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One controversial clause we all missed in the maternity Bill

Binjal Shah
22nd Mar 2017
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While the move is welcome, many of us initially missed the fine print -- that is, the situations the leave applies to... and to the ones it doesn't. 

Much like you, we also spent the last week in euphoric relief that the maternity Bill was passed by the Lok Sabha, granting women working in the organised sector paid maternity leave of 26 weeks, up from 12 weeks. This new law had several other clauses – it applies to all establishments employing 10 or more people, grants 12 weeks off to a woman who legally adopts a child under three months old, and to a commissioning mother who uses her egg to have a surrogate child. The Bill also requires every establishment with 50 or more employees to provide crèche facilities within a prescribed distance. And lastly – for the third child birth experience, the entitlement will be for only 12 weeks.

While the move is welcome, many of us initially missed the fine print that the leave applies just to the first two child births, and one’s first instinct is that this clause is intrusive, unfair, and irksome.

Possible explanations

The most rational theory that we can assume is the reason behind this clause, is the fact that the cap on the number of children for which you are eligible for maternity benefits probably has a lot – if not everything – to do with the demographics of the country. As India has a population problem, instead of an out-an-out China-esque ban, people are simply coaxed to have no more than two children through policies of this nature. In contrast, Sweden and Germany, which have a declining population, are extremely generous in providing maternity (and paternity) benefits, in order to encourage people to have more children and to be able to raise them without having to worry about their jobs, backed by the stanchion of policy.

But, the question remains – can the government dictate through policy, no matter how subtly, how a man and woman may choose to structure their family – especially with a policy that is punitive, rather than preventive in nature? It inflicts inconvenience after the child is born – and they are someone who certainly didn't ask to be born; but, they also bear the brunt of it. And the woman, who may have chosen to have a third live birth for whatever reason – be it planned, or due to the hassles of getting an abortion in India – deserves to be allowed to care for her baby.

“Some companies like Deloitte have already moved to a six-month maternity leave policy, a year or so ago,” explains Vaishali Kasture, Partner at Deloitte India, who is of the opinion that any such conditions placed on the maternity Bill are unnecessary.

“To put caveats around this rule is just not the right thing to do. And women in the corporate workforce are anyways struggling with issues like infertility, so as it is, conceiving is becoming a problem. So, I don't think putting these rules is a good idea.”

Another nuance, though rooted in bias 

Another debate surrounding the matter says that the clause is actually good for women. With no cap on the leave, companies would likely become wary of hiring women – outwardly or subconsciously – who are at an age where they are likely to have children, because of the "cost" attached to having a full-time employee on extended leave. But, it can be argued that women have been vulnerable to this backlash ever since the rule of mandatory paid maternity leave was instated, and will still be victims of biased hiring, if any such benefit, any number of maternity leaves are granted – one, two or three. As an employer as well as an employee at a global corporation, Vaishali states the ideologies in hiring that she has seen being adopted while making a hiring decision about a prospective woman employee – and if the fact that they will take maternity leave at some point is a factor.

In large corporates, even when the policy was three months, explains Vaishali, most women would cash in on their other leaves, and end up taking six months off at least. “Most global corporates and MNCs see this Bill as a mere formalisation of what has already been happening informally. I worry about the smaller corporations, where the culture is not mature – who may not be exposed to what is happening around the globe. There will be reservations rooted in bias – when hiring women of that particular age, the hiring manager will speculate. It's the writing on the wall. So, besides instating this rule, widespread sensitisation needs to happen hand-in-hand, so that women are not punished for availing their rights,” says Vaishali.

The issues runs even deeper

Vaishali further explains that very loose policies around maternity and child care exist today. Corporates do have policies, and yet, women struggle after their comeback and are thrown in at the deep end of the pool. Ninety percent of women leave within a year, because returnship programmes and sensitisation are just not mandated. “Besides, the child care provided isn't good enough. The quality is inadequate. In cities like Bengaluru, in IT and BPO companies, everybody works till 8-9 pm. That's the norm. You cannot then, have a daycare tie-up wherein their services end at 6 pm. There needs to be nuance in a company's policy – it's not just enough to provide day care, one must see if the day care facilities are conducive and actually feasible. During pregnancy, the woman is given all the support, but it ends immediately after the child birth,” she says, of the innumerable difficulties women anyway brave to keep their career afloat.

From a company's standpoint

From a moral standpoint, this clause is certainly problematic and infringes on a basic freedom – not directly, but indirectly. Having said that, it might be worth it to balance this point of view out as well, and look at it from the company's point of view. It is after all a lofty economic cost, to hire a woman who may take sabbaticals often because her stint with them happens to coincide with her opportune childbearing age. Neither party should be made to bear the complete burden of this – that is, neither the company and country that must take that strain on the exchequer nor the woman, who must see her career suffer in order to fulfil her motherhood ambitions.

A solution that the government missed

There is a way that this situation could have been avoided – a solution that the drafters of the Bill completely missed.

As of now, the common thread running through all the clauses of the policy is that the onus of raising the child is on the mother alone, and only her career feels the heat, and solely her life is riddled with hardships in order to strike a work–life balance at the delicate time of new motherhood.

This silence on paternity leave is deafening, and it's waiting to be pierced. If the government introduces laws surrounding paternity now, it wouldn't matter if Indian sensibilities are ready for it yet; policy level advocacy of co-parenting and sharing child-rearing responsibilities will set the ball rolling in changing mindsets like nothing else.

We have a few model countries to emulate in this regard. In countries like Sweden and Norway, corporate mandates are such that up to a year of paid leave is provided upon child birth. What's more, policy dictates that this leave can be split between the partners who are co-parenting the child.

“If the woman wants to return to work in a month, her partner can take the remaining 11 months off. This is the future.”

Instead of these artificial barriers introduced in order to appease the women and the corporates – like two child births only, and only women being granted leave – the ideal policy would be to even get 12 months perhaps - but to allow for them to be shared by the spouses. “This way, one can even have five kids, and it will not affect a single individual's career, and the burden can be shared not only by the spouses but also the companies,” she states.

Today, men who are also supportive of a woman's career, and want to contribute to filial responsibilities, will be able to do so more unabashedly, backed by policy. The future is co-parenting, sharing the responsibilities. The woman has to carry the baby for nine months as it is – it's only fair that there is a co-parenting option after the child is born – and with no caps.

“I am a personal believer of granting a woman a year off, if you want her to rejoin in full force. Even for comebacks, there should be policy mandates around returnship.”

Remembering why this bill exists in the first place

Most of all – the following idea, which is the aim of these policies, should be underlined over and over. And that is this – companies must understand that they do not exist in a vacuum. They are part of society, and employ men and women who have vivid personal lives beyond their jobs, and have roles to perform in society as well. Until (and if at all) societal norms change drastically, the family unit – principally a man and a woman coming together as companions to provide stability in a sexual, emotional, intellectual, and social way – is the most basic social organisation or unit of any society. Hence, it is more than likely that most of their employees will undergo this natural life cycle and choose to start a family someday, which may also entail having children. This should not be ‘their’ problem alone, it is the collective responsibility of the society that the company is also very much a part of, to make their lives easier and provide them the means to create a balanced life and thrive in each aspect of it. And they must bear in mind, that neither part of their life is less important or less dignified than the other.

Companies like IKEA have implemented progressive parental leave policies. Tathagata Satpathy (BJD) termed the Maternity Benefit (Amendment) Bill, 2016, a social bill and said that instead of reducing the period of leave from 26 weeks to 12 weeks after the second child, the Centre should state that there would be 26 weeks leave up to the third child, and after that no leave would be provided. He too sought paternity benefits.

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