According to experts, one in seven pregnancies worldwide ends in miscarriage, around 23 million every year, and the actual tally is sure to be "substantially higher" due to underreporting. Levels of care for women suffering miscarriage are highly uneven across countries, and even the affluent nations lack a suitable legislation on the issue.The situation is much worse in the current times. The Covid-19 pandemic has severely impacted access to hospital services and can further lead to a plethora of severe complications.
In fact, a joint study by ICMR-National Institute for Research in Reproductive Health (NIRRH) claims that the placenta, supposed to protect the foetus from infections, acts as a reservoir for SARS-CoV-2 and may lead to a sharp increase in miscarriages this year. It is also important to note the increased stress and anxiety caused by Covid-19 being particularly felt by ‘partners’ experiencing miscarriage.
India was the first country in the world to introduce a law for paid leaves post-miscarriage. Recently, hailing our example, New Zealand has started to offer a 3-day paid leave from work to mothers and their partners if they go through a miscarriage. The law in our country however, is only applicable to women. The Indian legislation dates back to 1961 when the Maternity Benefits Act, 1961 was conceptualised and has been amended in 2017 to bring much more benefits for the mothers. This is the only legislation in India that defines the term “miscarriage.”
Though the act of causing “miscarriage” has been criminalised by the Indian Penal Code, 1860; the term has not been explicitly defined anywhere in the code. Section 3(j) of the Act defines the term “miscarriage” and section 9 provides for 6 weeks of paid leave immediately following the miscarriage. Further, it grants one extra month of paid leave in case the miscarriage causing severe illness or other medical complications. However, grant of such a leave, under the Act, is subject to fulfilment of certain requirements. First, the miscarriage caused must not result out of an act which has been criminalised under the Indian Penal Code, 1860. Secondly, a medical certificate, signed by a certified practitioner is required. The wage rate of the leave is the same as maternity benefit which is the “average daily wage period of absence.”
Consequently, the State Government or an establishment itself can make rules and regulations for its employees and can make necessary alterations on the condition that they are in congruity with the 1961 Act and not affecting the main point at issue or the basic essence of benefits offered by it. In addition to the Maternity Benefit Act, 1961, there are other provisions as well that deal with paid leave.
The All-India Services (Leave) Rules, 1955 and the Central Civil Services (Leave) Rules, 1972 provide for paid leave post-miscarriage for not more than six weeks and 45 days respectively. In fact, the 7th Pay Commission in its 2015 report recommended to maintain status quo and explicitly stated that no further increase in benefits is warranted. In the global scenario; other countries have much less generous provisions.
In fact, the United States of America does not have any legislation pertaining to the issue and joins a very short list of countries like Lesotho, Swaziland and Papua New Guinea. To illustrate further, in Australia women can take unpaid leave if they lose a baby after at least 12 weeks of pregnancy.
In Britain, they are entitled to paid leave if they have a miscarriage only after 24 weeks. Nicaragua and Panama provide the leave (paid or unpaid) in accordance with the woman’s needs in each case. In El Salvador, miscarriages can put women in jail under the country’s total ban on abortion (the official term for a miscarriage is spontaneous abortion). Coming back, the Indian legislation has quite a few shortcomings which the policy makers are in no hurry to address. First, the employer has to fully bear the cost of paid leave, which makes hiring female employees a burden and can result in a devastating amount of gender discrimination in the entire working sector.
The State needs to keep a watchful eye on anything that might allow the female employee ratio to nosedive further. The pandemic has further amplified this inequality and has severely affected hiring and retention of female employees.
Secondly, there are instances where employers have denied granting paid leave post-miscarriage, even after the production of a genuine medical certificate. Private sector must keep in mind that a woman will not undergo miscarriage every fiscal. Thus, in terms of money or absenteeism, in most cases the company would have to bear the cost, may be once or twice in the entire lifetime of a woman employee. Thirdly, the act is not applicable to the unorganised sector and benefits only a minuscule percentage of women employed in the organised sector. Section 3(1)(b) of Unorganised Workers Social Security Act, 2008 does provide for maternity benefits but still no official scheme for this purpose has yet been notified by our dear Government.
Fourth, no legislation in India provides for paternity leave to allow the husband lend support to his wife in her period of recovery. In this case, Philippines is far ahead of us by granting a 7-day paid paternity leave in miscarriage cases.
To summarise, provisions for paid leave post-miscarriage is much appreciated and can be considered to be a visionary step, but execution will be the key. Law is no assurance that the situation of working women and men experiencing miscarriage will improve. For that to happen, the Maternity Benefit Act, 1961, needs to be implemented in letter and in spirit. In addition, paid leaves have to be universal, wage linked, unconditional and cover all women experiencing miscarriage. Further, additional recovery time can be provided by encouraging the policy of working from home.
The Supreme Court in the case of Municipal Corporation of Delhi Vs Female Workers (Muster Roll) [2002] has aptly ruled that even the daily wage workers must be entitled to the said benefits. Tax based solutions need to be worked out for reducing the financial burden on the employer.
In Singapore for instance, the paid leave cost is divided (eight weeks by employer and eight weeks public funds). This is important both for ensuring no woman is left out and to avoid gender-based discrimination in providing employment, due to the burden of having to pay maternity entitlements.
