Maternity Benefit Act: Which sector it does not apply to? Amendments, section, significance explained

A petition questioning the constitutionality of Section 5(4) of the Maternity Benefit Act, 1961, which provides that a woman who lawfully adopts a child under three months old is entitled to 12 weeks of maternity leave, was accepted by the Supreme Court on Wednesday.

The Public Interest Litigation (PIL) filed by Hamsaanandini Nanduri of Karnataka will be heard on April 28 by a bench chaired by Chief Justice of India DY Chandrachud. On the basis that it is "arbitrary" and "discriminatory" towards adoptive mothers and orphaned infants older than three months, the petition challenges Section 5(4) of the Act.

What is the Maternity Benefit Act? What does the provision say?
The Maternity Benefit Act was amended in 2017 to include elements that were not there in the original 1961 law for mothers who adopt. The Maternity Benefit Act was first approved by Parliament on December 12, 1961, to "provide for maternity benefit and various additional benefits" as well as to govern the employment of women in "certain establishments" during and after pregnancy.

According to Section 5(4) of the amended Act, “A woman who legally adopts a child below the age of three months or a commissioning mother shall be entitled to maternity benefit for a period of twelve weeks from the date the child is handed over to the adopting mother or the commissioning mother, as the case may be.”

 In 1973, it was expanded to include "any such institution belonging to Government" and "any establishment where persons are employed for the display of equestrian, acrobatic, and other shows." Originally, it applied to every establishment "being a factory, mine, or plantation." The Mines Maternity Benefit Act of 1941 and the Maternity Benefit Act of 1929 were both repealed.

In accordance with sub-section (1) of Section 4 of the 1961 Act, "No employer shall knowingly employ a woman in any establishment during the six weeks immediately following her delivery or her miscarriage."

A "commissioning mother" is a surrogate mother who "uses her egg to make an embryo implanted in any other woman," according to the definition of the phrase. No rewards are given to women who adopt children who are older than three months. This clause is contested in the PIL on the grounds that it is "arbitrary" and "discriminatory" towards adoptive moms.

The plea argues that Section 5(4) is completely incompatible with the goals of both the Maternity Benefit Act and the Juvenile Justice Act because it arbitrarily discriminates against orphaned, abandoned, or surrendered children older than three months in addition to being discriminatory and arbitrary towards adoptive mothers.

What effect did the 2017 amendment have?
Section 5 of the previous Act was modified by the Maternity Benefit (Amendment) Act of 2017 to permit 26 weeks of paid leave following childbirth, but only for biological mothers.

The amendment also added Section 5(4), which stated that mothers who legally adopt or use a surrogate for a child under three months are eligible to maternity benefits for a period of 12 weeks beginning on the day the child is given to the mother. Further, it inserted provisions to allow women to work from home under Section 5(5).

Does it not equally apply to all industries?
The Maternity Benefit(Amendment) Act of 2017 does not extend its benefits to women working in the unorganised sector.