Maternity rights are the rights given to any woman expecting a child and to new mothers.

The Maternity Benefit Act, 1961 grants women maternity rights. This Act was amended in 2017.

A pregnant woman/new mother (see who can avail maternity rights below) is entitled to

The following rights under the Maternity Benefits Act:

1. Paid leave- A pregnant woman has the right to 26 weeks of paid maternity leave. Out of 26 weeks, maximum 8 weeks can be taken before delivery and the remaining can be taken after delivery. For more details, see below. (Section 5, Maternity Benefit Act).
2. Additional paid leave of 1 month if you suffer from any illness arising out of your pregnancy, delivery, or miscarriage (Section 10, Maternity Benefit Act).
3. No physically stressful work at the workplace which can cause harm to the woman or the foetus, such as long hours of standing (Section 5, Maternity Benefit Act).
4. Cannot be dismissed or demoted during her maternity leave (unless she is guilty of gross misconduct). If the employer dismisses her during her leave, he shall pay her the entire maternity benefits, i.e. the salary for the paid maternity leave (Section 12, Maternity Benefit Act).
5. Right to a creche- If an establishment has more than 50 employees, it must either set up a creche or have the facility of a creche nearby. The woman is allowed four visits a day to the creche, including her rest time (Section 11A, Maternity Benefit Act).
6. 2 Nursing breaks, in addition to regular rest time, until the child completes 15 months (Section 11, Maternity Benefit Act).
7. Medical bonus- Any pregnant woman can ask for a medical bonus of thousand rupees if no pre-natal or post-natal care is provided by the employer (Section 8, Maternity Benefit Act).

You can avail maternity rights if :

1. You are working in an organization as an employee
2. You are pregnant OR an adopting mother OR a commissioning mother (in case of Surrogacy),
3. Your organization has a minimum of 10 employees (of any gender), and
4. You have worked in the organization for at least 160 days in the period of 12 months before your date of delivery(Section 5).

Yes, every woman is entitled to paid maternity leave (for duration of maternity leave, see below).

How much:

You will be paid your salary/wages for the entire duration of the maternity leave. Your salary/wages will be calculated at the rate of average daily wage paid to you during the three months just preceding your maternity leave. The Supreme Court has held that ‘wages’ does not just mean contractual wages. It also means remunerations of all kinds, like cash allowances, bonus, etc.(B.Shah v Presiding Officer, Labour Court).

The employer should pay you the wages for your maternity leave prior to delivery, in advance, on producing proof of your pregnancy and for your maternity leave post-delivery, within 48 hours of production of proof of delivery of the baby (or miscarriage). (Section 6, Maternity Benefit Act).

Pregnant woman:

Every pregnant woman is entitled to a maximum of 26 weeks’ paid maternity leave. Out of 26 weeks, a maximum of 8 weeks can be taken before delivery and the remaining can be taken after delivery (2017 Amendment). Before the 2017 amendment to the Maternity Benefits Act, the maximum maternity leave was 12 weeks.

Mothers having 2 or more children:

For mothers with 2 or more children, the maternity leave is only 12 weeks and not 26 weeks. Out of the 12 weeks, only 6 weeks can be taken before delivery date. The remaining weeks are available post-delivery (2017 Amendment).

To note: The Act prohibits women from working during the first 6 weeks after giving birth or having a miscarriage. It is a compulsory leave.

Adopting mother:

An adopting mother is granted a maternity leave of 12 weeks from the date on which the child is adopted. This is only granted if the adopted child is less than three months old. There is no provision for leave for a mother adopting a child older than three months (2017 Amendment).

Commissioning mother(in case of surrogacy):

A commissioning mother is granted a maternity leave of 12 weeks from the date on which the child is handed over to her. High Courts have, on multiple occasions, confirmed that a commissioning mother is also entitled to maternity leave (Bombay High Court- Hema Vijay Menon v Union of India, Delhi High Court- Rama Pandey v Union of India, Madras High Court- Kalaiselvei v Chennai Port Trust).

A woman who suffers a miscarriage is given the following benefits:

- 6 weeks of paid maternity leave from the day of her miscarriage (Section 9, Maternity Benefit Act)

- Additional 1 month of paid leave in case of illness arising out of miscarriage. You will need to provide medical proof (Section 10, Maternity Benefit Act)

To note: The Act prohibits women from working during the first 6 weeks after giving birth or having a miscarriage. It is a compulsory leave.

A woman cannot be dismissed or demoted during her maternity leave (Section 12, Maternity Benefit Act).

Cannot be dismissed:

• A pregnant woman cannot be removed from the job during her maternity leave. Any act of dismissal by the employer during the maternity leave is illegal.
• In case the woman is dismissed during her maternity leave, she is still entitled to the wages and the bonus she will receive during her maternity leave.
• The only exception to this is if the woman is removed from her job due to gross misconduct. Gross misconduct has not been defined anywhere in the act, but it generally means misconduct of a serious nature.
Cannot be demoted:
• A pregnant woman cannot be sent to a lower position in her job during her leave. Also, her terms of service cannot be altered in any way to her disadvantage.

The Maternity Benefits Act does not apply to students of higher education (for eg- doctors studying post-graduation), as it is only for ‘employees.’ However, the courts in India have come to the rescue of studying mothers and pregnant women. In one case, the Delhi High Court held that Delhi University’s strict attendance requirement should be relaxed for pregnant candidates and new mothers (Vandana Kandari v University of Delhi).

The Supreme Court has held that even women who are working in the informal sector, on a contract basis or independently, are entitled to maternity benefits. For eg- Women who run cottage industries from their home to produce goods for a contractor, can claim maternity benefit from their contractor (Mangalore Ganesh Beedi Workers v Union of India).