The amendment to the maternity Bill, long overdue, calls for some serious reconsideration due to its skewed philosophy.

While the most prominent flaw is its emphasis on employees in the new-age services sector, there are several other shortcomings.

What is wrong Firstly, the need for expansion of the existing benefit lacks scientific basis. The previous Act was well conceived; it offered 12 weeks of maternity leave and neatly described the pre-confinement and post-confinement period, andall other aspects including miscarriage. There is no logical reason why “26 weeks” has suddenly become the right quantum of maternity leave. The ILO convention recommends 14 weeks of maternity leave; in India, 12 weeks was already allowed. The US does not offer any clear protection except job security after 12 weeks of unpaid leave or accrued leave subject to conditions.

There appears no basis for this change. Even the healthcare industry has not stipulated what the optimum leave time is. It only suggests how long a baby should be breast-fed.

All western ideas don’t suit us. Changes being made to labour laws are done in order to suit the large industries. The new-age services sector which opened a large opportunity for women in skilled and intellectual jobs appear to be the only ones that can afford this change of providing long leave and the opportunity to work from home. Brick-and-mortar industries can neither afford this length of leave nor provide facilities to work from home. We must focus on needs and customs prevalent locally.

Another amendment to this law has been the extension of maternity benefits only to the first two children. Therefore, a woman carrying her third child will only get maternity leave of 12 weeks as opposed to the 26 weeks. Unlike China, we do not follow a one-child / two-children policy; hence it makes no sense to extend the benefit only to the first two children.

Further, the topic of surrogacy has not been addressed clearly. Surrogacy has been completely misconstrued although it’s a $100 million industry. The Bill states that the person adopting the baby post-surrogacy is entitled to maternity leave in order to bond with the child. However, the Government has enacted another legislation on surrogacy, making it near impossible to commission surrogacy, thus defeating the provisions under this Bill.

How companies are affected Laws that endorse gender equality are great in theory but they should be present inherently within the enterprise and not be cast as an obligation. It is the responsibility of the Government to push industry in recognising such benefits voluntarily. For an SME or startup with, say, 20 or 25 employees, a 26-week leave of absence is a significant loss as they operate on thin margins. This kind of scenario will kill the enterprise and render some of the jobs redundant in anticipation. Therefore a businessman must have the freedom to adopt policies that suit his enterprise or industry.

Faced with higher minimum wages, increased PF/ESI contributions coupled with larger bonuses and new leave provisions in this Bill, the Make in India ideal appears tougher than ever.

As a consequence crux of the new Bill, there will be hesitation to employ married women. Questions such as “Are you married” and “How long have you been married” are commonly asked during interviews. Data privacy laws prevalent in developed nations are not fully adopted in India and hence without a legal obligation prohibiting such questions from being asked during interviews it will not be easy for women to find employment in critical sectors.

An absence of 26 weeks is not easy to manage even from the skill/knowledge management perspective; it would take 3-4 months for an individual to get back to routine. Such a massive absence can neither be substituted by a temporary appointee nor managed by the system without affecting productivity. A free economy should provide a free hand to such entrepreneurs and not add so many obligations. The focus for Make in India should be to empower entrepreneurs.

The idea should be to facilitate the observance of labour laws, not impose them on entrepreneurs. Industry should be given an option, with the Government incentivising those who facilitate it. While the move warrants credit, these loopholes deserve careful deliberation. There seems to be a tendency to show that the Government is women friendly, without ensuring that all loose ends are tied up. A likely outcome is that companies will employ fewer women.

The writer is the founder and CEO of Ascent HR