, up to eight weeks of leave can be availed of before delivery. If the woman dies during this period, leaving no child behind, the maternity benefits period ends on the date of her death. If she is survived by the child she was carrying, then maternity benefits are extended to the entire period unless the child also dies, in which case they end on the date of the child’s death. In all scenarios, the maximum period is limited to 12 weeks. Maternity benefit payment is to be made upon notice provided to the employer, which should be before six weeks prior to the child’s birth, and within 48 hours after delivery for the six weeks after. However, if such notice is not provided, the woman will not lose her entitlement to maternity benefits. All employers, in accordance with the provisions of the Act, are liable to be imprisoned from 3 to 12 months and fined ₹2,000–5,000 if they fail to provide maternity benefits or, importantly, dismiss the mother because of her pregnancy or her absence from work due to pregnancy. Further, an employer is punishable with imprisonment of up to one year or a fine of up to ₹5,000, or both, for contravention of any of the provisions. A complaint may be filed by an aggrieved woman within a year from the date of an alleged offence.

These provisions regulate monetary benefits linked to regular formal employment in the public sector. Absent from the law’s structure are social benefits, such as the presence of a female doctor for pre- and post-natal care, crèche and nursery systems for the children, and paternity benefit provisions. The inclusion of paternity benefits would have reinforced the notion that childcare is the joint responsibility of both parents. Instead, the law reverts to a patriarchal piecemeal approach, providing only tokenistic encouragement for a fair distribution of child-related responsibilities, but reaffirms maternal burdens through implementable legislation. The Act’s myopia is further highlighted by the implicit belief that it is sufficient to address just the brief periods prior to and post-childbirth, apart from the medical expenses, to meet the demands of parenting. In fact, the only exclusivity to be found here is in the biological toll pregnancy takes on the woman: also to be considered are the emotional burden, increased household responsibilities and expenses, as well as post-childbirth care that the mother needs as she experiences fatigue and pain, restricting her mobility and making her reliant on members other than her working partner for help with the child and the home.

Faith Herndon has noted that

Perhaps the greatest weakness of the Act lies in its extremely limited response to the problem of widespread discrimination that women workers face during and after their pregnancy. It is a common practice among employers to refuse to hire pregnant women, to demote or terminate women if they become pregnant, and to deny them promotions and pay raises. The MBA [Maternity Benefit Act] provides only minimal protection against these practices (cited in Cossman & Kapur, 1993).

At this juncture, it must be noted that there have been several instances under this Act of women successfully contesting illegal dismissal by employers. Over the years, through landmark cases such as Neera Mathur v. Life Insurance Corporation of India (1992 AIR 392) and K. Chandrika v. Indian Red Cross Society and Another (131 [2006] DLT 585) to more recent cases, including Navneet Kumari v. Delhi Council For Child Welfare (CA No. 27/2019) and B. S. Rajeshwari v. State of Karnataka (WP No. 10677 of 2020), decided in 2021, the Act has demonstrated the effectiveness of the prohibition of termination due to pregnancy, which affords a degree of protection to women that was previously absent.

Amendment Act of 2017

Women’s organisations had high hopes for the Amendment Act of 2017 when it was first introduced before the Lok Sabha. These hopes were soon crushed—the Bill barely changed the Principal Act in terms of ideological intent or true benefit. The Amendment’s most significant impact comes from the following single change:

The maternity benefit period has been increased from 12 weeks to 26 weeks, with a maximum period of eight weeks allowed to be utilised prior to the expected date of delivery. However, when a woman has two surviving children, only 12 weeks are available as maternity leave.

Notably, the Madras High Court has held that if a working woman gives birth to a child in her second delivery after twins in the first, she is not entitled to maternity benefits as this child should be treated as her third (Union of India v. Asiya Begum, WA No. 4343 of 2019 and CMP No. 27997 of 2019).

The Amendment also expands the definition of ‘mother’:

Mother is now defined to include commissioning mother of a surrogate child as well as adoptive mother, provided the child is less than three months of age. Such mothers are entitled to 12 weeks of maternity benefit.

Other pertinent changes to the law include:

The option to ‘work from home’ post-completion of maternity benefit leave, provided such an arrangement is mutually agreed upon by the employer and employee.

The provision of crèche facilities, provided there are 50 or more employees. A mother is entitled to visit such a crèche four times per workday.

The mandate that women must be notified of the availability of maternity benefits in writing at the time of appointment.

The problems posed by the Amendment Act (2017) are related to its restricted scope and ignorance of earlier limitations as well as newer ambiguities. For instance, while the Act now provides for a crèche in any establishment with 50 employees or more, it does not specify the sex and gender of the employees; an establishment with a mainly male employee base would still need to provide a crèche. On the other hand, the Factories Act of 1948 mandates the presence of more than 30 female employees for crèche facilities, regardless of the overall strength of the labour force. The provision also fails to offer clarity on whether monetary remuneration for a crèche facility is permissible in lieu of providing the crèche facility within the work premises. Corporations such as Adobe India, Amazon India, and Myntra are examples of companies that have tie-ups with crèche-service companies such as KLAY, providing their employees with a corporate discount. A survey conducted across 70 companies of diverse industries, employee strength and revenue generation found that 81% of the respondents opted for day-care tie-ups of which only 41% limited the distance to under 3 km. Only 10% considered on-site day-care, and 9% were undecided (ProEves, 2017). Whether the crèche facility will be treated as a taxable perquisite or exemption also remains unclear. The survey revealed that 46% of the respondents shared the cost of childcare with the employees, while only 11% bore the entire burden, and 13% passed the entire burden to the employee (ProEves, 2017).

The Centre released the National Minimum Guidelines for Crèches under the Maternity Benefit Act, 2017, but clarified none of the ambiguities (Ministry of Women and Child Development, 2018). Instead, it provided for state governments to make the rules, and thus far, only Karnataka, Maharashtra, Kerala, Haryana, and Chandigarh have acted upon this.

In one sense, the 2017 Act successfully moved past its predecessor (Maternity Benefit Act, 1961) by recognising the role of fathers in parenting. On the other hand, it advocates for a kind of gender neutrality in maternity benefit formulation. Simply put, the objective at hand is to confront the gendered aspects of parenting, not to blindly push forth into a gender-abolitionist or gender-neutral society, ignoring women’s historical and institutional oppression. Moreover, the Act itself is only superficially gender neutral: for instance, the selection criteria released in the guidelines for crèches makes it clear that all employed staff are to be women. Notice that the burden of childcare has simply been shifted from one woman to another; it remains quite firmly ‘a woman’s job’.

The State has also made limited progress in terms of paternity benefits. The Paternity Benefit Bill for parental benefits was introduced by Rajiv Satav before the Lok Sabha in 2017. It sought to provide parental benefits, including paternity leave, to natural and adoptive parents as well as persons acting in loco parentis, employed in both organised and unorganised sectors in public and private labour forces. Three years later, the Bill has yet to see any progress. Satav had optimistically commented that while ‘it may not entirely offset the imbalance, it could act as a precursor to the blurring of gender role distinctions’ (Bhattacharya, 2019); however, it is only the corporate sector that has taken infant steps in this direction.

Asking a Complicated Question: Does the Law Benefit Women?

The ‘Wollstonecraft Dilemma’ refers to the attempt to participate in the public sphere via employment in the formal sector whilst also seeking maternity protection and childcare support, a situation that constitutes a major disadvantage for women (Pateman, 1989). If women are regarded as equal to men, their sex-specific capacities and struggles as women go unrecognised and unaddressed. If women are regarded as different from men, the rights conferred upon them by society and law, or the lack thereof, still disadvantage them (Nash, 2010).

Impact of the Law on Hiring Practices

The Maternity Benefit Act, 2017, understood as an affirmative and protectionist legislation, is unsurprisingly a double-edged sword. A survey conducted in 2018, soon after the Amendment came into effect, among 350 start-ups and small and medium enterprises (SMEs), observed the following:

26% of all respondents expressly admitted to a preference for hiring male candidates.

40% claimed that they would account for the additional cost of paid maternity leave when hiring female employees.

12% could not quantify the impact.

22% declared that the new maternity leave provisions would not impact their hiring decisions in any way (Bhattacharya, 2018).

66% of all respondents disclosed that the maternity benefit law has an adverse impact on the hiring of female candidates.

35% revealed that they see the impact of the Act as negative on both costs and profitability.

The survey reveals that discrimination in hiring practices has increased against women following the increase of maternity leave from 12 weeks to 26. This is compounded by the fact that currently the entire burden of maternity benefits is borne by the employer (Sharma, 2019). To mitigate the consequent reluctance to hire women, the government has proposed to reimburse employers’ costs for up to 14 weeks (Sharma, 2019), seven weeks more than that proposed in 2018 (Ministry of Labour and Employment, 2018). The previous clarification released on this reimbursement scheme had a wage ceiling of ₹15,000, and it is unclear whether this new proposal is subject to the same conditions. Though the scheme to reimburse the employers’ costs for up to 14 weeks may counter the employer’s increased financial liabilities, it remains, like the 2018 scheme, a palliative measure. Interestingly, global corporations in India have distinct paternity benefit policies or overall parental policies, suggesting that profitable capitalist entities are able to provide parental benefits with significantly less strain than smaller start-ups and SMEs. Yet, the results across industries and businesses of varying profits show that the expenditure on maternity and parental benefits is viewed unfavourably. Furthermore, maternity benefit laws and schemes are incapacitated due to the tendency to problem-solve by introducing employment-generating or recompense programmes when the need of the hour is to redistribute work burdens more equitably, and tailor working spaces to suit women.

A 2020 survey (Desikan) based on 8,500 votes from start-ups, SMEs and entrepreneurs confirms that the schemes have failed to address the tendencies in hiring practices that discriminate against women:

33% of the respondents did not hire women at all.

16% hired fewer women than in the previous year.

33% hired the same number of women.

18% hired more women.

With close to 50% of the start-ups and SMEs in India admitting that the law discourages them from hiring women at all, and a further 6% claiming that there should be no maternity benefits at all, the law may be contributing to the decreasing degree of participation of women in the formal sector. In contrast, with the informal sector accounting for increasing participants, the non-application of the law in this sector then presents as a major flaw.

Exclusion of the Informal Sector from the Law

The Act benefits less than 1% of all women (Rajagopalan & Tabarrok, 2019). 70% of Indian women are not employed in the labour force. Of the 30% that are employed, 84% fall under the unorganised sector as they either work for themselves or for establishments with less than 10 employees, which makes them ineligible under law for maternity benefits. Within the organised sector, which accounts for 16% of employed women, close to 58% is informal employment, which does not invite application of the law. According to Rajagopalan and Tabarrok (2019), if 20% of the workers in the organised formal sector are women, then the law only applies to 1.3% of the labour force, amounting to less than 1% of all women.

This leaves a staggering 98.7% of the female workforce that does not fall within the ambit of the law. These women are left without the protection of maternity benefits. This is a prime example of ‘phantom legislation’, which gives the illusion of progress but has little or no desired effect (Allott, 1968). The informal sector is where reform and regulation are most required. Currently, apart from the National Food Security Act, 2013, which stipulates ₹6,000 for pregnant and lactating women, there is only one other legislation that makes any mention of maternity benefits in the unorganised sector. Under the Unorganised Workers’ Social Security Act, 2008, the Centre is empowered to create schemes regarding maternity benefits and, currently, there exist two equally problematic and ineffective schemes, namely the Janani Suraksha Yojana (2005) and the Pradhaan Mantri Matru Vandana Yojana (2017). Under the former scheme, a cash transfer of ₹1,000 is aimed at incentivising institutional delivery. Under the latter scheme, up to ₹5,000 is awarded by direct bank transfer to mothers not covered by any other maternity benefit law for the registration of pregnancy, ante-natal check-ups, registration of births, and the first cycle of vaccination for the first living child. When the schemes are coupled together, a woman is eligible for ₹6,000, provided she meets the eligibility criteria. Such criteria target that segment of the population that has the access and means to comply with the criteria – a segment that does not comprise the most vulnerable women. In effect, ‘good’ mothers are being targeted by these schemes in what is called the ‘socialisation of procreation’ and the biopolitics of population (Foucault, 1978). This phenomenon highlights the composite heterogeneity of women, the presumption of which discriminates against women lacking institutional access due to various socio-economic reasons, including poverty.

The Lack of Intersectionality Within the Law

Today, it is recognised that gender is not binary, that the lack of female reproductive organs does not always imply maleness. As social acceptance and medical technology evolve, motherhood has come to be categorised into three classes: genetic, gestational, and the social mother (Neyer & Bernardi, 2011).

The last two decades have been revolutionary in the field of women’s health, especially within the ambit of Assisted Reproductive Technology (ART). The Amendment Act of 2017 rightly recognises the validity of commissioning and adoptive mothers along with biological mothers, thus legitimising alternative parenting types. Unfortunately, however, the Act recognises only these three identities. Further, the maximum leave offered to commissioning mothers of biological children and adoptive mothers of children aged less than three months old is only 12 weeks. Therefore, the Act makes a return to biologically-rooted binaries of motherhood once again. Additionally, the inclusion of the adoptive or social mother is undermined by the Act’s silence on children who are over three months of age—what eligibility and entitlements are involved here? (Dadwal & Chauhan, 2018).

A commissioning mother is entitled to maternity benefits only if her embryos have been used to conceive the child; that is, if she is the biological mother. Since this process falls under the ambit of surrogacy, it is useful to analyse this provision in light of the law on surrogacy and ART.

In a marked departure from all the previous versions of ART Bills, surrogacy has now been separated from other ART methods governed by the Assisted Reproductive Regulation Bill, 2020. The Surrogacy Regulation Bill, 2020, approved by the Cabinet, seeks to ban commercial surrogacy, and instead allows only altruistic surrogacy by a ‘close relative’ for a legally married couple declared infertile by a district medical board. The requirement of legal marriage effectively excludes single mothers and members of the LGBTQIA+ community from being commissioning parents, thereby impacting their access to maternity benefits. Further, according to the Bill, the wife must be between 23 and 50 years of age and the husband between 26 and 55 years on the day of certification, and have no biological or adopted child of their own, thus restricting the maternity benefits of a commissioning mother to one child, with no prior surviving children, instead of the usual two-child allowance.

In the Report of the Select Committee on Surrogacy (Regulation) Bill, 2019 (2020), the Department stated that maternity benefits could be extended to the surrogate, echoing the decision of the Delhi High Court in 2014 (Rama Pandey v. Union of India, WP(C) No. 844/2014). There is also a provision for extended leave benefits to the surrogate mother to ensure her continued service and also cover loss of wages. However, under the Bill, the surrogate must be aged between 25 and 35 years at the time of implantation, married and with a child of her own. She may offer her services only once in her lifetime, with the consent of her husband. If the surrogate has a single surviving child, under the Maternity Benefit Act, she is entitled to 26 weeks of leave, but if she has two surviving children, she is entitled to only 12 weeks of leave. By requiring a surrogate to be married with at least one child of her own, the Bill restricts the scope of maternity benefits as well as surrogacy. The Bill also prohibits all monetary exchanges except for medical expenses and insurance coverage for the surrogate mother.

An adoptive mother is only entitled to 12 weeks of maternity benefits, provided her adopted child is younger than three months of age. This creates an artificial distinction between an adopted child and a biological child by implying that an adopted child above the age of three months does not require a period for adjustment and bonding with new adoptive parents. It also ignores the idea that an adoptive mother would need to reinforce the emotional and physical security of her newly adopted child, regardless of age. It simultaneously propounds the patriarchal notion that a mother’s care is required for an infant but not for a toddler, child, or adolescent. Thus, not only is the public policy of encouraging adoption of older children threatened, but non-biological mothers are denied the same status as biological mothers.

This differentiation in types of motherhood ignores the changing dimensions of motherhood and also discriminates against trans* women.

Maternity Benefit Policies in the Corporate World

Since the Maternity Benefit Act is applicable to employers in the public sector, the private corporate sector has been left largely unregulated in this sphere, except for the prohibition of termination of pregnant employees due to their pregnancy. Hence, organisations have formulated their own policies on maternity benefits, and it is important to examine such policies to evaluate whether they reflect the law, disregard the law, require regulation by law, or whether the law can instead be informed by such policies.

Listed below are maternity benefit policies of 10 global corporations in India:

Accenture

22 weeks of maternity leave for full-time and part-time employees; four weeks’ leave for illness arising out of pregnancy; one week of paternity leave.

Eight weeks of leave for adoption to primary caregivers.

Discounted childcare services and flexible work arrangements.

Pre- and post-maternity counselling sessions (Accenture, 2015).

Adobe India

26 weeks of maternity leave for all permanent employees, even with two or more surviving children; six weeks’ leave for miscarriage; one month’s leave for illness arising from pregnancy; eight weeks of paternity leave. 60 days’ notice must be provided for maternity and paternity leave.

Tie-ups with crèche facility services; provision for corporate discounts for the same (Adobe, 2020).

Amazon India

26 weeks of maternity leave for birth mothers; 12 weeks of leave for adpotive mothers; six weeks of paternity leave. Six weeks of parental leave available to be shared with spouses/partners, if they are ineligible for parental leave from their own employers.

Eight weeks of flexible work for birth parents (Amazon, n.d.).

Dr Reddy’s

26 weeks of maternity leave for birth and commissioning mothers, of which eight weeks can be taken before delivery. In cases of miscarriage, employees can take six weeks of leave immediately after, and one additional month for illnesses arising from pregnancy, delivery, premature birth of the child, or miscarriage.

New mothers and single parents may take upto two ‘off hours’ every day for a year from the date of birth, depending on need.

Crèche facilities available (Dr Reddy’s, n.d.).

Flipkart

Six months of maternity leave, and 15 days of paternity leave, to be taken either before or after delivery, as well as a maternity claim of up to ₹65,000 for normal delivery and ₹80,000 for C-Section to both parents.

Monetary travel reimbursement of up to ₹600 per day for two months after maternity leave expires.

Discounted daycare support for children up to four years of age.

Six months of adoption leave to both parents if the child is under one year of age. If the child is more than one year of age, three months of maternity leave.

Adoption allowance of ₹50,000 to both parents.

Four months of flexible hours for mother and three months for father (four in case of adoption).

Three months of unpaid leave with job certainty (Flipkart, n.d.).

Godrej

Six months of maternity leave, three months of adoption leave, and 10 days of paternity leave.

Six months of flexible work arrangement after expiration of maternity leave.

Allowance to mothers to take a caregiver and the child along with her on work-related trips at the company’s cost until the child is a year old.

On-campus crèche facilities (Godrej, n.d.; Singh, 2018).

Hindustan Unilever Limited

26 weeks of maternity leave to all mothers, of which eight may be taken before delivery; can be availed of twice in her career 12 weeks for delivery of a third child. Three weeks of paternity leave available within one year of becoming a father; can be availed of twice in his career. The same is applicable to adoptive and commissioning parents. However, in cases of adoption, the child must be less than five years of age and leave may only commence up to two weeks before the date of adoption.

In case of miscarriage, six weeks maternity leave immediately from the date of miscarriage, option to request additional leave available. Special paternity leave also available.

Day-care facilities for children aged six months to six years (Hindustan Unilever Limited, n.d., 2018).

Novartis

26 weeks of parental leave to birthing and non-birthing parents, including via surrogacy and adoption, irrespective of the number of surviving children. In the case of a premature birth, additional parental leave is granted, depending on the number of weeks of prematurity.

Flexibility for non-birthing parents to utilise leave in two separate periods of 13 weeks each within a year of birth/adoption/surrogate delivery of their newborn (Novartis, 2019).

Vodafone Group

16 weeks of parental leave.

16 weeks of paid leave, availed of at any time during the first 18 months, to all employees whose partner is having a baby through birth, adoption, or surrogacy.

Flexible return from parental leave over six months by working the equivalent of a 30-hour week at full pay (Vodafone, 2019).

Zomato

26 weeks of maternity and paternity leave or as per government-mandated provisions, whichever is more beneficial to the parent. This policy is also applicable to non-birthing parents in cases of surrogacy, adoption, and same-sex partners.

An endowment of $1,000 per child for new parents (Goyal, 2019).

The private sector is far more generous in providing maternity benefits. Though the policies of some companies differentiate between types of mothers, most treat adoptive and surrogate mothers on par with biological mothers. Even when they do not, their policies are still much more favourable than under statutory law. Notably, they offer not just paternity benefits but also parental benefits.

The Road Ahead

The Maternity Benefit Act, despite its benevolent appearance, is a failed law. It has been criticised for being superficial, tailored to the elite (Rajagopalan & Tabarrok, 2019), and for not effectively addressing the real issue of discrimination against pregnant women and mothers in the workforce. The law worsens the public-private dichotomy due to the exclusion of paternity benefits, and can be availed of by a negligible percentage of the female workforce. Within this workforce too, the law discriminates between different classes of women. Finally, it also contains certain ambiguous and vague provisions that hamper effective implementation. The law is created by men who have a vested interest in maintaining the status quo. The Maternity Benefit Act for all its ‘affirmative’ provisions restricts women to the private, domestic sphere, and one wonders whether this was the intention all along.

The need for urgent reform is abundantly clear. The way forward would be a revision of the law by women for women. Specifically, revisions should create parental leave, and comprise benefits for the parents of the child, irrespective of sex, gender, and identity. Benefits that relate to nutritional enrichment and access to medical facilities that are not contingent upon eligibility should be included. The revisions must also include structural and regulatory benefits to enable the fight against discrimination of women in the workplace and help erase the gendered division of labour. Additionally, revisions should also aim at regulating the informal and unorganised sectors and streamlining hiring practices within the labour force. For instance, in Rachna Chaurasiya v. State of Uttar Pradesh, the Allahabad High Court held that all female government employees are entitled to full pay under maternity leave for 180 days, irrespective of the nature of their employment – permanent, temporary/ad hoc or contractual (CWP No. 24627 of 2017). The spirit of this judgement should extend to employment in the informal and unorganised sector. However, it is not simply hiring practices that warrant scrutiny; firing practices also need attention. The termination of female employees due to pregnancy is prohibited by law, which has resulted in less women being hired, and more women being dismissed on flimsy, arbitrary grounds. The judiciary is cognisant of this issue: in 2020 the Delhi High Court held that the non-renewal of the contract of an employee which had expired during her maternity leave was arbitrary (Manisha Priyadarshani v. Aurobindo College-Evening and Others, CM Applns. 49913-14/2019). It is important that the gaps in the system are addressed by law. Penalties and punishments must be updated to reflect current times and act as a sufficient deterrent.

The law and policy framework must take up the mantle of creating legal and social reform. The Maternity Benefit Act is likely to be subsumed by the proposed Social Security Code, without notable change (Social Security Code, 2019). This is the ideal time for the law to be revised as required, so that the superseding law does not suffer from the same flaws.

Footnotes

Declaration of Conflicting Interests

The author declared no potential conflicts of interest with respect to the research, authorship and/or publication of this article.

Funding

The author received no financial support for the research, authorship and/or publication of this article.

References

Accenture. (2015, 5 May). Accenture India increases paid maternity leave to 22 weeks. https://newsroom.accenture.com/industries/corporate-citizenship-diversity/accenture-india-increases-paid-maternity-leave-to-22-weeks.htm

Adobe. (n.d.) Personal and family services. https://benefits.adobe.com/in/work-and-life/personal-and-family-services

Adobe. (2020). India Parental Leave (Maternity and Paternity) Policy.

Adyanthaya

N. N.

(1954). Women’s employment in India. International Labour Review, 70(1), 44–66.

Agarwala

A. N.

(1946). The social security movement in India. The Economic Journal, 56(224), 568–582. 10.2307/2225987

Allott

(1968). The unification of laws in Africa. The American Journal of Comparative Law, 16(1/2), 51–87. https://www.jstor.org/stable/838247

Altekar

A. S.

(1959). The position of women in Hindu civilisation. Motilal Banarasidass.

Amazon. (n.d.) Employee benefits. https://www.aboutamazon.in/workplace/employee-benefits#:~:text=We%20offer%20up%20to%2026,eligible%20fathers%20as%20per%20policy

B. S. Rajeshwari v. State of Karnataka, WP No. 10677 of 2020.

10.

Baker

(1997). Parental benefit policies and the gendered division of labour. Social Service Review, 71(1), 51–71. https://www.jstor.org/stable/30012606

11.

Bhattacharya

(2018, 1 May). Improved maternity benefits could prove counterproductive: Survey. The Economic Times. https://economictimes.indiatimes.com/small-biz/startups/newsbuzz/improved-maternity-benefits-could-prove-counterproductive-survey/articleshow/63978085.cms

12.

Bhattacharya

(2019, 16 June). Is India ready for paternity leave? The Times of India. https://timesofindia.indiatimes.com/life-style/parenting/moments/is-india-ready-for-paternity-leave/articleshow/69801652.cms

13.

Carbado

D. W.

(1998). Motherhood and work in cultural context: One woman’s patriarchal bargain. Harvard Women’s Law Journal, 21, 1–18.

14.

Chakravarti

, & Roy

(1988). In search of our past: A review of the limitations and possibilities of the historiography of women in early India. Economic & Political Weekly, 23(18), 1–10.

15.

Cossman

, & Kapur

(1993). Women and poverty in India: Law and social change. Canadian Journal of Women and the Law, 6(2), 278–304.

16.

Dadwal

, & Chauhan

(2018). Maternity rights for working women and law in India: A critical analysis. International Journal of Social Science and Economic Research, 3(12), 6883–6907.

17.

Das

(2016). Unpaid care work and state policy. NALSAR Student Law Review, 9, 21–52.

18.

Desikan

(2020, 6 March). 49% start-ups hired fewer or no women in last 12 months. The Times of India. https://timesofindia.indiatimes.com/business/india-business/49-startups-hired-fewer-or-no-women-in-last-12-months/articleshow/74501850.cms

19.

Dr Reddy’s. (n.d.). Our key benefits. https://career.drreddys.com/benefits

20.

Dwarkadas

(2007). Forty-five years with labour. Asia Publishing House.

21.

Finley

L. M.

(1986). Transcending equality theory: A way out of the maternity and the workplace debate. Columbia Law Review, 86, 1118–1182. https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=5014&context=fss_papers

22.

Flipkart. (n.d.). Benefits at Flipkart. https://www.flipkartcareers.com/assets/benefits-handbook.pdf

23.

Foucault

(1978). The history of sexuality, volume I: An introduction ( Hurley

, trans.). Pantheon Books.

24.

Friedan

(1963). The feminine mystique. Norton.

25.

Godrej. (n.d.). Diversity. https://www.godrejcareers.com/diversity.aspx

26.

Goyal

(2019, 3 June). Introducing the new parental leave policy at Zomato. https://www.zomato.com/blog/parental-leave-policy

27.

Hindustan Unilever Limited. (2018, 1 July). Extending full support to working parents. https://www.hul.co.in/news/news-and-features/2018/extending-full-support-to-working-parents.html

28.

Hinudstan Unilever Limited. (n.d.). Parental leave policy. https://www.hul.co.in/files/aed8feca-9ddb-481c-8dc7-e6ca936bf290/parental-leave-policy--abzdwg.pdf

29.

Jha

(1920). Manusmriti with the commentary of Medhatithi. University of Calcutta. (Originally published 1776).

30.

K. Chandrika v. Indian Red Cross Society and Another, 131 (2006) D.L.T. 585.

31.

Kattwinkel

L. J.

(1992). On motherhood and working. Hastings Women’s Law Journal, 3(1), 1–70.

32.

Lihach

(2015). The patriarchal idealization of motherhood: A force of disempowerment and empowerment. Magnificat, 2015 (April). Marymount University Commons. https://commons.marymount.edu/magnificat/the-patriarchal-idealization-of-motherhood-a-force-of-disempowerment-and-empowerment/

33.

Manisha Priyadarshani v. Aurobindo College-Evening and Others, LPA 595/2019 and CM Applns. 49913-14/2019.

34.

Ministry of Labour and Employment. (2018). Clarification Regarding Maternity Leave Incentive Scheme, 2018. Government of India

35.

Ministry of Women and Child Development. (2018). National Minimum Guidelines for Setting Up and Running Creches under Maternity Benefit Act, 2017. Government of India

36.

Municipal Corporation of Delhi v. Female Workers (Muster Roll), AIR 2000 SC 1274.

37.

Nash

(2010). Feminism and contemporary liberal citizenship: The undecidability of ‘women’. Citizenship Studies, 5(3), 255–268. 10.1080/13621020120085234

38.

Navneet Kumari v. Delhi Council for Child Welfare, CA No. 27/2019.

39.

Neera Mathur v. Life Insurance Corporation of India, 1992 AIR 392.

40.

Neyer

, & Bernardi

(2011). Feminist perspectives on motherhood and reproduction. Historical Social Research, 36(2), 162–176.

41.

Novartis. (2019, 1 July). Novartis announces 26 weeks gender neutral parental leave policy in India. https://www.novartis.in/content/novartis-announces-26-weeks-gender-neutral-parental-leave-policy-india

42.

Pateman

(1989): The disorder of women: Democracy, feminism and political theory. Stanford University Press.

43.

ProEves. (2017). Managing the Maternity Benefit Amendment Act 2017: Survey highlights. https://community.nasscom.in/wp-content/uploads/attachment/creche-benefit-insights-and-implementation.pdf

44.

Rachna Chaurasiya v. State of Uttar Pradesh, Civil Misc. Writ Petition No. 24627 of 2017.

45.

Rajagopalan

, & Tabarrok

(2019). Premature imitation and India’s flailing state. The Independent Review, 24(2), 165–186.

46.

Rama Pandey v. Union of India, WP(C) No. 844/2014.

47.

Royal Commission on Labour in India. (1931). Report of the Royal Commission of Labour in India. General Publication Branch. http://14.139.60.153/handle/123456789/8973

48.

Sharma

(2019, 4 July). Government looking at enhancing, extending maternity benefits. The Economic Times. https://economictimes.indiatimes.com/news/economy/policy/government-looking-at-enhancing-extending-maternity-benefits/articleshow/70065766.cms?from=mdr

49.

Singh

(2018, 11 March). New moms on office tours get an extra ticket for the nanny. The Times of India. http://www.godrejindustries.com/media/news/268-new-moms-on-office-tours-get-an-extra-ticket-for-the-nanny.aspx

50.

Uma

, & Kamath

(2020). Gamechanger or a Trojan horse? Some reflections on the Maternity Benefit Act, 1961. Economic & Political Weekly, 55(20), 59–65.

51.

Union of India v. Asiya Begum, W.A. No. 4343 of 2019 and CMP No. 27997 of 2019.

52.

Vagmita

(2019, 7 March). The varied notions of motherhood. The Wire. https://thewire.in/women/the-varied-notions-of-motherhood

53.

Vodafone. (2019, 31 October). Vodafone supports families with new global policy offering 16 weeks paid parental leave to all employees. https://www.vodafone.com/news-and-media/vodafone-group-releases/news/vodafone-supports-families-with-new-global-policy-offering-16-weeks-paid-parental-leave-to-all-employees

54.

Wiedenbeck

A. E.

(2015). The natural mother: Motherhood, patriarchy, and power in seventeenth-century England [Doctoral dissertation]. Arizona State University.