Indian parliament passed the Maternity Benefit (Amendment) Bill, 2016, a day after the world celebrated the International Women's Day on March 8. The Rajya Sabha had approved the measure for maternity leave that makes India third on the list of countries with most maternity leave. Before India, there are only two countries with most maternity leave which are Canada and Norway where it is 50 weeks and 44 weeks respectively.
The present bill is an amendment to the Maternity Benefit Act, 1961. The Maternity Benefit Act protects the employment of women and entitles her to full-paid absence from work to nurture her child.
The Ministry of Women and Child Development issued a statement which said “ It is a historic day for women”, adding that the Bill will “pave the way for a healthy and secure mother and a well-nourished child”.
The bill has given many women reasons to be happy but it has left others with dissatisfaction. The merits, demerits, and impacts of this bill are elaborated below.
Top highlights of The Maternity Benefit (Amendment) Bill, 2016
1. The Bill protects the employment of women during the time of pregnancy and gives them privilege to full paid absence from work to take care of their child
2. Now on, women who work in the organized sector will be entitled to full paid maternity leave of 26 weeks, up from 12 weeks. This bill will benefit about 1.8 million women.
3. The maternity leave after the first two children will continue to be 12 weeks. That means for the third child, the entitlement will be for only 12 weeks.
4. The new law will apply to all organizations or establishments which have employed 10 or more people. Apart from it, the amended bill also makes it mandatory for employers in organizations or establishments with 30 women or 50 employees, to provide crèche facilities either in the office or in any place within a 500-metre radius. The mother will be allowed four visits to the creche in a day. This will include her interval for rest.
5. This law also permits women to work from if it is possible to do so.
6. The new bill recognizes that time is needed for those women who adopt or use a surrogate to bear a child to bond with the child in the initial months.
7.The new bill permits a 12-week maternity leave to commissioning and adapting mothers. The commissioning mother has been defined as “one whose egg is used to create an embryo planted in surrogate’s womb (in order words - a biological mother).”The time of maternity leave will be counted from the date the child is handed over to the adoptive or commissioning mother.
8. The Bill also provides for maternity leave of 12 weeks to mothers adopting a child below the age of three months as well as to commissioning mothers (defined as a biological mother) who uses her egg to have a surrogate child. In such cases, a 12-week period of maternity leave will be calculated from the date the child is handed over to the adoptive or commissioning mother.
9. The amendments would ensure that full maternal care is provided during the full bloom period and will encourage more women to join the workforce in the organized sector.
Demerits of The Maternity Benefit (Amendment) Bill, 2016
1. No Provision for Unorganized Sector
The bill will benefit only a minuscule percentage of women. The bill does not provide any beneficiary provisions for the majority who are working as farmers, self-employed women, contractual laborers etc.
Even if the law is fully implemented, studies show that it will benefit only 1.8 million women in the organized sector leaving out practically more than 90% of the country’s women workforce which falls within the unorganized sector.
Some critics of the bill opine that maternity benefits should be universally available to all women, including wage earners.
2. Lack of interest in Parliament
When the Maternity Benefit (Amendment) Bill, 2016, came up for discussion in the House the only 53 MPs, including 11 women members were present in the Lok Sabha. These 11 women members included 8 women MPs from the Opposition and 3 from the treasury benches.
3. Could be a Deterrent for Female Employment
There is no non-discrimination clause in the bill which is required to guarantee that no person is discriminated against in employment for having availed any parental benefits.
This amendment in the bill raises the period of maternity leave to 26 weeks from the present 12 weeks, it could act as a deterrent for the private sector to employ women workforce.
4. Lack of Scientific Basis
The International Labor Organization convention recommends 14 weeks of maternity leave, in India, 12 weeks was already allowed. The previous Act neatly described the pre-confinement and post-confinement period, and all other aspects including miscarriage. There are not very clear reasons why “26 weeks” has suddenly become the right quantum of maternity leave. The healthcare industry has not described what the optimum leave time is. It only suggests how long a baby should be breast-fed.
5. Ambiguities regarding Surrogacy
The topic of surrogacy has not been addressed clearly in the bill. The surrogacy issue was discussed in the Rajya Sabha during the winter session. But the bill misconstrues surrogacy although it’s a $100 million industry. The Bill says that the person adopting the baby post-surrogacy is entitled to maternity leave in order to bond with the child. But there are other laws which make it near impossible to commission surrogacy.
Impact on Industries
Laws that talk about gender equality are great in theory but they should be present innately within the enterprise and not be taken as an obligation. So it is the responsibility of the Government to encourage industry in recognizing such benefits voluntarily.
For a startup or SME of 20 or 25 employees, a 26-week leave of absence is a significant loss as they operate on thin margins.
This kind of scenario will significantly harm the enterprise and render some of the jobs redundant in anticipation.
Faced with higher minimum wages, increased PF/ESI contributions coupled with larger bonuses and new leave provisions in this Bill, the Make in India ideal appears tougher than ever.
As a consequence of the new Bill, there will be hesitation to employ married women because data privacy laws prevalent in developed nations are not fully adopted in India.
Hence without a legal obligation prohibiting private questions such as are you married? from being asked during interviews it will not be easy for women to find employment in critical sectors.
It would be difficult for industries to manage an absence of 26. Such a big absence can neither be substituted by a temporary appointee nor managed by the system without affecting productivity.
So the idea of facilitating the observance of labor laws may help the government to successfully implement this law into the Industry. The Government should also incentivize those who facilitate it.
Despite its some demerits, this bill would be beneficiary for Indian women because in Indian society women are supposed to be more responsible and caring for children. This bill will help in Indian women taking responsibility for their children. This bill also creates room for the discussion about the need for such laws for the women who work in unorganized sector.