Miscarriage Bereavement: Legal Position

    An Indian proverb, “One’s mother and homeland are greater than even heaven,” in clear words states the value of a mother in one’s life. Mothers not only give birth to a child, but they are the ones who inculcate values and good habits in them. However, the life of mothers is full of hardships and difficulties. One of the difficulties that some mothers face is miscarriages. Cambridge Dictionary defines miscarriage as “an early, unintentional end to a pregnancy when the baby is born too early and dies because it has not developed enough.”[1] Bereavement faced by such mothers due to miscarriage loss might affect them psychologically and physically in a negative manner.

    Studies show that the perinatal loss of an infant has the potential to have a large impact on mothers, fathers, and the relationship of a couple.[2] Considering the same, recently, on March 24, 2021, New Zealand’s Parliament passed the Miscarriage Bereavement Leave Law giving mothers and their partners the right to paid leave following a miscarriage or stillbirth.[3] New Zealand became the second country to pass such legislation. India being the first country to pass such a law serves as a precedent for other developed and under-developed nations. This article attempts to elucidate New Zealand’s legislation in brief and compare it with the Indian law. Furthermore, it also analyses the role of Indian legislation in benefitting working Indian mothers and the way forward.

    New Zealand’s Legislation

    New Zealand being the first country to give voting rights to women, on March 24, 2021, passed unanimously an amendment named ‘Holidays (Bereavement Leave for Miscarriage) Amendment Act, 2021’ which aims to amend the principal legislation, the Holidays Act, 2003.[4] The amendment was first introduced on June 27, 2019, in New Zealand’s Parliament that got enacted after the Royal assent on March 30, 2021. The Act is administered by the Ministry of Business, Innovation, and Employment of New Zealand.

    The amendment aims to amend two sections (i.e., sections 69 and 70) of the principal Act inserting the provisions of bereavement leave and duration of bereavement leave. Section 69(4) of the Act defines the word ‘miscarriage’ as ‘the end of a pregnancy in the first 20 weeks of pregnancy other than as a result of abortion services provided in accordance with the Contraception, Sterilisation, and Abortion Act 1977.’[5] Considering this definition, the Act provides a three-day paid bereavement leave to women, their partners, as well as parents planning to have a child through adoption or surrogacy without interfering with their sick leave. Labour Party MP Ginny Andersen while supporting the Act, stated, ‘One in four New Zealand women have had a miscarriage’ which shows that such legislation was a dire need to provide employed partners and parents time so that they can come to terms with their loss.[6]

    Laws in India on Miscarriage Bereavement

    New Zealand is the second country in the world that came up with such legislation. India was the first one to bring this benefit for the welfare of mothers as well as the family in as early as 1961. In India, miscarriage bereavement leave extends to six weeks of paid leave as per the Maternity Benefit (Amendment) Act, 1961. The Act is administered by the Ministry of Labour and Employment of India.

    The Maternity Benefit Act, 1961, defines the term ‘miscarriage’ as ‘expulsion of the contents of a pregnant uterus at ay period prior to or during the twenty-sixth week of pregnancy but does not include any miscarriage the causing of which is punishable under the Indian Penal Code (45 of 1860).’[7] Considering the definition, Section 4 of the Act states that no employer should employ a woman immediately after the day of her delivery or miscarriage for the next six weeks. The Act also prohibits employers from giving any strenuous work or activity to pregnant women that may result in damage to health or increased risks of miscarriage.[8]

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    Furthermore, Section 9 of the Act under the heading ‘Leave for Miscarriage’ states that a woman on the production of such proof as prescribed shall be entitled to leave with wages for a period of six weeks immediately following the day of her miscarriage. The Act also states that if a woman suffers illness arising out of miscarriage, then on production of such proofs, she will be entitled to paid leave for a maximum period of one month.[9] 

    Comparison between India’s and New Zealand’s Miscarriage Bereavement Act

    Though Indian legislation was implemented more than half a century ago, it still on paper is one of the best Acts showing the liberal as well as the feminist mindset of lawmakers. Being the first nation to enact such a law, Indian legislation acts as a precedent for different countries. Three-days paid leave provided by the New Zealand legislation is not adequate time. It is doubtful that in only three days family members might cope-up with the grief arising out of the loss suffered by them. If we consider this parameter, then here, India legislation excels as the time period of six weeks is enough for individuals to get accustomed to the grief.

    The definition of ‘miscarriage’ in Indian legislation does not consider willful termination of pregnancy (abortion), while New Zealand’s legislation addresses this issue. Moreover, Indian legislation only considers women and grants them paid leave if they suffer a miscarriage. It does not take care of other near ones, such as the father of the child.  However, New Zealand’s legislation is gender-neutral in nature. It aims to provide leave not only to the mother of that child but to their partners as well. Moreover, New Zealand’s legislation also considers the plight of parents planning to have a child through adoption or surrogacy, but in the Indian legislation, there is no such provision for them. It can be contended that surrogacy is a recently developed technique that’s why there is no such specific provision in the amendment that came in the year 1961. It shows that Indian lawmakers must work on these parameters and consider the plight of partners of women as well as the parents adopting a child or undergoing surrogacy by amending more than half a century old legislation.

    Other Issues in the Indian Legislation

    Indian legislations are progressive but loopholes in the implementation procedure disparage the intention of lawmakers while drafting the legislation. Private companies often pay heed to legal requirements. Various cases get reported where no such assistance after miscarriage is provided to employed women in India. Due to heavy workload as well as high job insecurity, women in India continue with their job just after miscarriage.

    Moreover, there is no official database in India on miscarriages. A recent study states that South Asia has the highest stillbirth rates, and India alone contributes the highest to the data.[10] Furthermore, a study published in the Journal of Obstetrics and Gynaecology of India in 2015, also says that Indian women are more prone to miscarriages in their first pregnancy as compared to women of other ethnicities.[11] We can clearly infer from such studies that in India miscarriage is a major problem that unemployed as well as employed women face. Hence, for the betterment of employed women, effective implementation is the need of the hour. 

    Conclusion

    This article is an attempt to re-examine the miscarriage bereavement laws in India considering the newly passed amendment Act by New Zealand’s Parliament. It chalks out a few issues and urges the government to address them by revamping the law as well as effectively implementing it. For effective implementation, the government must make women aware of such policies. Further, the government should also create deterrence in the minds of private companies so that they work in consonance with such legislations. It is crucial to understand the challenges and provide solutions within the legal framework. Considering the evolving nature of laws, the government should enact new provisions as per the need of the society for their betterment.

    References

    1. Miscarriage, available at: https://dictionary.cambridge.org/dictionary/english/miscarriage (ast visited on April 15, 2021).
    2. Anette Kersting and Birgit Wagner, “Complicated grief after perinatal loss.” Dialogues in clinical neuroscience vol. 14, 2 NCBI 187-194 (2012).
    3. New Zealand passes miscarriages bereavement leave law”, The Hindu, March 26, 2021, available at: https://www.thehindu.com/news/international/new-zealand-passes-miscarriages-bereavement-leave-law/article34166555.ece (last visited on April 15, 2021) .
    4. The New Zealand Holidays (Bereavement Leave for Miscarriage) Amendment Act, 2021.
    5. Ibid.
    6. “New Zealand passes miscarriages bereavement leave law”, The Tribune, March 25, 2021, available at: https://www.tribuneindia.com/news/world/new-zealand-passes-miscarriages-bereavement-leave-law-230349 (last visited on April 15, 2021).
    7. The Maternity Benefit Act, 1961 (Act 53 of 1961),s.3(j).
    8. Ibid.
    9. Ibid.
    10. Saseendran Pallikadavath and R William Stones “Miscarriage in India: A population-based study” 84 F&S 516-518 (2005).
    11. Malathy Iyer, “Indian women more prone to miscarriages, finds study”, The Times of India, December 27, 2015, available at: https://timesofindia.indiatimes.com/city/mumbai/Indian-women-more-prone-to-miscarriages-finds-study/articleshow/50336353.cms (last visited on April 15, 2021).

    BY KAUSTUBH KUMAR | NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW, RANCHI

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