Lack Of Paternity Leave Is Negating The Purpose Of Maternity Leave

Sanskruti Madhukar Kale

2 Dec 2023 8:42 AM GMT

  • Lack of Paternity Leave | Maternity Leave

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    Childbirth is a profound process that transcends the mere act of bringing a new life into the world. It is a transformative experience that significantly shapes the identity of individuals, particularly that of the parents. Therefore, to assist the parents in dealing with various emotional, psychological, and social transitions, the concept of “maternity leave” was implemented. Recently, the Rajasthan High Court extended maternity leave benefits even to mothers who have commissioned a child through surrogacy. The High Court acknowledged that maternity leave is granted not solely for postpartum recovery but is inclusive of the multiple responsibilities that follow childbirth. Therefore, this article argues that the term “maternity leave and child birth,” as interpreted in this judgement, consolidates the “paternity leave” discourse. It is further argued that until the leave is extended to both parents, the objective of enabling women to be part of the workforce without compromising the child's needs will not be successfully achieved.


    In India, a woman is eligible for a maternity leave of 26 weeks i.e., 180-182 days in both – the public and private sectors. Section 5, sub-section 4 of the maternity benefit act 1961 was amended in 2017 to state that “a woman who legally adopts a child below three months or a commissioning mother shall be entitled to maternity benefit for twelve weeks.” However, the Rajasthan High Court recently granted a full-fledged maternity benefit of 180 days to a mother who has obtained a child via surrogacy.

    The High Court was faced with the question of whether a distinction can be made between a natural mother, a biological mother, and a mother who has begotten a child via surrogacy while granting maternity leave. Answering this, the court held that the term “maternity leave” is based on two principles: firstly, to provide a female employee with a certain amount of time off after the birth of the baby to take care of herself and the new-born, and secondly, to develop the bond of love, care, and affection. It was held that the provision relating to the grant of maternity benefits is a beneficial provision intended to achieve social justice. Therefore, it must be construed beneficially. Moreover, the High Court also interpreted the right to motherhood and “right of every child to full development” as an integral facet of the right to life under article 21 of the constitution of India. Therefore, if the government grants maternity leaves to an adoptive mother, then denying the same benefit to a mother who begets a child through surrogacy is unjustifiable.

    By virtue of this judgment and similar judgments by five other High Courts, the beneficial provision of maternity leave has been interpreted from a “child-centric” perspective. The courts have walked away from the parochial understanding of the term maternity, which restricted the purpose of the provision to recovery of the health of the mother due to childbirth, and have started acknowledging the significance of the leave for fostering a bond of affection and overall development of the child.

    Importance Of The Judgement In The Context Of Paternity Leave Discourse

    In India, according to The Central Civil Services (Leave) Rules, 1972, a male government servant is eligible for paternity a leave of 15 days, however there is no law which mandates paternity leaves in the private sector. In this context, the Rajasthan High Court's judgement is important for two primary reasons. Firstly, granting equal maternity to mothers, regardless of whether they have given birth to a child or not, has opened doors for the relatively stagnant discourse around paternity leaves. Secondly, it addresses the purpose behind implementing the concept of maternity leaves, i.e., fulfilling the promise of equality to all the working women who choose to be mothers.

    In 2017, a private member's bill addressing paternity benefit-related issues was introduced in the parliament. The bill was aimed at providing gender-neutral legislation to ensure parental benefits to the natural parents, adoptive parents, etc. However, the bill was not passed. While denying a paid paternity leave to the fathers, it was argued that “maternity leave” is granted because the mothers need time to recover from the gestation period, and ever since fathers do not undergo any such biologically draining process, they cannot be granted the same benefits. However, the recent judgment is cardinal in this context, because it explicitly establishes that “a leave” is not restricted to “childbirth” alone.

    The judgement has changed the focal point of the “leave” discourse from “childbirth” to “child development.” Therefore, the discussion around paternity leave can be backed by data, which indicates that, active involvement of fathers during the early years positively impacts the child's cognitive development. Research also shows that fostering a bond with fathers improve the emotional and psychological health of the children, thus increasing their self-respect and satisfaction in future life.

    Furthermore, the judgment highlights that the leave is offered to stay true to the promise of equality. Maternity leave supports the idea that a woman can be a mother without compromising her career trajectory. It aims to mitigate the career gap that women might otherwise encounter and foster the retention of female talent within the workforce. The judgement also addresses that maternity leaves fall within the ambit of article 42 of the constitution, and its purpose is to enable the woman worker not only to subsist but also to make up her dissipated energy, nurse her child, preserve her efficiency as a worker and maintain the level of her previous efficiency.

    However, when the leave is denied to the father and is granted to the mother alone, the purpose of providing “rest” to the mother is entirely negated. In this way, the child is left with the mother, and rather than recovery or rest, she is expected to carry out the child-rearing responsibilities and the household chores all by herself. In this manner, a message is inadvertently conveyed that although both parents play a crucial role in child care, the onus is still disproportionately placed on mothers. Consequently, women continue to bear the primary burden of unpaid caregiving within families. Therefore, when the granted leave ends and the women are confronted with the task of balancing childcare responsibilities and professional commitments, they are more prone to leave their jobs, reduce their working hours, or step away from leadership positions. Thus, contributing to broader gender inequalities in terms of income and influence.

    Therefore, to achieve the objectives behind maternity leave in its truest sense, paternity leave should be granted. Research has shown that maternity leave taken by women has led them towards reduced chances of pay raises and receiving promotions. Thus, men taking leaves to be dedicated caregivers supports women to heighten their careers as it reduces gender discrimination in the workplace, including the pay gap. Because gender equality at the workplace cannot be achieved without achieving gender equality at home.

    Paternity Leave Provisions In Different States Of India

    There are a few states in India which have formulated specific provisions regarding paternity leave. In 2017, the state of Maharashtra announced that the male employees who are widowers or whose spouses are bedridden thus unable to care for their children are entitled to avail a special 180-day leave until the child reaches the age of 18. This leave can be granted for two months per year in three separate intervals. However, this provision is applicable exclusively to the public sector.

    Kerala grants a paternity leave of 10 days each for two children to its government male employees “at the time of delivery of his wife.” Furthermore, according to section 103a of the Rajasthan service rules, 1951, male government employees are eligible for paternity leave of 15 days which can be granted up to a maximum of two times.

    In July 2023, chief minister of Sikkim announced one month paternity leave to its male government employees, and similar provisions are implemented by the state of West Bengal in 2016. In June 2023, Karnataka government made single male parents eligible for a 6 months paternity leave. However, the provisions specify that if the male gets married during this leave, their leave will automatically end from that day. In September 2023, Uttarakhand government announced that single male employees adopting a male child under one year, will be granted 180 days of child adoption leave. The state also made contractual and outsourced employees eligible for a 15-day paternity leave, aligning with government employees.

    One might argue that there are several states which provide paternity leave to several male employees, which indeed is true. However though intended to be beneficial, these provisions fall short in providing comprehensive and satisfactory solutions, thus are not really helpful in the longer run due to the following reasons:

    Firstly, recently when the Madras High Court held that “refusal of paternity leave to a father violates the child's right to life under article 21,” the High Court did not mean fathers who are government employees alone. It is high time that we acknowledge the social reality of India which is that, majority of the Indian workforce operates in the private sector and absence of a legal mandate for paternity leave in these sectors contributes to a sense of inequality in family support.

    Secondly, the conditional nature of the aforementioned leaves upon specific circumstances like widowhood or a bedridden spouse, restricts the inclusivity of paternity leave. Along with that, by linking paternity leave to the presence of the spouse, health status of the spouse or specific circumstances such as being a single male parent, we perpetuate the stereotypes that men's caregiving role as fathers is an exception rather than an intrinsic responsibility.

    Thirdly, the lack of uniformity throughout the country is also concerning. Piecemeal implementation perpetuates a fragmented system, creating disparities among states in providing family-oriented benefits.

    Additionally limited duration of paternity leave ends up making the entire endeavour tokenistic. For instance, Sikkim's one-month paternity leave, though an improvement, may fall short in providing fathers with sufficient time for meaningful engagement in the early stages of a child's life. Along with that, ongoing medical appointments, vaccinations, and the gradual adjustment to parenthood requires a more sustained period. Therefore, when a father leaves for the job after one month, all these responsibilities fall on the shoulders of the mother alone.

    While the number of days allocated to the mothers can be partly justified, considering the physical recovery that the body needs after childbirth. However, when a mother who has begotten a child through surrogacy is also made eligible for 180 days of maternity leave, then the stark disparity between the maternity and paternity leave policies exposes the potential patriarchal biases inherent in their formulation.

    These kinds of policies perpetuate the innately problematic narrative of “mothers are superhumans,”. Mothers are no celestial creatures with boundless strength and inexhaustible energy. Instead, they are mere mortals, just like the fathers, navigating a maze named parenthood.

    What this judgment makes clear is that, the court sees women who get a child through surrogacy as no different from women who gives birth to a child. This way, the courts have definitely tried to robustify the existing maternity leave mechanism; however, it would reap no sustainable results if the courts don't start seeing fathers as integral and equal partners in the parenting journey.

    The Author is a Second year law student at Gujarat National Law University

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