India has come a long way with progressive steps like including provisions for commissioning mothers and adoptive moms after the 2017 amendment[1] and celebrating landmark judgements like Pooja Jignesh Doshi case[2] wherein the court upheld how surrogate mothers are entitled to maternity leaves and Neera Mathur case[3] wherein The Supreme Court ordered LIC to shed backward thinking and reinstate Mrs. Mathur and highlighted how disclosing personal facts about her menstruation and pregnancy were not required to be disclosed to an employer. India is now the country with the third-longest maternity leave.

Despite the landmark additions to Maternity Benefits in India owing to the arrival of social security code 2020 which stipulate 26 weeks of paid leave for the moms instead of the current 12 weeks and the law allowing women to take an additional 4 weeks of leave for issues relating to childbirth, pregnancy, miscarriage, medical termination, or early delivery is receiving more groans than hallelujahs owing to its skewed character.

For example, women who adopt children older than three months are not eligible for maternity benefits under the legislation. This unintentionally inhibits adoption and reinforces the notion that adopted children do not need the same level of care that a biological child of a woman gets. Some of the factors that have been responsible for this backlash are as follows:

Mothers Of Two Or More Children Are Entitled To Half The Maternity Leave.
Women adopting children or taking their third maternity leave, face this kind of discrimination, when they should be the ones getting longer maternity leave because their bodies would require more time to heal. Back-to-back deliveries may deplete crucial nutrients, putting mothers at risk for anemia and other issues like uterine rupture etc.

This legislation also throws light on how expectant mothers have bigger burden on them as they are more accountable for regulating family size than their male-partners. The extension of the maternity leave period was made with the goal of ensuring that kids get crucial maternal care during their early years, which have a significant impact on how they grow up.

The case of Union of India vs. M. Asiya Begum[4] comes to the forefront in this respect. This case established a clear need for why courts should adopt golden rule of interpretation to avoid absurdities that lead from literal interpretation in sensitive cases like this. While this case needed a liberal interpretation of the current framework. The court did otherwise. The petitioner in the case delivered twins on her first delivery and received up to 180 days of maternity leave.

However, the question of 'whether the maternity benefit could still be utilised as it would be her third child from the second delivery' surfaced with her second delivery. According to the court, a woman can only receive these benefits for her initial two deliveries under present rules. The current birth was deemed to be a third rather than a second because twins normally arrive one after the other, resulting in two deliveries rather than the single act. It was justified because the twin's age is defined by the time interval, making them appear to be two births.[5]

What About the Unorganized Sectors?
Majority of women in India work as contractual/waged workers under severely exploitative working conditions. Maternity benefit is calculated at the average daily salary for the period of the female employee's leave, which is insufficient to cover childcare costs. It is a pricey investment for most and people without financial aid will face most difficulties in returning to work. Even though the Code[6] allows application of maternity benefits to unorganized sectors, the lack of a duration, timeline, schematic provisions etc. make this appear like a shaky possibility. Since the "unorganized sector" is reliant on an enterprise yet the Code lacks a definition of an "enterprise", even that description is ambiguous.

Thereafter casual workers, farmers, housewives and self-employed women remain unrecognized under Indian labor laws. A woman is viewed like a liability when she becomes pregnant. There are no provisions in the new law to eliminate this mindset. Only the businesses with ten or more employees are required to comply with the regulation, that means maternity benefits are ineligible for women who work for small enterprises or are self-employed.[7]

Female employees have right to two 15-minute breastfeeding breaks till their child is 15 months old, as per law. But this clause only applies to women in the organized sector, ignoring most female employees in the unorganized sector.[8] As a result, many mothers are unable to take advantage of these critical nursing intervals for the child's development and growth.[9]

The nature of unorganized work necessitates several employers, which contradicts the criteria of the maternity benefit laws, which states that to get the benefit, women must work for at least 80 days in the preceding year as per section 60 of the Code. But this is also a carbon copy of the S.5 Maternity Benefit Act 1961(amended in 2017). So, no additional benefit/leave is noticed here.

The Supreme Court ruling in favor of maternity benefits in the Muster Roll case stressed on how female employees should not be compelled to work during their pregnancy's advanced phases and they should not get any less benefits than their peers.[10] The Court, however, stipulated that these benefits are available only after three years of continuous service. (Which is a lot to expect even from women in organized sectors)

This condition differs from the standard legislative rule, which allows organized-sector workers to receive maternity benefits after 80 days of employment. Thus, this also excludes women of the unorganized sectors like women without a definite source of income, working in construction jobs, as seasonal employees, farming, domestic-workers etc.

Paternal Leave
While South Korea is providing 53 weeks of paid paternity leave and Japan providing 30 weeks of paid paternity leave, an example of existent bias in India which remains unrecognized even after the updated maternity benefits is the uneven number of paid leaves offered to a man and a woman upon the birth of a new-born at their respective employments.

Paternity leave, on the contrary, is only offered to government employees for a duration of up to 15 days under paternity benefit rules announced by the government in 1999. In the private sector, male employees continue to be denied this benefit because there is no regulation mandating this necessity. Only bright spot despite the lack of law in the private sector to provide paternity benefits: A few multinational firms in India have provided these necessary perks to their male employees.

Beneficiaries
The significance of the kid as a beneficiary of maternity benefits is covered by section 5(4) of the Act.[11] In case the mother passes away but the child lives; in these situations, the father or another guardian will get the maternity benefit to sustain the child. The benefit is not given to the father/guardian if both the mother and the kid pass away, which I think is justifiable because this benefit is given for the nurturing of the baby and the mother's good health and if both are not present anymore, giving such a benefit to the father/ guardian appears pointless and burdensome on the employer. It's a benefit and not an "earning."

Creche facility
The expense of the creche facility is another problem that needs to be solved. Although the law does not specifically state that the employer must pay for the facility, a beneficial reading of the law[12] leads to this conclusion. The Ministry of Labor and Employment stated in a Right to Information (RTI) answer that the legislation's goal was to ensure that employers cover the cost of the childcare facility, even though it lacks legal authority. As a result, the employer is effectively responsible for paying for early childhood care.

A maternity care package with basic infant supplies and a secure, uniform public creche for kids up to age seven is available to new parents in the Netherlands. India's creche regulations, in contrast, are ambiguous and the government does not take responsibility for creating them. India could adopt a Dutch model and aid working pregnant women in maintaining their professions and financial independence by establishing public daycare facilities.

Is Maternity Benefit Entirely Fair to Employers?
The main issue concerning the MB Act[13] is the way it puts the duty of paying for maternity leave firmly on the shoulders of the employer, making recruiting women difficult for them. To eliminate workplace discrimination and to promote female involvement in the workforce, the state's role in assisting working mothers is crucial. This is not to say that women should not be entitled to maternity benefits. Extending the scope of mandatory social insurance (like ESI) to all employees, regardless of their wages, is one tactic that could help reduce the danger of discrimination.

According to S.5 of the Act every woman is entitled to get a maternity benefit from her employer. The leave seems fair from a medical perspective because it reduces postpartum anxiety. But prolonged leaves are an added financial burden on the employer where in the woman's absence, the companies are often forced to hire a temporary employee who does the same duties[14] at the same pay scale.

Research shows that this financial burden acts as a deterrent to companies hiring women in their workforce and women having decreased chances of, moving up the management ladder, receiving raises and promotions. The absence of a definite stringent method to check if employers are facing problems in this respect is also to be noted.

In the Mini KT case,[15]a female employee was given a notice by her employer that her request to be transferred to a gulf nation so that her autistic child might receive treatment there was both illegal and very improbable. The court held how all Indians have the right to be a caregiver and should not be required to choose between their personal and professional lives. But the case emphasizes how the employer is required to accept something that is administratively impractical and unfair to other employees who deserved the position.

Need of the hour: More gender-neutral laws
Same-sex couples cannot become pregnant naturally and for this reason they do not have the same advantages as heterosexual couples. When attempting to get maternity benefits, transgender and gender nonconforming people experience several challenges before them. Promoting inclusivity and ensuring that these benefits are accessible to all people, regardless of their gender identity, expression, or sexual orientation is the need of the hour.

In order for transgender people to perform their jobs to the best of their abilities at work, it is crucial to provide them with support. Since transgender people are a particularly vulnerable group in society and were given special protection in the case of National Legal Services Authority v. Union of India[16], they would benefit from a provision being added to the Maternity Benefit Act that would grant them maternity benefits.

The ILO has also suggested a model of social insurance to guarantee maternity benefits to employees in a workplace, as the Supreme Court has emphasised the need for legal protection of transgender persons in employment, healthcare, education, state activity, and other areas. Even though the Employee State Insurance Act of 1948 includes this approach, it is only applicable to specific enterprises. This approach will stop employees from discriminating against people based on their sexual orientation at the time of hiding if it is enacted and established prevalently in maternity benefits. In conclusion, the maternity benefit legislation must be construed in light of the Indian Constitution, ILO Convention 111, and global human rights norms because parenthood is a right that is not exclusive to females.

The dynamic reading of the Maternity Benefit Act in conjunction with the Transgender Persons Act should stop workplace discrimination against transgenders and give them access to maternity benefits. But it would be better if the MB[17] Act itself specifically talked about protecting rights of all genders wanting to be a mother. In India, the law still does not sufficiently recognise or safeguard the rights of the LGBTQIA+ community.[18]

Recommendations
Rather than enforcing all the financial burden of improved maternity benefits on employers, the government could follow the lead of countries such as Australia, France, Canada, Brazil, Singapore where costs are either shared by public funds, government, and employers, or are completely funded by social security schemes and public funds.

Some kind of system should exist, to reduce the burden on employers, acting as an incentive for them to hire more female employees. companies should be granted economic tax breaks in lieu of providing maternity benefits, at least initially, to avoid making companies solely liable for social changes. Another option that can be taken into consideration is an employee payroll tax, which would spare businesses the expense of covering maternity leave-related costs and hiring substitute workers. Research on other family-friendly policies, such as paternity leave, should be looked at by the government to promote female labor market participation.

To ensure that both parents are involved in child-rearing and to prevent females from falling behind their male counterparts due to prolonged absences for domestic and maternity duties, the current 26-week maternity leave for both mother and father could be divided into roughly 13 weeks each. Making paid leave gender neutral is crucial in the twenty-first century as this will surely have an impact on reducing gender gaps in the labor force.

Also, Alternately, the Code's plan could have required the 26 weeks of leave while still enabling women to use unused maternity leave. For instance, if a female employee only used 20 weeks of maternity leave and desired to resume work, she would be permitted to do so and would get the extra 6 weeks of leave as compensation in addition to her wage.[19]

End-Notes:

1. Maternity Benefit (Amendment) Act, 2017
2. Pooja Jignesh Doshi v State of Maharashtra and Hema Vijay Menon v State of Maharashtra (Bombay High Court) WP No. 1665 of 2015
3. Neera Mathur v LIC (1992) 1 SCC 286
4. Union of India v. Asiya Begum, WA No. 4343 of 2019 (Madras High Court)
5. IPLF, Analyzing Maternity Benefits under the Social Security Code (Feb 23, 2023) https://www.ipandlegalfilings.com/analyzing-maternity-benefits-under-the-social-security-code/
6. Social Security Code, 2020
7. Neeta Lal, The New Maternity Benefits Act Disregards Women in The Unorganised Sector, THE WIRE, (Aug 21, 2016) https://thewire.in/law/indias-new-maternity-benefits-act-criticised-as-elitist
8. Section 66 of the Code on Social Security, 2020
9. Section 11 of the Maternity Benefit Act of 1961
10. Municipal Corporation of Delhi V. Female Workers (Muster Roll) and another, 2000 SCC (L&S) 331
11. Section 5 in The Maternity Benefit Act, 1961
12. as is frequently done in labor laws.
13. Maternity Benefit (Amendment) Act, 2017
14. As the woman employee on leave
15. Mini KT. V Divisional Manager, LIC 2018(1)KLJ245
16. National Legal Services Authority v. Union of India Writ Petition (civil) No. 604 of 2013
17. Maternity Benefit (Amendment) Act, 2017
18. Raagini Raghu, Can transgender people get maternity benefits?, LEGAL FORMATS INDIA COM (Jun 25, 2021), https://legalformatsindia.com/maternity-benefit-act-and-transgender-persons-act
19. Rashmi Bagri, Maternity Benefits In India: A Look At The Well-Intended But Misguided Law, LIVELAW, (Jan 30, 2022) https://www.livelaw.in/top-stories/maternity-benefits-in-india-a-look-at-the-well-intended-but-misguided-law-190683
    

Written By: Madhurima Mukherjee