This post is authored by Soumya Pradhan, Student, National Law University Odisha
Introduction
The misery of old times today has been overridden by mothers increasingly taking roles as breadwinners of
the family. Mothers are managing dual roles of a breadwinner and of looking after the newborn. Though it cannot be disputed that a mother plays a greater role in taking care of the newborn but the responsibility of a father cannot be disregarded either. Fatherhood comes with the dual responsibility of being the breadwinner and looking after the wife and the child, as the mother is often, not physically and cognitively well-conditioned to return to work immediately after childbearing. The role of a father in a child’s development is as crucial as a mother’s. Paternity leave allows fathers to help the wife with the postnatal period and to look after the child. Yet, employee benefits and welfare schemes such as leave benefits are gender preferential in nature. In numerous scenarios such as, adoption by single fathers, and maternal mortality, the father is left as the primary and sole caregiver of the child. In such circumstances, the employee at times has to lose his job if the place of work provides no paternity leave benefits.
Leave benefits to fathers around the world
In both India and across the world, the need for paternity leave remains largely unaddressed. Among various objectives of the International Labour Organization (ILO), gender equality remains one significant objective. To promote the same, ILO has several mandates on gender equality. Gender equality has also been successfully preached as a core value synchronous to workplace culture. Though ILO has no legal instrument on paternity leave, there are some instances where ILO has foregrounded the significance of paternity leave along with maternity leave. For instance, a 2008 Campaign on gender equality titled “Protect the future: Maternity, paternity and work”, took note of the importance of granting paternity leave.
Furthermore, in a matter of K. v. ILO, delivered by the administrative tribunal of ILO, a staff member of the ILO contented that the staff regulations though provide for maternity leave and paternity leave. However, the leave rules did not include fathers having a child from surrogacy. It was observed that any male who is recognized as a father in the child’s birth certificate shall be entitled to paternity leave.
Very few countries in the world have paternity leave benefit policies laid down as a part of their law. Pakistan has a consolidated act for maternity and paternity leave benefits. As per the act, male employees are also entitled to take up to 30 days of fully paid paternity leave for the first three separate births.
In Cuba, 90 days of paternity leave can be availed by fathers at 60% of the pay. Other countries like Spain and Sweden also provide generous paternity leave. But the top-down view suggests that the countries of the world lie in a bleak situation concerning paternity leave benefits.
The Indian regime
As far as the legal framework goes in India, the Central Civil Services (Leave) Rule, 1972, lays down paternity leave benefits for male employees. The rule allows a male government servant with less than two surviving children, to avail of paid paternity leave for a period of only 15 days, during the confinement of his wife for childbirth, i.e., up to 15 days before, or up to six months from the date of delivery of the child. There are no other central legislations or laws in India which provide for paternity leave. Several state laws also provide for paternity benefits. However, these rules are limited to very few employees. For instance, Rule 103A of the Rajasthan Service Rules, 1951 provides for paternity leave for 15 days. The leave is not allowed in case of miscarriage including abortion. These benefits pose certain challenges as well. The leave does not extend to private corporations. Furthermore, such benefits are not given in various situations like miscarriage and abortion where the wife requires care and attention.
Even so, to maintain goodwill and to foster welfare for their employees, numerous corporate entities have their own parental leave policies which entitle fathers to avail paid leaves. Pfizer introduced a 12-week paternity leave policy which can be availed by both biological and adoptive fathers. Zomato among the few Indian companies has forged ahead to provide the exact same benefits to male employees as it provides to mothers for maternity leave. These benefits also apply in cases of surrogacy, adoption, and same-sex partners. Some companies provide ‘parental leave’, the terms of which are dictated by their internal rules. Companies such as Microsoft India provide up to 6 weeks of fully paid paternity leave for fathers, including adoptions and foster placements.
The judicial response
There has been an out-and-out absence of judicial scrutiny on men’s right to paternity leave benefits. Though in a lot of cases, the courts have affirmatively responded to, if whether fathers should be entitled to paternity leave. However, largely it remains a legislative and policy issue.
The court in the case of Dr Shanti Mehra v. State of Uttarakhand & Ors, observed that Paternity leave is a significant implement towards a father's contribution and obligation towards his child's development. The court observed the right to fatherhood as a fundamental right of fathers, ascertaining paternity leave, child care leave, and adoption leave under Article 21 read with Article 42 of the Constitution of India. Any discrimination in such circumstances between the father and the mother may result in a violation of Article 14 of the Constitution. Thus, the court held that a male government employee can avail of paternity leave for at least three weeks. Further, the court mandated the state government to grant 15 days' paternity leave to a male employee irrespective of the nature of employment, to enable the father to look after the mother and the child.
A recent judgment delivered by the Madras HC recognized childcare leave for parents as a basic human right. The court held that it is a fundamental human right of biological and adoptive parents to avail child care leave.
The way forward
The bleak gender preferential laws should be amended in order to ensure the welfare of the employees and their families. The narrowly interpreted and drafted rules can strip employees of leave benefits. One instance of this can be the case of K. v. ILO, also mentioned above in the article, where a father was ruled out of paternity leave because he was neither the biological father nor the adoptive father since surrogacy was not covered under the regulations.
One way of overcoming such challenges is to make regulations gender-neutral. This can be done through a general ‘parental leave’ which can be accompanied by maternity benefits. The idea behind this is to provide every employee leave benefits irrespective of their gender or the procedure of having a child. This would also allow homosexual couples and adoptive parents to avail benefits. Several corporate entities have such ‘parental leave’ policies in place. Some corporations make it even more gender neutral and equitable by providing leaves for ‘primary caregiver’ and ‘secondary caregiver’. For instance, Salesforce provides parental leave which is further classified into Primary caregivers who can avail up to 26 weeks of paid time off and Secondary caregivers who can avail 12 weeks of paid time off. The number of days can be assorted as per the primary and secondary caregiver.
The providence of marriage and embarking on parenthood for homosexual couples remains desolate as always. In countries where same-sex marriage is recognized, the idea of parenthood might remain obscure. Where both, marriage and parenthood are recognized, availing leave benefits might come as a challenge since the traditional standards grant ‘maternity leave’ or in rare cases, ‘paternity leave’ as well.
Fate can be reckoned for homosexual couples since they might not fall under the state’s or the organization's definition of a ‘parent’ who can avail leave and can be discriminated against. For instance, after a 2021 Bill, male homosexual couples in Ireland can now avail of adoptive family leave, which they were earlier deprived of due to legislative loopholes. However, for homosexual couples in India, the question parenthood of does not spring up as same sex marriage is unrecognized and LGBTQ+ couples have no stipulated right to parenthood. Thus, it remains equivocal as to whether paternal leaves will ever be extended to homosexual couples.
Fatherhood and leave benefits seem odd and like an asynchrony in the Indian workspace. A father grappling with taking a hiatus, to take care of his newborn and wife should not be a troublesome issue and must be made a standard practice at all workplaces. Paternity leave in India and across various other countries might not be a statutory mandate, but the corporate world has been making significant headway in relation to the same. However, the need of the hour is to strengthen the labour laws and bring out comprehensive leave benefit laws that take into account everyone and their needs.
Comments