Stillbirth and Miscarriage: Looking at Maternity Benefit Regime from Purposive and Social Lens
Motherhood is a personal choice for women, which is often accompanied by many intricacies and challenges for the women who embrace it. In India, the Maternity Benefit Act 1961 (Act) is the cornerstone legislation governing the provision of maternity benefits to women in situations of pregnancy, adoption, miscarriage, surrogacy, tubectomy, and illnesses arising out of the same. Amendments to the law in 2017 inter alia extended paid maternity leave to 26 weeks from 12 weeks for a pregnant woman having less than two surviving children and incorporated the option for new mothers to work from home subject to an arrangement in this regard with the employer.
In this article, we examine the benefits that will accrue to women in an unfortunate event of stillbirth. We discuss the provisions of the Act, including the limited ambit of the definition of ‘miscarriage’ under the law and the coverage of ‘stillborn child’ within the definition of ‘child’ which in turn has resulted in some confusion as to whether the delivery of a stillborn child could, in any circumstance, allow a woman to avail the highest quantum of maternity leave allowed under the law for delivery of a ‘child’ (or whether the same would allow her to avail only miscarriage leave which is of less duration). We also seek to cover the human resource angle to these situations by examining certain pre-emptive measures that employers may take especially in complicated pregnancies, at a time when cases of miscarriage appear to be on the rise particularly among working women for various reasons.
Understanding the statistics around stillbirths and miscarriage
Cases of neonatal deaths and stillbirths are not uncommon in India. Despite encouraging reductions in recent years, according to the United Nations Inter-Agency Group for Child Mortality Estimation, 59% of worldwide neonatal deaths occurs in South Asia. In India, 33 of every 1,000 babies are stillborn. Globally, research has indicated that work stress has been a significant contributor to an increased risk of miscarriage. With studies showing that work related stress has only increased in India with the female work populace being more stressed than men, it is imperative for employers to become more mindful in terms of securing the interests of their female workforce, particularly in situations of pregnancy by creating a conducive working environment and understanding their rights under the Act.
Stillbirth and miscarriage: The legal anomalies and considerations
The Act remains silent on the quantum of maternity leave that should be made available to a woman in a case where the child dies during birth or soon after birth. Anomalies within the Act may raise concerns leaving the woman in a legal limbo regarding paid leave and wages that she is entitled to during such leave period.
One critical anomaly existing in the Act is concerned with its definition of ‘miscarriage’. The Act defines ‘miscarriage’ as ‘expulsion of the contents of a pregnant uterus at any period prior to or during the twenty-sixth week of pregnancy’. Therefore, so far as the expulsion occurs prior to or during the 26th week of pregnancy, it would be covered under the ambit of ‘miscarriage’ and would entitle a woman to be allowed paid leave for miscarriage for a period of 6 weeks from the day following her miscarriage. However, the Act does not expressly clarify whether this would apply to a miscarriage occurring after the 26th week. Interestingly, the definition of ‘child’ includes a stillborn child, but the Act does not go on to deal with stillbirth, or miscarriage post the 26th week of pregnancy.
Stillbirth
In interpreting the Act, courts have time and again considered the purpose of the statute and the mischief it aims to suppress. The argument in favour of granting a woman, who gives birth to a stillborn child or whose child passes away shortly after birth, the full 26 weeks of maternity leave, is rooted in the Act’s benevolent nature. Judicial precedents have consistently emphasized that maternity leave is not solely for the child’s care but also for the mother’s well-being. In one such case (Geetha v Kerala Livestock Development Board Limited [2015 SCC Online Kerala 71]), the Kerala High Court has observed that the Act focuses on conception, gestation and delivery, and the intent here is to protect the health of the pregnant woman, and the leave envisaged under the law is not for bringing up the child.
The 26-week paid maternity leave for a pregnant woman relates to the ‘delivery’ of the child (which includes a still-born child). Therefore, the only instance recognised by the Act wherein the whole of the 26-week maternity leave will not accrue is when the woman dies before the delivery (in which case she will receive the benefit only up to the day of her death). Once the woman delivers the child, the benefit will accrue for the entire period (unless both the woman and the child die). Given that the exception to the receipt of 26-week maternity benefit is clearly set out under the Act and such exception does not include a case where a woman remains alive after delivery and only the child dies, it can be said that in such case also, the woman will be entitled to the maternity leave benefit in its entirety under the Act.
Miscarriage post-26th week
As noted above, the term ‘miscarriage’ has a specific definition under the Act which does not cover miscarriage post the 26th week of pregnancy. This leaves us with the question of whether the analysis undertaken in respect of a stillborn child above could also extend to the said situation. It may be noted that there is no comprehensive explanation under the Act as to when a foetus could be deemed as one having a viable life. However, there are judicial precedents to suggest that the formation of the child becomes complete after 180 days, hence at this stage, the embryo in the womb of the mother could be considered as a ‘child’ having a viable life (reference PP Abhulasees and Others v Abdumanaf and Others [2018 ALLMR 1 100 – Kerala High Court]). Considering this position, a view may be taken that the benefit of 26 weeks of maternity leave (or 12 weeks where a woman has 2 or more than 2 surviving children) could possibly apply to a situation of miscarriage occurring post-26th week of pregnancy.
While the precedents referred to above have not emanated from the Act itself and relate to other statutes, these may serve as useful reference points for the competent authority to adjudicate claims under the Act. Such being the case, the employer should carefully evaluate the stage in which the miscarriage has unfortunately occurred so as to appropriately determine the period of maternity leave in such cases.
Key human resource considerations
Considering the statistics discussed in this article, it is important for an employer to adopt an empathetic approach generally in situations of pregnancy and not merely focus on the benefits to be provided at the time of unfortunate cases of stillbirth and miscarriage, so that the possibility of such cases occurring on account of stressful situations at work could be avoided. In situations of pregnancy, the company should avoid giving any work that is of an arduous nature (i.e., which may cause excessive strain on her physical/mental health). The work hours of the woman may be regulated, and it may be ensured that the woman is getting sufficient breaks to take rest. The reporting manager / human resources team should be in touch with her on a regular basis to check if the work or volume thereof is, in any way, becoming strenuous for her. Any feedback received from the woman should be documented for future reference. Overall, developing a standard operating procedure and organising sensitisation training for reporting managers / functional or departmental heads to consider pregnancy empathetically and sensitively helps in bringing about an attitudinal shift, thus taking a step forward in applying the law on maternity benefit in letter and spirit.
