Introduction:

Parenting is a two-people job, however according to the labour laws in India only a woman is responsible for taking care of the child. The deep-rooted ideology of ancestors can be seen in the legislative framework of India. Maternity benefits in India are also framed in a patriarchal manner and thus, give little to no importance to the duties of a father in parenting. It proposes a problematic approach to the idea of gender equality and shared responsibility in a household.

In today’s time both the parents in a household are seen to be working and the sole burden of parenting is placed on a woman that affects her physical as well as the mental health. Due to lack of paid-paternity leave, it is observed that fathers are made to choose between their child and work which denies the fathers an opportunity to connect with their new-born. In many households, a father cannot afford to take unpaid leave and thus he is forced to prioritize his job over his child. This is where the father’s responsibilities are kept limited to him being a breadwinner and a mother’s responsibilities are kept limited to taking care of ‘her’ child. And this is how the phrase “man of the house” comes into play.

Lack of parental benefits not only sows’ seeds of patriarchy in the household but also plays a vital role in shaping a child’s mindset. Growing up in a family where the burden of money making is solely on the father and burden of child-care is only on the mother sets a foundation of gender-inequality in the minds of a child.

This paper aims at highlighting the lack of legislative framework for fathers and other significant partners in labour laws in India. Additionally, it also analyzes the parental laws in other countries.

Paternity laws in India:

In the year 1999, paternity benefits were proposed in the public sector that provides father to take a 15-day paid leave either before or within 6 months from the date of delivery of the child, however no such provision was made for fathers working in a private sector.

Then recently in 2017, paternity benefit bill was proposed in the Lok Sabha by Maharashtra MP, Rajeev Satav, which allowed men working in government sectors to take a 15-day paid leave that can be extended up to 3 months. Legal objective behind proposing this bill was significantly to remove gender gaps in labour law. This bill also aims at eliminating the upper hand that patriarchal approach holds on labour laws in India. It is also a first step towards reducing the dual burden on a new mother to juggle between her responsibilities to provide for the family as well as the assumed responsibility of care that society implies on her.

The amendment proposed that every worker in an unorganized sector or a private sector who has worked for minimum of 80 days in the establishment has the right to avail paternity benefits as laid down in the bill. Employee is liable to receive benefits based on average daily wage received by him for the number of days he has worked in the establishment.

It is imperative to point out here that, top Indian Companies like Flipkart, Google, Vodafone have given a place to paternity leaves in their internal policies. What becomes more crucial is to understand that there is no law or legal mandate for these companies to insert paternity leaves in their policies. They have done this merely because of the objectives set out for the paternity bill, 2017. Even after the proposition of this bill, there is no eagerness in the legislature to make laws regarding paternity benefits. The bill only serves the purpose of a guideline for the private establishments and the discretion lies in the hands of higher management to make rules for the same.

Why do we need Paternity laws in India:

1. Since section 59 of the Code on Social Security (Hereinafter, The Code) allows the state to take autonomy over woman’s body and personal choices, they should also play a proactive role in reducing their dual burden during childbirth. They can do that with the help of providing for better paternity laws in the country where the father plays an equal role in raising the child. By implementing paternity laws in the country, they would allow biological fathers, or commissioning fathers to have an equal contribution as is of the mother.

Another benefit is that the paternity benefits will allow both the parents to focus on the professional side of their life. Currently, the mother must sacrifice her professional life to take care of her child but when the paternity laws will be implemented; both the parents will share an equal burden. This will allow the woman to take out time for her professional commitments as well. This will have a positive effect in terms of reducing the percentage of women leaving workforce because of pregnancy.

2. Section 60 of the Code only emphasizes on the role of a woman in being a mother and thus grants women paid maternity leave for 26 weeks. The provision is not inclusive in its complete sense, and it demands to be more liberal in its approach.
3. Section 65 of the Code eliminates the mental trauma that a father might have gone through due to the medical terminated pregnancy of his wife. Moreover, it also neglects the duty of care of a man towards his wife. Practically speaking, during tough times such as a medically terminated pregnancy as well as after tubectomy, a woman might need more support whether physically or mentally from their partner.
4. Section 67 of the code only allows a woman to visit the crèche facility provided by the employer. It puts the complete burden of childcare on the mother and portrays a patriarchal approach of the legislators. A father is not given a choice but to visit his own child, which also highlights the problems that single fathers might face.

Paternity Laws around the World:

Each parent should be responsible for childcare and only the mother should not be tasked with taking care of the child, thus they should both be eligible for paternity and maternity leave, respectively. While maternity breaks are quite common in India, paternity leaves are lagging. The father receives these leaves either before or right after delivery. Most of the time, both parents are employed. Men are therefore tasked with having to support their families financially on their own. As a result, both men and women must share equal responsibilities for doing home duties. As we see there aren’t any special or even slightly inclusive paternity laws in India, but is it the same in other countries around the world as well? There are a few countries which offer quite an extensive paternity leave, and we shall see these countries and analyze their respective paternity laws.

1. Norway : A statutory parental leave of 49 weeks where 100% of the salary is given or 59 weeks with 80% of the salary is provided which is to be divided between both the parents. There are certain conditions which are to be adhered to such as the father must take 2 weeks of paid leave when the child is born and an additional 14 weeks of paid leave anytime till the child turns 3 years old. The parents can use the balance weeks as per their convenience.
2. Iceland: The country in their recent 2021 legislation bought a change in their parental leave scheme which now provides for a 12-month leave jointly to the parents which is to be divided equally. 6-weeks out of this is transferable to either parent. The right to such leave would expire once the child turns 24months old. The amount of leave is 80% of the average salary and a special scheme is provided for students and people who are not in the workforce.
3. Sweden: The country has encouraged gender equality by banning the terms maternity and paternity leave and instead have classified it as parental leave. It is a combined leave of 480 days (16 months) with 80% of their salary out of which the father must take a leave of 3 months. The leave can be utilized till the child turns 8 years old.⁹
4. Finland:  In Finland, parental as well as childcare leave is provided. Parental leave given to the parents is a leave of 320 days of which both are entitled to 160 days each. A parent can transfer a total of 63 days to the other parent. The law is not just limited to mother and father but is gender neutral and applies to adopted or surrogate babies. Single parents are entitled to all the 320 days.
5. Spain: In 2021 itself Spain has amended their parental laws and increased the paternity leave from 12 weeks to 16 weeks. The leave of 6 weeks must be taken after the delivery and the rest can be taken anytime for the next 12 months after the child is born. The leave is compensated by 100% salary.
6. Japan: Japan is the only country which provides the highest number of leave days. The law provides a leave of one full year exclusively for the father. This leave is altogether different from the leave provided to mothers. Though few opt for this leave due to cultural and social stigma.

As we see there quite a few countries which provide paternity leaves and such countries that do not discriminate between genders and are more welcoming towards same-sex marriages. These countries also acknowledge single parenting and give equal opportunities to people in such inconvenient situations. Comparing such liberal and people friendly laws to the paternity laws present in India we see the absolute disparity and non-existence of such laws in our legal structure. As mentioned above India only gives 15 days of paid leave extended up to 3 months to only government employees. This leave is also not explicitly mentioned by the legislation. The legislation must seek inspiration from countries such as Norway, Sweden or Iceland and introduce a comprehensive parental leave scheme. Introducing a parental leave scheme which gives an equal amount of leave to both parents at a certain percentage of their salary would be highly beneficial for the family. The father would be present during the primitive growth of the child, and it would also enable him to take care of their significant partner.

In India having a law which enables fathers to spend more quality time with their spouse and children would enhance the child’s connection with their fathers. Finland has accepted adoptive and single parents and included same-sex marriages in their laws which must be done India as well as it would be beneficial for couples having certain medical ailments related to reproduction to opt for adoption as they would have an incentive of leave. These initiative-taking and liberal laws would benefit single parents as they would get to spend quality time with their kid without the burden of having to earn a living for a certain time. The single parent could also utilize the leave time given to the other parent as is the case in Finland.

The problem in establishing these laws is the societal pressure faced by men to be the earning head in the family and the patriarchal concept of mothers being the one’s to take care of the child. The benefit of leave given in the above-mentioned countries is majorly by the government of the country or divided between the government and the employer. In India, due the economic conditions prevailing, the burden for providing such leave would solely fall on the employer which would again be troublesome as they would have to provide for both parents. The government should establish either certain tax benefits or incentives to employers who provide paternity benefits.

The need for such laws is a priority but would definitely take some time to evolve.

Conclusion:

Due to his presence during the delivery, the father is attentive to the needs of both the mother and the new-born kid. He becomes more helpful around the house and kinder to the infant as a result of this realisation. Fathers who take maternity or paternity breaks might devote more time to their families and assist out at home. Additionally, being there throughout the kid's formative years makes it simpler for the kid to establish a close relationship with both parents rather than just one. Additionally, the child would be educated by seeing that providing care is a shared obligation and not a position based on gender.

Even if Indian law is not too restrictive, it nonetheless appears to have its roots in the idea that a mother's primary job is to take care of her kid. The fact that the leave is only available to single male parents supports this idea. It designates a father's participation in raising children as a last resort. If paternity leaves were available to all men equally, men might relieve some of the burden which falls on their spouses. Women who are solely responsible for childcare are forced to take lengthier absences from work, and in the worst scenarios, they may have to give up their jobs permanently.

As mentioned, the government does not have any special laws for paternity leave, but certain private companies do provide paternity leaves to their employees. Microsoft, Facebook, Deolitte, provide 12 weeks, 17 weeks and 16 weeks of paternity leave respectively to their male employees.

Thus, a change is underway it just has to catch wind to become a concrete law. Written By: Diksha Sindhi and Radhika Kabra