The >Maternity Benefit (Amendment) Bill , 2016, which was passed by the Rajya Sabha on August 11, is a shallow attempt at protecting maternity, and one that does not adequately embrace a human rights approach. The Bill does nothing to dismantle the male breadwinner model and continues to reinforce the stereotype about childcare being exclusively a woman’s responsibility. It also demeans and discriminates against alternative parenting models.
The Bill introduces four major changes to the law relating to maternity benefits. One, it extends the period of maternity benefit from 12 weeks to 26 weeks of which not more than eight weeks can precede the date of the expected delivery. This exceeds the >International Labour Organisation ’s minimum standard of 14 weeks and is a positive development. However, a woman who has two or more surviving children will be entitled to 12 weeks of which not more than six weeks can precede the date of the expected delivery. Two, women who legally adopt a child below the age of three months or a “commissioning mother” will be entitled to maternity benefit for 12 weeks from the date on which the child is handed over to her. A “commissioning mother” is defined as “a biological mother who uses her egg to create an embryo implanted in another woman.” Three, it gives discretion to employers to allow women to work from home after the period of maternity benefit on mutually agreeable conditions, if the “nature of work assigned” to them permits such an arrangement. Four, it requires establishments having 50 or more employees to have a crèche facility, either separately or along with common facilities. Further, employers should allow the woman to visit the crèche four times a day, which “shall also include the interval for rest allowed to her.”
Steeped in stereotypes
The Bill is steeped in an androcentric notion of family and the workplace. It assumes that only a mother is a parent or primary caregiver, while a father is the provider and an employee bereft of an active responsibility in childcare. It is silent on paternity/parental leave. It requires employers to ensure that women are allowed four visits a day to the crèche facility maintained by the employer, implying that establishments which do not have working mothers will be exempt from the obligation to maintain a crèche.
Restricting the option of working from home to only women also reinforces gender-based roles within the family. Provisions like these will inevitably cause employers to view these measures as an undue burden. It will also render the ‘equal pay for equal work’ guarantee illusory as the “nature of work” assigned to working mothers can always be rationalised as not being the same as their male counterparts. While it may marginally improve the working conditions in the short term, the amendment will undoubtedly perpetuate and sustain the gender gap in employment and in pay scales.
Adoptive parent/s discriminated
Since 2006, the Government of India has granted adoption leave of 135 days to women government servants on adoption of a child upto one year of age. The Guidelines Governing Adoption of Children, 2015, require government and public sector undertakings to provide adoption leave to all adoptive parents working in their offices irrespective of the age of the child. The Bill regresses as it entitles an adoptive mother to maternity leave of 12 weeks only if she adopts a child below three months of age. It overlooks the rigorous procedures on declaring a child free for adoption under the Juvenile Justice ( >Care and Protection of Children ) Act, 2015, that makes it nearly impossible to adopt a child below three months. The Bill also ignores Section 57(3) of the JJ Act, which enables a “single person” to adopt.
In effect, the Bill discriminates against almost all adoptive mothers, particularly those who adopt older babies or children. It also discriminates against adoptive fathers and transgendered persons who may adopt, as it does not even recognise their right to parental benefits. The state appears to be incentivising the adoption of younger babies and discouraging the adoption of older babies and children. It also fails to recognise that children require equal amounts of time, care, attention, and protection irrespective of the ways in which they come into a family. In fact, building a bond with an older child or baby can take much more time for adoptive parents.
Another problem with the Bill is that it says maternity benefit is available to a woman only if “her egg” was used to create an embryo. This is a demeaning way of sanctioning surrogacy and is fairly unscientific as well. It fails to recognise that either of the parents could be a donor and need not necessarily be the mother. It also sidesteps the controversy surrounding surrogacy involving anonymous donors.
While maternity should certainly be protected, the law should recognise that raising a child is a social function and the responsibility is commonly owed by all parents and not just the biological/adoptive/commissioning mothers. An amendment cannot be blind to the need for recognising parenting responsibilities and protecting children irrespective of the gender identity of their parents. To ensure genuine equality in employment, protection of maternity, and promotion of childcare, Lok Sabha members should ensure that the Bill extends maternity benefits equally and unconditionally to all women who parent a child and introduce parental leave as well. Employers should be under an obligation to provide crèche facilities and work-from-home options to all parents and not just to working mothers as childcare is a shared responsibility. Lastly, a non-discrimination clause should be added that no person should be discriminated against in employment for having availed any parental benefits under the law.
Swagata Raha is a legal researcher based in Bengaluru and can be contacted at email@example.com.