India’s Bold Maternity Benefit Act Can Become a Game Changer if it Addresses Current Limitations

The landmark Maternity Benefit (Amendment) Act, 2017, (henceforth, the amendment) became effective from April 2017. ^[1] It makes New Age amendments to the Maternity Benefit Act, 1961 that protects women’s employment, and women’s and children’s well-being during maternity, with paid absence and related benefits.^[2] Like its original, the amendment covers establishments employing 10 or more persons^[3] and women working for at least 80 days in the 12 months immediately preceding the expected delivery date. The law penalises non-compliance, including the taking of legitimate maternity leave (Government of India 1961).

The amendment extends paid maternity leave for women employees with less than two surviving children, from the original 12 weeks to 26 weeks. A maximum of eight weeks can be taken before the expected delivery date and the remaining after childbirth Section 5A.(3i)]. Women expecting their third child have 12 weeks of paid maternity leave—six weeks before childbirth and six after. Section 5A.(3ii)]. Mothers adopting a child below three months of age, or “commissioning mothers” ^[4] have 12 weeks of maternity leave from the date of receiving the child Section 5B.(4)]. The act enables working from home after completing 26 weeks of leave contingent on work profiles and the employer’s endorsement. Section 5B.(5)]. It mandates a crèche for establishments employing 50 or more employees within such distance as may be prescribed either separately or along with common facilities. Women employees can visit the crèche four times a day, including during their rest interval Section 11A(1)]. Employers must inform women when initially appointed, in writing or electronically, about benefits available under the act Section 11A (2)] (Gazette of India 2017).

At a time of increasing education  and economic growth, Indian women’s participation in the organised labour force declined from 34.1% in 1999–2000 to 27.4% in 2015–16 (Verrick, 2017)—ranking 11^th bottom up among 131 countries with available data (ILO 2013). There are also wide gender differences in participation rates. This contributes to women’s multidimensional relative poverty, adversely impacting their families and communities, and pegs women’s contribution to India’s gross demestic product (GDP) at 17% compared to the global average of 37%. (McKinsey Global Institute 2015). A number of reasons are responsible for this, including the very definition of work, methodological concerns in its measurement and shifts from recognised to unpaid work that are not counted as work. Many Indian women quit employment after marriage and childbirth. According to a study by the Associated Chambers of Commerce and Industry of India, 100 new mothers interviewed in 10 Indian cities exited employment post-childbirth (ASSOCHAM India 2015). This reflects a gendered division of labour, wherein motherhood—the dominant marker of femininity—returns women in paid public employment to full-time domesticity to fulfil their “primary” roles. These women either lack accessible, affordable, secure childcare assistance or family support, or have internalised dominant notions of womanhood and may be conflicted about public employment versus childcare priorities.

Challenges Faced

The act’s extended and different categories of paid maternity leave, work from home options and crèche provisions, potentially reaching 1.8 million formal sector women workers, contribute to easing pressures of combining paid public work with unpaid care work, for which women bear the principal responsibility. This may increase the numbers of post maternity returnees and retention of women employees over time, enhancing their right to decent work and access to material and non-material resources. Women’s incomes and public-sphere learning have multiplier effects on development as they tend to invest these in families and communities, creating social and economic capital (World Bank 2014). Further, $2.9 trillion additional annual GDP could be added in India in 2025 by fully bridging gender gaps in employment which is 60% higher than business-as-usual GDP in 2025 (McKinsey Global Institute 2015). Top quartile companies on executive-level gender diversity worldwide had a 21% and 27% likelihood of outperforming fourth quartile industry peers on profitability and longer value creation (McKinsey and Company 2018). In India, maternity leave funding is an investment in gender diversity mandated by many companies. Industry analysts suggest offsetting the high cost of post-maternity loss by spending at least 1% of this cost loss on support to returning women to work (Agarwal 2017). The amendment positively supports adoptive and commissioning mothers, enhancing its inclusivity, and codifies women’s right to information on maternity entitlements.

Its challenges relate to coverage, inadequate provisions and guidelines which could undermine uptake, reinforcing discrimination in employment especially for poor women. It conflates maternity benefits with women as mothers, and is framed within the heteronormative paradigm, overlooking the Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) community, and their motherhood or parenting. This reinforces conventional gender-based divisions of labour, identities and relations.

Contrary to the recommendations of the Sixth Pay Commission, 2008 and the Law Commission of India, 2015, the amendment excludes informal sector women workers, who constitute 93% of India’s workforce. With poor childcare support, these women cope by leaving children alone at home, enlisting an older sibling’s assistance and taking children with them to work. ^[5] This compromises the quality of care, health and security of young children. It negatively affects educational and employment opportunities of the caregiver, often a girl child, withdrawn from school to provide care, reinforcing the vicious cycle of poverty and gender inequality. Children at the mother’s worksite bereft of crèches can reduce time and effort that women may invest in paid work, diminishing productivity (Swaminathan 1985). It exposes children to multiple hazards such as toxic environments, extreme weather conditions, animal and insect bites, traffic or other accidents in fields, at construction sites, markets. In the case of women in the sex sector, it exposes children to sex too early in child debilitating environments. ^[6] These children tend to join the army of child labour as they grow, incrementally assuming tasks at these worksites (Swaminathan 1985).

It also does not define common facilities or have guidelines governing crèche accessibility, infrastructure design standards, child enrolment and retention ages, competence standards for personnel and care. Its crèche provisions overlook childcare in middle-class Indian families where working women may receive childcare support from extended families and/or domestic workers in the comfort of home (D’Cunha, forthcoming). It also overlooks the physical and monetary costs of transporting children to and from worksites, and does not provide for crèches in residential areas or subsidies for childcare support by domestic workers. This can negatively impact women’s uptake.

A mid-November 2017 circular, issued by the Ministry of Labour and Employment, Government of India, directs state governments to introduce rules regulating crèches. This could result in time lags, missed opportunities to establish crèche, non-standardised rules and compromised quality, which undermine use. According to industry reports, employers are in interim drawing on crèche guidelines under the Factories Act, 1948 or the Kerala Shops and Commercial Establishments Act, 1960. They are adopting varied models such as in-house crèche facilities with self-run or outsourced administration, establishing separate off worksite crèches, partnerships with external crèches, or utilising surplus space of other employers with in-house crèches. Current usage is reportedly not that high, given the culture of childcare support by extended families or domestic workers at home (deRidder and Hutchings 2018). Finally, if crèche design and implementation guidelines do not include employees of all genders and socio-economic groupings, usage may be limited and discrimination reinforced.

The amendment may unintentionally cause replacement of women by male labour, reduction in women’s wages and labour force participation. Employers have been made fully responsible for providing maternity benefits. This is feasible for large corporations but start-ups, and micro, small and medium enterprises (MSMEs) that employ around 40% of India’s workforce, grapple with operating costs. Maternity benefits would impose further cost pressures, risk of litigation, penalties for non-compliance and threatening viability. This could result in recruiting men instead or lowering productivity in women-oriented jobs. If reduced wages contribute negligibly or negatively to household incomes, women may exit employment, further reducing their labour force participation rates and increasing gender inequalities in employment (Khattri 2017). This could be averted by tax breaks and public–private partnerships in childcare support to these sectors and for poor communities, without transferring the cost burden to beneficiaries.

There are no post-return career management provisions for women, such as refresher trainings. Women risk placement in woman-focused arrangements “retrofitted to suit male environments.” These include “a mommy track” of part-time work just for women, in which the hourly gender wage gap globally tends to be the most, between women working part-time and men working full-time or switches to less-demanding jobs that undermine women’s upward mobility (Elson 2017).

Monitoring and Accountability

The amendment’s provision of maternity benefits to women associates childcare solely with women, thus reinforcing a gendered division of labour. Unpaid care work involves household maintenance, person care in one’s own household and volunteer services to others. This creates, nurtures, renews and replenishes the workforce. It is fundamental to economic and social functioning, and subsidises the economy and State. Unpaid care work is ideologically mystified as a “labour of love” or “innate to women” which needs no special skill. While child-bearing and breastfeeding are completely “women-centric” biological acts, care work, including childcare is a social act that all people can be socialised into providing. Invisible in the privacy of domesticity, unpaid care work is not defined as “work” and not counted in GDPs. The low-value underscoring it mediates the poor value of women’s paid public work and discriminatory gender-based sectoral and occupational segmentation—vertical and horizontal. It is imperative that societies understand the socio-economic value of unpaid care work, include it in the System of National Accounts^[7], and measure its contribution to GDP, as in the case of Mexico and the Philippines. Further, pressures of unpaid care work can be reduced through public investment in material and social infrastructure like clean energy, water, sanitation, healthcare services, such as decentralised renewable energy solutions for women-enhancing access to energy and non-traditional jobs, mobile crèches provided by the voluntary sector in India for women informal sector workers. There is a need to go beyond recognising and reducing unpaid care work for women in ways that shed stereotypes, towards ensuring its redistribution between men, women and all genders, as this is central to gender equality and women’s rights.

Redistribution requires reform in policy, institutional mandates, standard operating procedures, practice and cultures at scale; changes in communities and households, and pervasive transformation in individual thinking and practice. Ninety four of 170 countries in the International Labour Organization’s (ILO) 2015 data base, provided paternity leave for fathers—up from 41 out of 141 in 1994  (ILO 2016). But, paid paternity leave has an average time frame of seven days versus 106 days for mothers (Elson 2017). A notification in the late 1990’s under the All India Civil Services (Leave) Rules permitted biological and adoptive fathers in government service to 15 days paid paternity leave which may be merged with other leave. There is no legislation mandating compulsory paternity leave in private institutions. But the New Delhi High Court upheld paternity leave in private schools in Chander Mohan Jain v N K Bagrodia, 2009. It ruled that Jain, a private school teacher be returned his deducted salary, deeming his paternity leave. A 2017 ProEves Survey on maternity, childcare, parental support in India, demonstrated that 85% of 70 organisations across varied sectors granted paternity leave and supported new fathers in transitioning to parenthood (Agarwal 2017).  

More countries are encouraging men to take parental leave. Tax-funded paid parental leave policies for fathers and mothers facilitate redistributing care work between men and women, shed gender stereotypes (OECD 2011), enhance equality in decision-making, mutual respect and appreciation between mothers and fathers (Holter et al 2009), enrich men’s nurturing capacities and lived experience (D’Cunha forthcoming). They also reduce gender-based work inequalities. A 2010 Institute for Labour Market and Evaluation Policy showed that a mother’s future earnings increase on average 7% for every month that the father takes parental leave (Bennhold 2010). It enhances women’s mobility, access to material and non-material resources and agency (D’Cunha forthcoming).

Fathers’ use of parental leave happens best when paid—at least half of previous earnings, as in Iceland, Japan, Norway, Portugal, and Sweden. Facilitating flexible leave options such as taking parental leave in one block, or flexibly, till the child is three years old (as in Iceland) and prohibiting fathers from transferring their entitlement to mothers, also increase the proportion of men taking parental leave and amounts used (ILO 2016). In Iceland and Sweden, which have a “use it or lose it” policy for fathers, men’s uptake is much higher—at 90%, than in Denmark (24%) and Slovenia (6%), where such provisions are absent (Elson 2017).

Organisations should consider paid leave for various care responsibilities, advance scheduling for shift workers, flexible work arrangements, sick leave, subsidised quality childcare, adequate pensions, shorter working hours as appropriate, liveable wages, and work cultures that respect care work by all genders equally with professional achievements (Heilman 2017). Investing in gender diversity and realising that working parents constitute an increasing share of India’s workforce, companies are building an enabling ecosystem for sustainable careers for women and men. Procter & Gamble and Snapdeal have launched campaigns like #sharetheload and #fatherscanbemothers too. Sapient India has flexible working hours and work from home policies for men and women (Shrivastava 2018). Other employer practices include secured performance rating, workshops for new parents (Shrivastava 2018), and on-site crèches for men and women employees (D’Cunha forthcoming).

Conclusions

Research and community outreach show shifts in thinking and practice on masculinities and femininities. A study of 9,205 men and 3,158 women aged 18 to 49 in seven north Indian states said that one in four men strongly believed that men and women are equal, and men should share housework. A multi-country study^[8] covering 8,000 men and 3,500 women across four regions suggests generational shifts in male thinking and practice, even in low-income countries, with men and women valuing men’s greater participation in childcare and men devoting increased time to unpaid care work in some contexts (ICRW and Instituto Promundo 2011).

Against this backdrop, India’s bold Maternity Benefit (Amendment) Act, 2017 can surpass itself by addressing current limitations and redistributing unpaid care work between men, women and all people—a game changer for equitable gender relations.