Ananya Garg*
Source: Linkedin
Oocyte cryopreservation and single motherhood bear witness to a generation’s change in women’s exercise of reproductive autonomy over structurally discriminatory labour markets. But the Maternity Benefit Act, 1961 is grounded in a linear gestation–delivery–recovery model, obscuring the medical, economic, and social costs involved in assisted reproduction and care without the support of a spouse. This article questions the silencing of the law, not as passive omission, but as structural intent, contending that the statute punishes non-normative nurturing decisions by failing to provide paid leave for egg freezing or single-parent care, as a legitimate employment–induced burden. Drawing on feminist legal scholarship, the article makes the case for a statutory reorientation, one which perceives such reproductive labour fully worthy of protection, and reads maternity as a space of autonomy, not conformity.
I. ABSTRACT
Employee exploitation, in the name of hustle culture, has been increasingly normalised. But, for employed women, this has been a reality long before the concept came to limelight. They have always been told to just ‘want it’ badly and to try ‘hard enough’ for meticulously balancing their professional and parental obligations. Failing to realise how the system is rigged to their disadvantage, they can neither alter their biological clocks nor trust the employer to accommodate their reproductive choices without being prejudicial towards their career advancements. This is where medical developments offer the ideal solution of ‘Oocyte Cryopreservation’, an assisted reproductive technology (‘ART’) which allows women to voluntarily delay fertility while engaging their energy towards progressing in their profession. But, the Maternity Benefit Act, 1961(‘Act’) fails to mandate paid leave provisions, derecognising the hardships associated with egg-freezing and single motherhood burdens, making such a revolutionary resolution falter in implementation.
This research article advocates for the inclusion of paid maternity leave provisions for oocyte cryopreservation and single motherhood. Divided into four parts, it begins by deconstructing the obsolete presumptions made under the Act to have lost touch with modern social realities of women, which requires such leaves to be granted to ease stressful ART procedures and burdens of mothers without spousal support, ultimately, requiring proactive adoption of a rights based approach by all stakeholders to achieve workplace equity.
II. THE OUTDATED ASSUMPTIONS OF THE MATERNITY BENEFIT ACT
Modern family frameworks no longer exist in the linear fashion of co-parents undertaking childcare responsibilities coextensively. There is significant rise in adults, especially females, opting for single parenthood voluntarily, by not aligning their aspirations with heteronormativity. Such radical shift in ideology can be attributable to a combination of aspects including lack of marriageable partners, female professionalism and prevalence of reproductive autonomy in the society. By choosing a non-traditional route to gain a traditional end, it can’t be a move motivated purely as a rejection of patriarchy, but a feminist one of empowerment. As young girls, they too believed in the mirage of balancing their career goals alongside family bonds, just like men can. Little did they know the same almost being inconceivable when market forces, inherently bearing a marked gender indicator, purposely strive to deprive women of such prospects.
The Maternity Benefit Act, reinforces societal expectations to conceive children via the biological route, while engaged in a heterosexual marital relationship. By denying differential standards of treatment between burdens of conventional pregnancy, and unorthodox reproductive choices such as oocyte cryopreservation and elective single motherhood, it basis its benefits on outdated assumptions disadvantageous to women opting for fertility preservation, made medically necessary for career advancement. The same is evident from the straight jacket gestation-delivery-recovery model under §5 and §6, which hinge on the ‘date of expected delivery’ for the awarding of maternity benefit, viewing pregnancy as the only locus of reproductive labour. This presumption of a linear timeline of conception, gestation and childbirth is typical to biological pregnancies, making no allowance for women undergoing oocyte cryopreservation with the sole purpose of delaying pregnancies via fertility preservation rather than immediately conceiving following the procedure, ultimately rendering the prescribed time frames redundant for them. Further, the silent exclusion of single mothers, by offering no tailored protections or recognition for their added economic and social burdens in absence of a partner to share caregiving responsibilities with, creates a legal invisibility by design, not by overt denial. Lack of paid leave provisions specifically designated for egg-freezing treatments and twofold single motherhood responsibilities, coerces women to utilise other leave entitlements like for sickness when courts expressly bar such an equation, depriving women the autonomy to avail them, as available to male counterparts. The inclusion of maternity leave following surrogacy and adoption via amendments to §5(4) of the statute, is evidence of the law being inadequate, requiring revisions to include modern advancements.
Even though the Act itself was enacted to ease the integration of women into the workforce as they departed from home by providing for their child bearing needs along with maintaining financial job security, it has lost touch with its empowering edge by failing to accommodate the lived realities of a modern working woman, faced with the proverbial sword of climbing the corporate ladder against her biological ticking clock. The employer treats her as a ‘mushroom’ worker, one who sprouts from nothing and does so just in the workplace and disappears when leaves it, without any caregiving responsibilities. This prototype fits well for a man who wouldn’t have to rearrange his schedule to provide for caregiving obligations as they typically fall upon the woman, based on division of gender roles, thus, not impacting him. But this system crumbles when the woman who was primarily responsible, now joins the workforce without giving up unpaid caregiving work, requiring policies balancing work and household commitments to be put in place by the employer under statutory mandate.
As oocyte cryopreservation helps women gain hold on their procreative destiny without the fear of running out of time, it can help level the playing field and achieve career equality. Considering the treatment entails repeated cycles of invasive egg retrieval and intense hormonal therapy with substantial chances of disappointment, legal provisions providing for leaves must extend beyond childbirth, aimed at easing the physical and mental fatigue undergone during the process. Increasing trends of women opting in favour of such ART procedures to square reproductive autonomy with professional ambitions can be traced, requiring the legislative blind spot of blatant absence of statutory safeguards to be swiftly remedied for the law to remain ahead of shifting reproductive realities. Motherhood and a profession are not mutually exclusive alternatives, particularly when the latter is conspicuously absent from discussions of men, with the option to postpone a family to when she has a better grip on her professional trajectory being an alluring proposition. If women are inclined towards planning for their success at all frontiers using medicine, then the law should be a facilitator by easing their burdens through paid maternity leave for oocyte cryopreservation and single motherhood, not obstacles in achieving their full potential.
III. OOCYTE CRYOPRESERVATION: PAID ART LEAVE
The extension of maternity leave for procedures transcending natural childbirth and biological caregiving obligations has been recognised for surrogacy and adoption, acknowledging the ambit of the Act to be made broader as the societal realities undergo a shift with growing acceptance of ART. By applying the principle of comparable burdens, oocyte cryopreservation imposes similar medical impediments on females, if not greater, requiring the law provide paid leave provisions, supporting the process. It takes six weeks for a single retrieval with multiple birth control pills and hormone boosters administered to galvanise the ovaries into generating more eggs, temporarily turning off body’s natural hormones. The treatment is reported to cause blood clots, nausea, organ failure, bloating and ovarian hyperstimulation syndrome. The eggs are then extracted by a needle with risks of contracting an infection or causing of bleeding in internal organs. Dreary statistics don’t depict the anguish and psychological stress following such ART procedures, aggravated by the frequency of their debacles.
Recognition of reproductive autonomy as a fundamental right under Article 21, mandates egg-freezing specific paid leave as a natural progression due to fertility preservation being the exercise of such autonomy. Courts have propagated social justice by providing special attention to full and healthy maintenance of the woman, recognising CEDAW, and ILO Maternity Protection Convention, being inclusive of diverse reproductive choices, as a commitment to guarantee impartial maternity policies, but the Indian legislation still lacks such explicit provisions. Global practices have taken a proactive approach to realise their protective obligations for fertility related procedures. Japan grants five days of paid leave to public employees undergoing fertility treatments, Belgium provides job security through protection against dismissal during such procedures, South Korea has partial paid leave structures by amending Gender Equal Employment and Work-Family Balance Act, and the UK considering a fertility treatment leave bill.
Whatever is required to help a working woman give birth, the employer must understand and be compassionate towards the physical challenges she would encounter fulfilling her job responsibilities, without being deterred by the threat of social repercussions following her forced absence. Drawing on this workplace lifecycle investment principle wherein obligation is placed on the employer to realise burdens arising out of employment constraints and engage career-prolonging mechanisms for sustained workforce utility, labour law must treat fertility preservation through oocyte cryopreservation as a workplace-driven reproductive burden for females, triggering compensatory leave as the employer’s responsibility. There exists no justification for a difference in employment law response for reproductive crises versus other employment interruptions like sick leave, accident leave, force majeure leave, when the very existence of the Act acknowledges that biological reproduction creates a legitimate employment burden requiring legal protection. By age thirty-five, a woman loses 95% fertile eggs, putting an implied choice between career and motherhood, in absence of the employer supporting medical advancements mitigating such a dilemma. To assist its employees in making decisions about starting a family that align with their professional life goals, organizations like Accenture and Myntra are incorporating support for egg-freezing into their employee benefit plans, even without a statutory mandate.
IV. EXTENDED MATERNITY LEAVE FOR SINGLE MOTHERS
The time distribution for satisfying professional and family needs is substantially reduced in single-parent households due to absence of spousal support. A deeper analysis reveals a single women’s two-fold burden to be further consolidated as opposed to men. This is so because even though both sexes invest equal time in doing paid work, men tend to outsource their caregiving tasks, reducing their involvement in the domestic sphere, as opposed to women who undertake such tasks themselves. As the sole parent responsible to provide for the child, the female’s employment becomes indispensable along with the necessity of dedicated caregiving space to safeguard the principle interests and development of the offspring. In India, courts have favoured individual interests outranking organizational aspirations, signifying special attention to a child’s right to family life by the state, responsible to employ safeguards inflicting least harm and recognise the extraordinary obstacles faced by single mothers. This in turn makes the access, duration and enjoyment of maternity leave the focal concern in achieving perfect synchronization between both her spheres.
In this backdrop, the Act fails to accommodate women choosing to become single mothers via in vitro fertilization with donated sperms. The courts realise the emotional challenges faced by single mothers feeling destined to be isolated as the system offers no financial or social support, along with asserting that they shouldn’t be made to choose between employment and motherhood while navigating dual-parental responsibilities alone. But, due to the lapse of the Act in acknowledging the same, yet receive the same standard maternity leave as partnered women breaching the principle of parental labour parity, requiring sub-classification with extended maternity leave in addition to the mandated twenty-six weeks, thus, favouring the entire class without disproportionately hampering a part of it. The ILO Workers with Family Responsibilities Convention, addresses employers to tailor employee obligations keeping in mind dependents’ care receiving burdens arising out of diverse family arrangements rather than having a blanket static provision applicable to all. Slovakia provides additional maternity leave to single mothers in comparison to those with spouses and Azerbaijan awards extended partially paid social leaves.
The apparent disadvantage is more so pertinent due to the absence of transferable paternity leave disproportionately impacting single mothers in industries wherein paternity leave exists, perpetuating a functionalist conception of equality. Recently, the Spanish courts ruled single mothers to be entitled to the paternity leave of her partner if she had one, as the duration and intensity of the needs of a newborn remain the same, regardless of the family model, treating every child equally. Further, no provisions are in place mandating a parental leave after the utilisation of maternity leave, as the latter aims to protect employed females through pregnancy and postpartum recovery, while the former being a relatively long-term leave allowing discharge of caregiving responsibilities owed to the infant. Sixty-six countries worldwide have parental leave provisions in place, mostly in developed economies of Europe and Asia. Mongolia provides leave with payment of benefits, and South Korea has leave extension for meeting childcare needs. In India, a reference has been made to ‘Child Care Leave’ by courts in furtherance of Article 21 and 42, but hasn’t been statutorily incorporated in the Act. Thus, the Act needs to be amended to provide for the burdens specifically faced by single mother households.
V. MATERNITY LEAVE PROVISIONS AS A WORKPLACE EQUITY MEASURE
India’s gender economic parity rests at 39.8%, due to under-representation of females in managerial workplace roles. Such marginal progression can be traced to the woman not being supported adequately by societal players, to balance her domestic and professional responsibilities equally. Today, when medical science through oocyte cryopreservation presents a method to help women achieve best of both worlds, the law seems to take a back seat by not statutorily mandating the realisation of such a possibility, leaving her at the behest of employer-dominated contractual arrangements. If the employer promises such a liberty, the decision to start a family at one’s preferred timeline could merely transform into another manifestation of imposed motherhood dictated by external gendered expectations, perpetuating traditionally male-centric employment customs and lifestyle preferences. Women might feel pressured into freezing their eggs, thinking those who opt out of it will be perceived by the management as prioritizing domestic responsibilities over workplace obligations in opposition to women availing such benefits, fostering implicit discrimination. If benefits are provided for such procedures, the employer can come off as imposing this tacit condition on future prospects of advancement in their workspace, to the disadvantage of those who don’t comply with this latent warning. Ultimately, the women would be bearing these gendered career costs, driving them out of employment opportunities.
Factors such as cost and unfamiliarity might initially discourage employers from offering egg freezing benefits, but once introduced they can become coded workplace signals of commitment by unofficially valorizing them as a display of loyalty to the job or alignment with long working hours as such behaviors have traditionally been rewarded in masculine workplace cultures. Thus, it depends on the employer’s presentation of such benefits as options rather than a necessity of the job, tracking any unintended trends in promotion timelines of women availing benefits to not receive any undue advantage, and carefully considering the messaging of this reproductive autonomy as a choice, not creating any invisible workplace penalty for women. Even though the burden of providing benefits ought to be the employer, the framing of the terms and conditions of availment in employment contracts needs statutory mandated guidance so as to avert the ‘choice’ from devolving into a conditioned necessity, where autonomy is performative and maternal timelines are market-regulated. Reliance industries, as a result of their parental leave policies, have achieved 100% post-maternity retention rates, exemplifying how empathetic approach can be instrumental in eliminating gender based disparities in the workplace.
The jurisprudential interpretation of the Act has always been purposive, favouring an enhancement of women’s workforce participation by accommodating gender-specific employment incidences, even if coming at an added cost to the employer to ensure the realisation of the larger social purpose. Paid maternity leave for oocyte cryopreservation, as a medical necessity following reproductive autonomy, and single mothers, to do away with caregiving disparities, should be statutorily included to shift the Act’s approach from a static compensation model to a social insurance framework, aligning such a dynamic legal mechanism with workspace realities of women.
VI. CONCLUSION
Advancements in biological sciences have the potential to bring a dynamic shift in gendered workplace structures by redefining the power dynamics between the two sexes. With the removal of the inherent career versus family choice specifically surrounding female conversations, for the first time they have the opportunity to even the odds. The constitutional recognition of reproductive autonomy has taken the negative connotation attached to ART procedures like oocyte cryopreservation, with growing acceptance of voluntary single motherhood to some extent. Global practices of ILO and various jurisdictions suggest the inclination towards statutorily mandating the realisation of such a right in conventional workplace structures. This would include acknowledging how employment setups are intrinsically skewed in favour of men by their inability to accept the differential lived realities of women who are still required to conform to ‘masculine’ coded career trajectories for their survival. Thus, the Act, being brought in specifically to create an equitable workplace, needs to be amended to incorporate paid leave provisions to support women in availing the ‘miracle’ modern medicine has to offer, empowering them to, for once, not make any compromises with their professional ‘and’ personal aspirations.
*Ananya Garg is a 4th-year law student at the West Bengal National University of Juridical Sciences, Kolkata, who shares a keen interest in Labour Law.