Maternity benefits integral to right to life, health and equality
— Rituparna Patgiri
In a recent judgment on May 23, 2025, the Supreme Court set aside a Madras High Court order that had denied maternity leave to a government school teacher for the birth of her third child. The Court ruled that maternity leave is part of a woman's reproductive rights and requires constitutional protection.
This case once again highlights how maternity benefits are integrally connected to notions of social justice and inclusion. Historically, the provision of paid maternity leave is connected to the idea of the welfare state from the 1880s. It emerged as an outcome as well as a cause of women's influence in policy making.
Maternity benefits were first granted in welfare states such as Bismarckian Germany and France to deal with concerns about depopulation and maternal and infant health problems. This helped incorporate more and more women into the state apparatus as well as workforce.
In 1919, the newly formed International Labour Organisation (ILO) adopted the Maternity Protection Convention. It called for 12 weeks of paid maternity leave, free medical care during and after pregnancy, job guarantees upon return to work and periodic breaks for nursing.
Today, almost all countries have adopted this convention in some or the other form. These gains in terms of reproductive justice are the result of women's activism and push for social justice. Historically, the rights of working women were usually overlooked in policy priorities.
In the context of India, the history of women's reproductive rights and freedom dates back to the pre-independence period. The Maternity Benefit Act – drafted by B. R. Ambedkar, N. M. Joshi and M. K. Dixit – was introduced in the Bombay Legislative Council in 1929. This was in response to the presence of a sizable number of women workers in Mumbai's textile industry, who needed better medical care.
Mill owners were not happy because they felt that the burden of taking care of women's maternal care was unfairly placed on them. There was resistance to hiring women. Nonetheless, several provincial maternity benefit acts were passed in Madras (1934), Uttar Pradesh (1938), West Bengal (1939) and Assam (1944). In the 1940s-50s, Ambedkar pushed for the codification and unification of labour laws, including maternity protection.
In post-independence India, the Maternity Benefit Act was enacted in 1961. It regulated the employment of women in various sectors (including government agencies, private corporations and factories, mines, plantations, shops and establishments with ten or more employees) before and after childbirth, and provided maternity benefits. The Act granted benefits such as 12 weeks of paid maternity leave, no dismissal during maternity leave, no arduous work during pregnancy and nursing breaks after childbirth.
The Maternity Benefit Act of 1961 was amended in 2017. This act extended maternity leave to 26 weeks, facilitated the establishment of childcare facilities like creches in workplaces with 50 or more employees, and granted mothers the right to visit these creches during the day. It also required employers to inform women of the maternity leave provisions at the time of joining. These provisions were mandated by the 2000 ILO Maternity Benefit Convention.
However, some countries have also introduced paid parental or family leave policies. It extends the idea of paid maternity leave to make workplaces more gender inclusive. In 1974, Sweden became the first country to introduce parental leave – available to both parents – as a gender neutral policy. It went beyond the idea of the traditional notion that caregiving is solely a woman's responsibility.
Some countries in Northern Europe – such as Norway, Finland, Denmark, and Iceland – as well as other Eastern European nations like Estonia, Latvia, and Ukraine, provide one year of parental or family leave. There are only eight countries in the world (Marshall Islands, Micronesia, Nauru, Palau, Papua New Guinea, Suriname, Tonga and the United States of America) that do not guarantee paid family leave at the national level for either men or women.
In addition, the issue of paid maternity leave has constantly ignited debates about whether the responsibility to pay for the leave period lies with the state or the employer. In the absence of consensus, women continue to bear the brunt and face discrimination in both recruitment and promotion in workplaces. This is reflected in low female labour force participation, which stood at 37 per cent according to Periodic Labour Force Survey (PLFS), 2022–23).
Moreover, the India Discrimination Report 2022 by Oxfam India suggests that gender discrimination is the reason for 98 per cent of the employment gap between males and females. Employers are often prejudiced against women because of their caregiving and household responsibilities.
Although the Maternity Benefit (Amendment) Act, 2017 was a progressive step, its implementation remained sketchy. It applies only to the formal sector where less than 10 per cent of Indian women are employed. Awareness about its provisions is also low, and employers often fail to comply, particularly with requirements such as creche facilities.
Moreover, while work from home is permitted by law after the maternity period depending on the nature of the work, it is often left to employers' discretion. As such, women are dependent on the employers' for availing their legal rights.
Also Read | Women in judiciary: A mountain to climb
It may be argued that there is a need to extend the provisions of the Maternity Benefit Act to the informal sector, where the majority of Indian women, especially from marginalised sections, are employed. Women in informal sectors like domestic work, agriculture, construction sites, street vending, etc. also require protection of their reproductive rights in their workplaces.
The private sector too needs to be made more compliant in implementing the act. There have also been demands that maternity benefits should be granted to contractual employees in addition to permanent ones. In 2023, the Delhi High Court noted that the denial of maternity benefits is inhumane and violates constitutional rights. This was in response to the University of Delhi's arbitrary termination of the services of a contractual employee while she was on maternity leave.
As more and more jobs are privatised and contractualised, extending the act to both the private sector and contractual employees has become imperative.
While many countries have moved towards a more progressive parental or family leave policy, India does not yet have a comprehensive family or paternity leave law in place. Fathers do not get paternity leaves, which not only limits their ability to share caregiving responsibilities but also reinforces traditional gender roles that are biologically essentialist.
In this context, better implementation of the existing maternity leave policy, alongside a discussion over a comprehensive family leave policy, becomes important. After all, maternity benefits are an integral part of the right to life, the right to health and the right to equality making it a question of women's inclusion, social justice and constitutional protection of their rights.
How has the evolution of maternity benefit policies in India reflected broader shifts in the understanding of women's reproductive rights and social justice?
Despite the existence of the Maternity Benefit Act (2017), why does the implementation gap persist, especially in the private and informal sectors?
What are the implications of excluding informal sector and contractual women workers from maternity benefits, both socially and economically?
Do you think better maternity and family leave policies will help increase female labour force participation and reduce the gender employment gap?
How does the legal and policy framework for maternity benefits in India compare with global best practices, particularly in the Global North?
(Rituparna Patgiri is an Assistant Professor at the Indian Institute of Technology (IIT), Guwahati.)
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