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Pregnancy phase is considered one of the most pleasurable yet painful periods of a woman’s life. The phase and the motherhood phase that follows it make the life of a woman upside down, to say the least. Therefore, to safeguard a woman and support her in her professional career which goes through such crests and troughs, there are certain laws in India’s legal framework. These laws are formulated to offer certain protective measures and safeguard women against discrimination and payment of salaries and wages during the maternity phase to help her arrive at the motherhood phase, smoothly. 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.

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 work owing to their pregnancy. It also confers certain kinds 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)

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 calendar weeks instantly following that day.(iii) However, the Amendment Act has advanced 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, 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)

ADOPTION RELATED MATERNITY BENEFITS

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 period of 12 weeks from the date the child is given to the adopting mother or the commissioning mother, as the instance maybe.(viii) 

MISCARRIAGE BENEFITS

“Miscarriage” refers to the expulsion of the contents of a pregnant uterus at any period before or during the twenty- sixth week of pregnancy.(ix) Some women undergo miscarriages and the Act accommodates a maternity benefit to them as well. Firstly, no woman is permitted to work at an establishment six weeks following the day of her miscarriage.(x) Further, upon the production of a proper medical evidence, the lady will be permitted to leave with remunerations at the rate of maternity benefit for this period of six calendar weeks.(xi)

DISMISSAL DURING MATERNITY LEAVE

Once a woman absents herself in adherence to the requirements of the Act, it shall be illicit for her employer to discharge or dismiss her during or on account of such absence or to give her any such related notices. These sort of notifications and steps become invalid during such absence.(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)

OTHER BENEFITS

There are certain other perks to new mothers, that are mandated by the Act. The Act entails the setting up of a crèche, by the employers of the firm having 50 or more employees. 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 to make them aware of their rights.(xv)

CRITICISMS OF THE ACT

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 problems, including paid maternity leave for a commissioning mother, a woman who undergoes miscarriage and a mother who adopts a child aged below 3 months. However, the foremost issue with this Act is that these assistances extend only to women employed in an association that hires 10 or more persons and only for those working for at least 80 days, before going for maternity leave. This, largely, does not cover women working in the informal sector. 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. Another startling 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. There are a few exceptional companies such as Zomato, which has recently implemented 26 weeks of paid parental leave to all its employees, including new fathers, surrogate, adoptive parents, as well as same-sex parents. Though there may be a few more companies bringing such basic yet ironically considered revolutionary benefits to their employees, especially the new fathers. But, there are only handful.

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END NOTES:

1. Section 3(b), Maternity Benefit Act, 1961.
2. Section 4, Maternity Benefit Act, 1961.
3. Section 5(3), Maternity Benefit Act, 1961.
4. Section 3A(i), Maternity Benefit (Amendment) Act, 2017.
5. Id.
6. Section 5(A), 3(i), Maternity Benefit Act, 1961.
7. Section 2(ba), Maternity Benefit Act, 1961.
8. Section 5(4), Maternity Benefit Act, 1961.
9. Section 3(j), Maternity Benefit Act, 1961.
10. Section 4(2), Maternity Benefit Act, 1961.
11. Section 9, Maternity Benefit Act, 1961.
12. Section 12(1), Maternity Benefit Act, 1961.
13. Section 12(2)(b), Maternity Benefit Act, 1961.
14. Section 11A(1), Maternity Benefit Act, 1961.
15. Section 11A(2), Maternity Benefit Act, 1961