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Bridging The Gender Gap In Healthcare: The Maternity Benefit (Amendment) Act, 2017

India has been struggling with gender inequality for a long time. In the Economic Forum's Global Gender Gap Index 2020, India ranks 112th[1]. This inequality infiltrates all aspects of human life in the country; from education to employment to healthcare.

Female feticide still remains a common practice in our country, and so does female infanticide. Throughout their lives, women struggle for their right to health, which is a direct cause and effect of gender disparity. Access to health care for women is significantly lesser than that of men. In a study, it was found that in 2016, out of 2,377,028 outpatients who visited AIIMS medical facility, only 37% women got access to health care, while the percentage for men was 67%.[2] Additionally, out of all the females born in the country, 25% lose their lives before reaching the age of 15.[3]

Right to Health is not explicitly mentioned in the fundamental rights guaranteed by the Indian Constitution, but it is an integral part of Right to Life under Article 21, as the right extends to more than mere existence of an individual. It encompasses their right to a healthy life and well-being.

In addition to this, Article 47 of the Indian Constitution, which is a part of Directive Principles of the State Policy, directs the State to raise the level of nutrition and the standard of living and improve public health. Fundamental Rights and constitutional provisions exist to ensure equality, liberty, and freedom of the citizens.

Women make up half of the population of India, but the pertaining gender inequality creates barriers for them, limiting their power to exercise their rights. For women to be able to live with liberty and dignity, and be able to contribute significantly to the national economy, it is of utmost importance that the gender gap be narrowed, and finally be closed.

Gender inequality leads to ignorance of a woman's need for physical and mental well-being. Being exposed to blatant discrimination and gender-based crimes affects a woman's health in the worst possible ways. Further, these women are unable to get the treatment they need and deserve.

The State has taken several steps to improve women's access to health care through various legislations, policies, and programmes. Some of the areas covered by them are abortion, maternity, mental health etc.

This article focuses on the Maternity Benefit (Amendment) Act, 2017, and discusses its provisions, the significant changes that were a part of the amendment, and further improvements required to make it more efficient.

The Maternity Benefit (Amendment) Act, 2017
The Maternity Benefit Act was enacted in 1961 with the objective of protecting women's employment during maternity and providing them with 'maternity benefit'. Under this, a woman who has been an employee in an establishment for a period of minimum 80 days in the last 12 months is eligible to take paid maternity leave so that she can care for her newborn child, and also for herself as a new mother. The Act was amended in 2017 as a result of changing times and recognizing the need for better laws for health care of women.

Before the amendment, the period for which a woman could take maternity leave was 12 weeks, which was increased to 26 weeks after the amendment of 2017, but this change applies only for two children, and if a woman is expecting for the third time, the duration of leave remains 12 weeks. Earlier, this benefit could be availed since 6 weeks before the due date, but now it has changed to 8 weeks. Further, in case of miscarriage, 6 weeks of recovery leave is given from the date of the incident[4] so that women get time to recover from it both physically and mentally.

There is also provision of 'Work from Home' after the expiry of the 26 weeks period, enabling a woman to work without having to be physically present at her place of work. This depends on the mutual agreement of terms between her and the employer. It reduces the chance of women leaving their jobs to take care of their children.

The benefit of Maternity Benefit Act amendment also bears gift for adoptive mothers and commissioning mothers (mothers who bear a child through surrogacy), providing them with 12 weeks of maternity leave to take care of their child. This is a very progressive step for the society as a whole as it recognizes the needs of adoptive and commissioning mothers. However, in the case of adoption, this is applicable only if the adopted child is a newborn or less than 3 months of age[5].

Another progressive change brought by the amendment is crèche facility for children between the age group of six months to six years[6]. It is mandatory for the establishments having 50 or more employees, but according to the Factories Act, 1948, factories where there are 30 or more female employees are required to have crèche facility. So, even if an establishment has less than 50 female employees but more than 30, the women get the benefit of crèche facility.[7] Under the Act, it is mandatory for the employer to inform female employees about the maternity benefit at the time of their appointment.

Criticism
The Maternity Benefit Act, 2017 has faced criticism on various grounds. The first and most apparent ground is that the law promotes patriarchy by putting the onus of child care only on mothers, completely ignoring the paternal factor even though childcare is a shared responsibility of parents.

Secondly, the benefit of maternity leave is only for women who are employed in the organized sector, and the benefit does not extend to those working in the unorganized sector, which constitutes majority of the female workforce of the country, do not get to avail the benefits of the Maternity Benefit Act.

However, the National Food Security Act states that all the pregnant women in the country are entitled to receive Rs. 6000 in cash as support for health and nutrition.

In addition to the above stated grounds, another reason for its criticism is that the cost of maternity leave in India is borne solely by the employer, with no support from the government or insurance agencies[8]. This creates a liability on the employer, and leads to them being hesitant to employ female workers.

While the Maternity Benefit Act, 2017 brought progressive changes for working women, and ensured that their employment is protected during the time of their pregnancy, it leaves out some important points that are important for uplifting women and closing the evident gender gap in the society.

Recommendations
Currently, male Central Government employees get 15 days of paternity leave, if the child is 6 months old or younger.[9]

Caring for the child is a mutual responsibility of parents, so there should be equality in the period of maternity leave for couples. The drastic difference between maternity and paternity leave promotes the notion that women alone are the care takers of their children.

Mandatory provision for paternity leave for men working in both organized and unorganized sector would not only help parents share the responsibility of raising and taking care of their child, but also lead to women continuing their job even after becoming mothers, as often women have to choose between raising a child and working.

Likewise, proper legislation should be made for women working in the unorganized sector so that they can take care of their health as well as their child's during and after pregnancy without having to worry about losing their job. If majority of the working women do not get to avail the benefit of maternity leave, then its enactment would be futile.

Furthermore, the cost of maternity leave should not be borne alone by the employers as it puts a lot of burden on them. Making provisions for sharing this cost with the State, welfare programmes, and other agencies would increase the efficacy of the Maternity Benefit Act, 2017.

Conclusion
Gender inequality remains a problem for growth and development of countries all around the world. Among other barriers that it creates for women to be able to exercise their basic rights, having limited access to health care is a major one. It affects their chance of survival, proper growth, reproductive health, life expectancy and standard of life. Even though health care is a basic right, it is unfortunate that gender-discrimination has denied this right to a large percentage of women.

The Maternity Benefit (Amendment) Act, 2017, has been one of the more progressive laws that have helped in uplifting women and empowering them. With its coming into effect, women working in the organized sector can now have paid leaves for a longer period of time during which they can take care of their child, and themselves.

However, as mentioned before, the Act completely ignores the role of fathers in raising a child, which leads to the assumption that the responsibility of raising a child is that of a mother's alone.

Changes need to be made to the Act, and a proper legislation must be passed for paternity leave for men working in both organized and unorganized sector so that there is a balance in the responsibility of parents in raising the child.

References:
  1. Neetu Chandra Sharma, India slips four ranks on World Economic Forum's Global Gender Gap Index 2020 (Dec 17, 2019
  2. DW, https://www.dw.com/en/access-to-health-care-a-distant-dream-for-most-indian-women/a-50108512.
  3. Women Health in India- Current Scenarios and Challenges (Vydehi Institute of Medical Sciences and Research Centre, https://www.vims.ac.in/blog/women-health-in-india/
  4. Maternity Benefits in India: For Whom, The Laws& Limitations, https://matrnity.com/maternity-benefits-in-india-for-whom-the-laws-limitations/
  5. Id.
  6. National Minimum Guidelines for Setting Up and Running Crèches Under Maternity Benefit Act, 2017,
  7. S.S. Rana &Co. Advocates, India: Creche Facility Under Maternity Benefit Amendment Act, 2017
  8. Pillsbury Law, https://www.pillsburylaw.com/en/news-and-insights/indian-maternity-benefit-amendment-act-2017.html
  9. Law Times Journal, http://lawtimesjournal.in/what-is-the-concept-of-paternity-leave-is-it-applicable-in-india/#:~:text=Paternity%20Leave%20in%20India%3A&text=The%20male%20Central%20Government%20employee,the%20child%20and%20the%20mother.&text=These%20provisions%20are%20also%20applicable,is%20less%20than%201%20year.

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