Right to Maternity benefits
Maternity benefit is an allowance a woman is entitled to during the period of pregnancy or in the subsequent period after childbirth that is usually claimed against the state or the employer. It is a means to address various maternal and neonatal health issues. In India, this is in the form of either paid leave or cash transfer. Providing such benefits to pregnant women can lead to a reduction in infant and maternal mortality rates, an increase in breastfeeding, an improvement in the nutrition of the mother and child, and better physical and mental health of the child. Article 42 of our Constitution instructs the State to make provisions that guarantee maternity relief.
In India, there exists a valid fear of how pregnancy could affect your status of employment.
According to the ILO, the female labour force participation rate in India has been declining
since the 90s despite a growing economy and is due to various socio-economic factors which discourage women from engaging in employment or pushes them into sectors like domestic work. This can be addressed by making the workplace more friendly to women and can further give impetus to economic growth. Therefore, Maternity benefits also make economic sense as they can lead to an increase in the participation of women in the labour force. There are many legislations that seek to address the issues faced by working women during pregnancy and after childbirth. However, the benefits available to expectant mothers depends on nature of their employment.
The Maternity Benefits Act, 1961 guarantees a right to maternity benefits for women in the
organized sector. The Act regulates employment of women, in establishments employing 10
or more persons, before and after child birth and provides for maternity and other benefits.
Women are entitled to benefits under this Act if they have been employed in the
establishment for 80 days in the 12 months immediately preceding the date of expected
delivery. The Maternity Benefit (Amendment) Act, 2017 increases the duration of fully paid
maternity leave from 12 weeks to 26 weeks. Up to 8 weeks of this can be taken prior to
For adoptive mothers, commissioning mothers and women having two or more children this period is now 12 weeks. After the expiry of this leave period, women may also avail of a
“work from home” arrangement in consultation with their employer. It is also mandatory for every establishment with more than 50 employees to have a creche facility. Employers are also statutorily obligated to inform women of the maternity benefits available to them at the time of employment. Women can also not be dismissed due to pregnancy nor can they be dismissed during the period of absence. If a woman hired on a contractual basis is fired during a period of such leave then such dismissal would be invalid. This legislation however is only applicable to the formal sector. Therefore, even though India’s maternity benefits give women more respite than many countries in the developed world, this benefit is restricted only to a small percentage of working women.
Women in the informal sector are entitled to maternity benefit under S. 3(1) of the
Unorganized Workers Social Security Act, 2008. The Government has not notified any
schemes under this Act which provide for payment of maternity benefit on the basis of
wages. The Janani Suraksha Yojana under this Act seeks to reduce maternal and infant
mortality, but this is only a scheme to incentivize institutional delivery by disbursing cash
assistance to mothers that opt for it.
The National Food Security Act guarantees at least Rs. 6,000 for all pregnant and lactating
women. The scheme that provides this the Pradhan Mantri Matru Vandana Yojana only
extends to the first birth and only provides Rs. 5,000. Some states like Tamil Nadu and
Maharashtra have a higher amount of benefit. This scheme is meant to improve the
nourishment provided to the infant. There are other sectoral laws which provide maternity
benefit but most require a cumbersome registration process. 5 This combined with the inherently ambiguous nature of employment and the lack of a monitoring authority has made it difficult for these women to achieve their right to maternity benefits. A concerted organized effort from workers can ensure that these rights are achieved. In areas with active unions, these rights are more often secured.
The nature of these provisions shows us another facet of the economic divide in India. While the benefits to women in the organized sector are adequate, the condition of women in the unorganized sector needs to be addressed. There is a need to provide wage-based schemes and entitlements to them as well. The proposed Social Security Code is a good opportunity to provide for adequate, universal, and unconditional maternity benefits.