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 MATERNITY LEAVE POLICIES:
AN INTERNATIONAL SURVEY

The United States' lack of a national maternity leave or paren-

tal leave policy distinguishes it from most other countries in the
world. This compilation of essays takes an in-depth look at the
current maternity leave policies of several countries, from the
Americas to Africa to Asia. The first essay discusses the inter-
national law context of these policies-the United Nations Con-
ventions. While United Nations treaties spell out broad rights for
women, including rights in employment and maternity leave, the
domestic policies of nations often do not reflect this international
context. Rather, the laws of individual nations more often reflect
the constraints of local economics, customs and ideas about the
proper role of women in society. Additionally, in many countries,
the laws by-pass the majority of women because they apply only
to formal sectors of employment where few women work. These
pieces focus on more than the formal laws in each country; they
look at their origins and applications as well.

Women and InternationalLaw

Arvonne Fraser*

In the last few decades, women have begun to use fundamental

human rights theory and practice to successfully challenge the
universality of women's subordination. The United Nations
("U.N.") is one of the central forums for the international ex-
pression of women's fight for equality.

* Senior Fellow, Humphrey Institute of Public Affairs, University of Minnesota; Co-

Director, International Women's Rights Actions Watch.
 Harvard Women's Law Journal [Vol. I11

In 1945, women's rights advocates succeeded in including the

phrase "equal rights for men and women" in the preamble of the
U.N. Charter. In 1975, women addressed, documented, and pub-
licized their common problems at the first international govern-
ment-sponsored conference on women which convened in Mex-
ico City during International Women's Year. At this conference,
women adopted a world plan of action which laid out a long list
of goals, objectives and suggestions for governments and the
U.N. system to improve the status of women.' The introduction
to this plan predicted that "in our times, women's role will emerge
'2
as a powerful, revolutionary social force."
During the 1975 conference, the delegates recommended the
establishment of a U.N. Decade for Women (1976-1985) and
proposed that additional world conferences be held at the mid-
point of the decade and at its conclusion. These conferences,
held in 1980 and 1985, put the cause of women's rights before
the world.
As a result of several decades of advocacy by women's groups
and the U.N. Decade of Women, the U.N. General Assembly
adopted the Convention on the Elimination of All Forms of Dis-
crimination Against Women (the "Convention") in 1979. 3 In 1980,
over sixty countries, including the United States, 4 signed the
Convention during the U.N. Mid-Decade World Conference on
Women in Copenhagen. On December 3, 1981, the Convention
became an international treaty, thirty days after the twentieth
member nation ratified or acceded to it.5 By the end of 1987, over
ninety countries had ratified the Convention-nearly sixty per-

'See UNITED NATIONS, DEP'T OF PUBLIC INFORMATION, BASIC FACTS ABOUT THE
UNITED NATIONS 111.19 (1985).
2 A. FRASER, U.N. DECADE FOR WOMEN: DOCUMENTS AND DIALOGUE 34 (1987) (con-
densed version of A World Plan of Action for the Implementation of the Objectives of
International Women's Year).
3 Convention on the Elimination ofAll Forms of DiscriminationAgainst Women, G.A.
Res. 34/180, U.N. Doc. A/RES/34/180 (1980) (entry into force: Sept. 3, 1981).
4 The United States has never actually ratified the Convention. When a country signs
an international treaty, it agrees to do nothing that will contravene the principles in the
treaty. When a country ratifies a treaty, it binds itself to take positive steps to implement
the treaty. I. PAENSON, MANUAL OF THE TERMINOLOGY OF PUBLIC INTERNATIONAL LAW
(LAW OF PEACE) AND INTERNATIONAL ORGANIZATIONS 284, 286 (1983).
5 Convention on the Elimination ofAll Forms of DiscriminationAgainst Women, supra
note 3, art. 27(1).
1988] Maternity Leave

cent of all the countries of the world 6 and an additional twenty

7
countries had signed the Convention.
This Convention is, in effect, the United States Equal Rights
Amendment spelled out in sixteen substantive articles. The intro-
duction to the Convention states that "discrimination against
women violates the principles of equality of rights and respect
for human dignity." While other U.N. conventions have included
provisions which recognize women's rights in marriage and the
family8 or have granted women certain rights in the workplace, 9
the Convention addresses both the public and the private spheres
in one document. It grants women civil and political as well as
economic and social rights.
Articles 1, 4, 11, and 16 are good examples of the Convention's
recognition that women's rights in the home are connected to
their rights in the workplace. When Article 1 defines discrimi-
nation, it specifically notes that women's marital status may not

6 As of December 1987, the following countries had ratified the Convention: Angola,
Argentina, Australia, Austria, Bangladesh, Barbados, Belgium, Bhutan, Brazil, Bulgaria,
Byelorussian Soviet Socialist Republic, Canada, Cape Verde, China, Colombia, Congo,
Costa Rica, Cuba, Cyprus, Czechoslovakia, Denmark, Dominica, Dominican Republic,
Ecuador, Egypt, El Salvador, Ethiopia, Finland, France, Gabon, German Democratic
Republic, Federal Republic of Germany, Ghana, Greece, Guatemala, Guinea, Guinea-
Bissau, Equatorial Guinea, Guyana, Haiti, Honduras, Hungary, Iceland, Indonesia, Iraq,
Ireland, Italy, Jamaica, Japan, Kenya, Republic of Korea, Lao People's Democratic
Republic, Liberia, Malawi, Mali, Mauritius, Mexico, Mongolia, New Zealand, Nicaragua,
Nigeria, Norway, Panama, Peru, Philippines, Poland, Portugal, Romania, Rwanda, Saint
Christopher and Nevis, Saint Lucia, Saint Vincent and Grenadines, Senegal, Spain, Sri
Lanka, Sweden, Tanzania, Thailand, Togo, Tunisia, Turkey, Uganda, Ukranian Soviet
Socialist Republic, Union of Soviet Socialist Republics, United Kingdom of Great Britain
and Northern Ireland, Uruguay, Venezuela, Vietnam, Democratic Yemen, Yugoslavia,
Zaire, Zambia. International Women's Rights Action Watch, Status Report, U.N. Con-
vention on the Elimination of All Forms of Discrimination Against Women (Dec. 1986 &
June 1987 Update).
7 Though signing is the first step toward ratification, many countries who sign conven-
tions never ratify them. The following countries have signed but not ratified the conven-
tion: Afghanistan, Benin, Bolivia, Burundi, Cameroon, Chile, Democratic Kampuchea,
Gambia, Grenada, India, Israel, Ivory Coast, Jordan, Lesotho, Luxembourg, Madagascar,
Netherlands, Switzerland, United States of America. Id.
8 E.g., InternationalCovenant on Economic, Social and Cultural Rights, G.A. Res.
2200A, 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doe. A/6316 (1967) (entry into force:
Jan. 3, 1976). It reads in pertinent part: "Special protection should be accorded to mothers
during a reasonable period before and after childbirth. During such period working moth-
ers should be accorded paid leave or leave with adequate social security benefits." Id. at
art. 10(2).
9 E.g., International Labor Organization ("I.L.O.") Convention No. 3, arts. 3, 6 (1919);
I.L.O. Convention No. 103, arts. 3, 6 (1952).
 Harvard Women's Law Journal [Vol. I1I

be grounds for discrimination.10 Article 4 acknowledges women's

reproductive roles and allows for "temporary special measures
aimed at accelerating de facto equality"'" which may include
special measures "aimed at protecting maternity. ' 12 Article 11
deals with women in employment and prohibits discrimination 3
against women on the grounds of marriage or maternity. It
requires "maternity leave with pay or with comparable social
benefits without loss of former employment, seniority or social
allowances. ' 14 Article 16 requires countries ratifying the Conven-
tion to "take all appropriate measures to eliminate discrimination
against women in all matters relating to marriage and family
relations,' '1 5 including decisions on family planning, guardianship
and adoption of children, choosing of a family name, a profession
or occupation, 6 and the "ownership, acquisition, management,
administration, enjoyment, and disposition of property.' 1 7 Article
16 also allows women the same right as men to choose a spouse
and enter freely into marriage-a freedom denied many women
in developing countries-and the "same ' rights
8
and responsibilities
during marriage and at its dissolution."'
Though over ninety nations have ratified the Convention, some
countries have made reservations on certain portions of it. When
a country makes such a reservation, it is not bound by those
articles on which it reserves.' 9 More reservations to the Conven-
tion have been made on Article 16 than on any other article.
Reservations have also been made to related articles such as
those on nationality, equality before the law and equality in eco-
20
nomic and social benefits.
One reason countries have reserved on Article 16 is because it
challenges strong cultural norms. Marriage in common law, con-

10Convention on the Eliminationof All Forms of DiscriminationAgainst Women, supra

note 3, at art. 1.
,1 Id. at art. 4(1).
12 Id. at art. 4(2).
1"Id. at art. 11.
14 Id. at art. 11(2)(b).
1I Id. at art. 16(1).
16 Id.at art. 16(1)(d)-(f).
Id. at art. 16(1)(h).
,8 Id. at art. 16(1)(b)-(c).
9 1. PAENSON, supra note 4, at 290.
20 See Status of the Convention on the Elimination of All Forms of Discrimination
Against Women, U.N. Doc. A/41/100 (Oct. 1986).
1988] Maternity Leave

stitutional law, and in many religions has traditionally made the

wife subordinate to the husband. Women's subordination in the
family then tends to become the model for her treatment outside
the family. Changing cultural norms is difficult and threatening
but it is a necessary step to achieving women's equality. The
resistance to women's basic equality can be seen in the number
of reservations to the Convention, especially the reservations on
the marriage and family provisions.
2
Africa '

Fiona Branton*

Many African nations grant working women some form of

maternity leave. For example, Zambian women workers in gov-
ernment and some industries are entitled to three months fully
paid maternity leave. 22 Mozambique grants women up to sixty
days paid leave after childbirth, without any reduction in normal
holiday leave, plus exemption from night work from after the
fifth month of pregnancy until six months after birth, and the
23
right to be moved to lighter tasks without any drop in salary.
In Ghana, pregnant women receive six weeks pre-delivery leave
and six weeks post-delivery leave at half pay, with guaranteed
reinstatement. 24 Similar policies are in effect in Algeria, Kenya,
Nigeria, Senegal, and Tanzania. 25 Zimbabwe grants women un-
paid maternity leave. 26 Labor laws in several African nations,
including Ghana and Mozambique, also permit nursing mothers
to take two one-half hour breaks during the working day to feed
their children. 27

21 In-depth studies of the effects of African maternity leave statutes are unavailable.

This article attempts to synthesize the available information on maternity leave statutes
and practices in a. number of African nations, and to draw some general conclusions
based on the available information.
* Student, Harvard Law School.
22SISTERHOOD Is GLOBAL 740 (R. Morgan ed. 1984).
2 B. ISAACMAN & J. STEPHEN, MOZAMBIQUE: WOMEN, THE LAW AND AGRARIAN
REFORM 114 (1980).
24 SISTERHOOD Is GLOBAL, supra note 22, at 256.
25 See id. at 45, 46, 391, 495, 590; J. KIKOPA, LAW AND THE STATUS OF WOMEN IN
TANZANIA 58 (1981).
26 SISTERHOOD IS GLOBAL, supra note 22, at 749.
27Id. at 256; B. ISAACMAN & J. STEPHEN, supra note 23, at 114.
 Harvard Women's Law Journal [Vol. I11

While African maternity leave laws appear relatively generous,

a large percentage of African women remain unaffected by them
for two reasons. First, the maternity leave provisions seem to
discourage employers from hiring women of child-bearing age.
Second, the paucity of child care facilities available to the average
African woman prevents her from seeking wage employment. As
a result, most women seeking employment are forced to choose
the more flexible environment provided by either self-employ-
ment or agriculture, 28 which are generally not covered by the
maternity leave statutes.
Thus, while most women in Africa are employed in some ca-
pacity, only a very small percentage are employed in the wage
sector of the economy and, consequently, are eligible for statu-
tory maternity leave benefits.2 9 For example, in Zambia, only a
small proportion of women manage to attain wage employment.
Most women find employment in the independent craft trades or
in small agricultural operations.3 0 Similarly, a 1975 International
Labor Organization ("I.L.O.") study found that less than 10 per-
cent of Mozambique's working women held salaried jobs, the
rest were employed in agriculture. 3' The agricultural and handi-
craft jobs generally accomodate women's domestic and child-
rearing responsibilities better than jobs in industry or
government.
Obtaining the status of a wage laborer, though, does not guar-
antee that a woman will be able to exercise her right to maternity
leave. In industry and government, the official maternity leave

7"M. CUTRUFELLI, WOMEN OF AFRICA: ROOTS OF OPPRESSION 92, 93 (1983); KIKOPA,

supra note 25, at 55. But see T. Ponnambalam, Women, the Law and the Development
Process 52 (1986) (unpublished paper submitted in fulfillment of the requirement of the
L.L.M. degree, Harvard Law School, 1986) (on file at Harvard Law School library),
stating that in an extended family society, such as Zambia, the elderly members of the
family are available to look after the children.
29M. CUTRUFELLI, supra note 28, at 92; B. ISAACMAN & J. STEPHEN, supra note 23,
at 115.
" T. Ponnambalam, supra note 28, at 43; M. CUTRUFELLI, supra note 28, at 92. While
many Zambian women voluntarily choose not to obtain employment in the wage sector
of the economy, Zambia has also adopted two International Labor Organization conven-
tions that inhibit the participation of women in many important Zambian industries: the
Convention Concerning Night Work of Women Employed in Industry (adopted by the
I.L.O. in 1919, revised in 1934 and 1948), and the Convention Concerning the Employment
of Women on Underground Work in Mines of All Kinds (adopted by the I.L.O. in 1935,
revised in 1946). T. Ponnambalam, supra note 28, at 9-10.
31 B. ISAACMAN & J. STEPHEN, supra note 23, at 115.
19881 Maternity Leave

policy permitting paid leave and reinstatement is sometimes ig-

nored or subverted by employers who do not wish to incur the
additional expense of compensating women for their childbirth-
related absences. For example, a survey in Mozambique revealed
that many employers of women as domestic servants forced those
women to forgo their maternity leave benefits or risk losing their
jobs. 32 In Ghana, there have been reports that some industrial
collective bargaining agreements attempted to nullify or limit the
statutory maternity leave provisions by providing that a woman
could be fired if she became pregnant within one year of being
hired. 33 Some employers avoid the maternity leave expense al-
34
together by not hiring women at all.
Although most African countries are committed to relatively
generous maternity leave policies, many women remain unable
to take advantage of the provisions because they fall outside the
reach of the maternity leave statutes. One way of permitting more
women to take advantage of the statutory maternity benefits
would be to increase the availability of child care facilities so
African women could obtain the types of jobs that include ma-
ternity-related benefits. Greater enforcement of the laws is also
needed.

Chile

Ileana Porras*

Maternity leave in Chile is mandatory. The law requires a114

employers to provide six weeks prenatal maternity leave and
twelve weeks postnatal maternity leave. 35 This obligation cannot
be contracted away by the employer, nor can a pregnant woman

32
Id. at 124.
33M. CUTRUFELLI, supra note 28, at 96.
-1 See J. KIKOPA, supra note 25, at 56; B. ISAACMAN & J. STEPHEN, supra note 23, at
123.
* Student, Harvard Law School.
3s Decreto Ley (D.L.) 2,200, art. 95, compiled in LEGISLACION LABORAL ACTUALIZADA
(A. Rodriguez ed. 1985) (includes changes made between 1978 and 1985). In 1987, the
Pinochet government re-enacted this law in a more comprehensive Labor Law Code (the
previous official Code was abolished by Pinochet). The author has not had access to the
new code, but understands that all the relevant provisions are extant.
 Harvard Women's Law Journal [Vol. I11

waive this right. 6 In other words, a pregnant woman may not,

by law, work during her legally mandated resting times, whether
she feels capable of it or not.
During the four months of imposed rest, a woman on maternity
leave is generally entitled to receive a subsidy equal to her net
salary.37 This benefit is paid through the Social Security system,
as long as the woman has contributed to Social Security for at
least six months, with three of those months occurring during the
six months immediately preceeding her leave. 38 If, due to the
employer's negligence, a woman did not start contributing to
Social Security in time, the employer must bear the burden of
paying the woman the equivalent of what she would have re-
39
ceived as a benefit.
In cases where the pregnancy leads to health complications,
the law continues to be generous. With an official certificate
attesting to the illness, a woman may remain away from work as
long as necessary. 40 During her health-related leave, the woman
will continue to receive her full salary through Social Security if
41
she is eligible.
After the birth of the child, the law entitles women to special
benefits related to their roles as mothers. Chilean maternity law
provides that mothers are entitled to an hour a day, during work-
ing hours, to feed their infant children. 42 Employers must count
this hour as part of the hours worked. 43 In contrast, the half-hour
lunch break to which all workers are legally entitled is not treated
as part of the working day.44
In reality, the law permitting mothers to feed their infant chil-
dren during working hours has little practical significance. The
law only requires employers of twenty or more workers to pro-
vide and pay for child care facilities. The requirement may be

36 D.L. 2,200, supra note 35, at art. 95.

37Id.,at art. 98.
-8 Decreto con Fuerza de Ley (D.F.L.) 44, art. 4 (1978). This law applies to public
sector employees as well as those in the private sector. D.L. 3,537 (1978).
39See D.L. 2,200, supra note 35, at art. 107.
40Id. at art. 96.
41 Id. at art. 98.
42 Id. at art. 105.
43 Id.
44
Id. at art. 45.
1988] Maternity Leave

satisfied by joining with other employers to run a common nurs-

ery, or by paying for external child care. 45 The result seems to
be that only a very small proportion of employers provide in-
house nurseries. Most mothers, therefore, do not have the nec-
essary access to their children during the work day to take ad-
vantage of the statutory nursing breaks.
Chilean law also provides for indefinite paid leave for the
mother of a seriously sick infant under a year old. 46 This provision
is problematic in that it applies only to women. It reinforces the
stereotype of women as the proper child care-takers because
fathers are not equally entitled to take time off. Indeed, the very
existence of the right may have a coercive effect, pressuring
women to remain at home and care for the sick child, regardless
of the effect it may have on their professional advancement.
Given the breadth of the rights and entitlements available to
pregnant women by law, it is difficult to imagine that employers
would be willing to hire women of child bearing age, or to keep
them on after they become pregnant. The capacity of Chilean law
to cope with this problem is difficult to gauge. The Constitution,
which is gender neutral, prohibits employers from discriminating
in their hiring decisions. 47 This is taken to include a prohibition
on discrimination against women. Given the rather strong disin-
centives for employment of women created by the maternity law,
however, such protection appears weak. On the other hand, the
maternity law includes an anti-firing provision which protects
women already in the work force. Under that provision, a woman
may not be fired during the period of time between the beginning
of the pregnancy to a year after the termination of the official
maternity leave. 48 During this time she enjoys the special privilege
usually reserved to union leaders, which requires judicial author-
ization for dismissal. Further, if a pregnant woman is fired by an
employer who is unaware that she is pregnant, she must be
reinstated with back pay. This entitlement not to be fired covers
workers in virtually all sectors of the workplace, except women

41 Id. at art. 102.

4 Id. at art. 99.
47 CONSTITUCION POLITICA DE LA REPUBLICA DE CHILE (CHILE CONST.) art. 19(16)
(1980).
48D.L. 2,200, supra note 35, at arts. 22 & 100.
 Harvard Women's Law Journal [Vol. I11

employed by households, who may be fired at will despite their

49
pregnancy.
How is Chilean maternity law to be assessed? On its face it
seems very progressive. Its net effect is to place working women
in a position where childbearing will not prove an excessive
economic burden. Chilean women are guaranteed their jobs, sal-
aries, and enough time to recuperate after the birth. In a country
where birth control is frowned upon and abortion is illegal except
for health reasons, such provisions are extremely significant.
On the other hand, many of these laws seem to originate in a
concern for the health of the fetus and infant rather than a concern
for women. Since 1857, the Civil Code has provided that: "The
law protects the life of he who is to be born. '50 The Constitution
of 1980 repeats these words, 5' thus reinforcing the higher protec-
tion afforded the fetus. Although this oft-stated concern for the
life of the fetus is not dispositive as to whom the maternity
provisions are intended to protect, it must color our understand-
ing of the laws.
A further example of the Chilean maternity laws' heightened
concern for the fetus is a provision that pregnant women em-
ployed in work considered a health risk during pregnancy must
be transferred at the same level of pay to a safer job. 52 The statute
defines five categories of "dangerous" work: lifting or pushing
heavy weights; work requiring standing for extended periods of
time; night work; work requiring long hours; and any employment
the competent authorities declare inappropriate for pregnant
women. 53 In light of this statute, many other statutes may be read
as predominantly fetus-protective. The mandatory nature of ma-
ternity leave, the right to stay away from work if a child is ill,
and the economic benefits for pregnant women all indicate that
the statutes intend the primary beneficiary to be the child rather
than the mother.
Nevertheless, easy conclusions cannot be drawn. Mandatory
maternity leave may be necessary in a country such as Chile
where women who are confronted with demanding and powerful

49Id. at art. 100.

-oCODIGO CIVIL 7TH, tit. II, art. 75 (1977).
5' CHILE CONST., supra note 41, art. 19(1).
52 D.L. 2,200, supra note 35, at art. 101.
53
1d.
1988] Maternity Leave

employers might otherwise be forced to contract away or waive

their rights. Whether the majority of women are well served by
the Chilean maternity laws, or whether women would be better
served by other measures are questions not easily answered.

India

Vandana Chak*

The Constitution of India prohibits sex discrimination in

employment5 4 and allows for special provisions for women, with
the object of ensuring social justice. 55
In 1961, the Central government, in order to bring uniformity
and coherence to the field of maternity benefits, passed the con-
trolling Maternity Benefits Act ("M.B.A."). 56 Under the M.B.A.,
women are entitled to a twelve week paid leave, with six of those
weeks prior to birth. The rate of pay during leave is calculated
57
at the rate of the woman's average daily wages.
The M.B.A. applies to all mines, factories, plantations and
circuses. 58 It prohibits an employer from knowingly employing a
woman during the six weeks immediately following a delivery or
miscarriage. 59 In order to safeguard the health of women workers,
the Act prohibits employers from requiring arduous work or long

* Attorney, New Delhi, India; practices before the High Court of New Delhi and the
Supreme Court of India.
'4 CONSTITUTION OF INDIA, art. 16
Is Id. at art. 15(3).
-1 25 INDIA A.I.R. MANUAL 4TH 255. Prior to 1961, the Factories Act, 1948, 18 INDIA
A.I.R. MANUAL 4TH 758, the Employees State Insurance Act, 1948 [hereinafter "E.S.I."],
16 INDIA A.I.R. MANUAL 4TH 466, and the All India Services Act, 1951, 1 INDIA A.I.R.
MANUAL 4TH 347, provided maternity benefits.
Because the E.S.I. applies to employees with wages over 1000.00 rupees per month, a
fairly high wage for workers in India, E.S.I. § 2(9)(iii), many workers were not covered
by either act. Therefore, the M.B.A. was amended in 1972 and 1976 to cover employees
who previously had been left out by the provisions of the E.S.I. and the M.B.A. See
Maternity Benefit (Amendment) Act, 1972 § 3 (21 of 1972) and Maternity Benefit (Amend-
ment) Act, 1976 § 3 (53 of 1976).
57M.B.A., supra note 56, §§ 4(1) & (2), 5(1) & (3).
58
Id. at § 2. The M.B.A. was amended in 1973 to cover circus workers, who had
received no coverage because they travelled state to state. Maternity Benefits (Amend-
ment) Act, 1973 (52 of 1973).
-9 M.B.A., supra note 56, § 4(1).
 Harvard Women's Law Journal [Vol. I1I

hours of standing, especially one month before the expected

60
delivery.
Women workers in administrative services of the central or
state governments receive similar benefits but are governed by
the All India Services (Leave) Rules, 1955 made under the All
India Services Act, 1951.61 The Rules grant a woman ninety days
of fully paid maternity leave to which another sixty days of any
other leave she might have accrued can be added. 62 The depart-
ment of personnel and administrative reform extends these ben-
63
efits to miscarriages and medically induced abortions.
Women workers enjoy the protections and benefits afforded by
the Acts to varying degrees. The statutes are basically sound but
their implementation is circumscribed by the fact that most of
these women are illiterate, unaware of their rights and ignored
by trade unions as equal participants. Thus the requirement of a
64
written notice of claim for maternity benefits under the M.B.A.
actually dilutes the force of law since employers simply ignore
verbal requests and the women often do not know of the written
requirement. The protections guaranteed under the All India Ser-
vices Act are the most effectively implemented due to the fact
that it applies to an educated workforce.

Singapore

Suzanne Goldberg*

Singapore's maternity leave policies reflect the struggle be-

tween the economic need for women in the work force and the
traditional demands for women to remain in the home to raise
their children. As a small island-state with an international trade-
based economy and a population of only 2.5 million, Singapore
recognizes, through its labor and employment policies, a clear

60 Id. at § 4(3)-(4).
61 All India Services Act, 1951, 1 A.I.R. MANUAL 4Tr 357.
62 ALL INDIA SERVICES (LEAVE) RULES § 18.
63 Id. § 18(3). This leave is for up to six weeks and requires a medical certificate. Id.
64 M.B.A., supra note 56, at § 6(l).
* Student, Harvard Law School; Fullbright Fellow in Singapore (1985-86).
1988] Maternity Leave

economic need for women in its work force. 65 At the same time,
its policymakers legislate their view of the social desirability of
having women as full-time mothers into other employment and
66
child care policies.
Singapore's Employment Act provides that every female em-
ployee who has worked for an employer for at least 180 days
within the year preceding notice to her employer "shall be entitled
to absent herself from work during the four weeks immediately
before and the four weeks immediately after a confinement." 67
During confinement, the Act entitles the employee to her ordinary
rate of pay for every day of the benefit period, including rest
days and holidays. 68 However, pursuant to Singapore's two-child
family planning policy, 69 section 95(4) of the Act provides that
female employees "shall not be entitled to any payment during
the benefit period for any confinement when at the time of the
'70
confinement she has two or more surviving children.
Employers are forbidden to dismiss an employee on maternity
leave during her absence and are considered guilty of an offense
for knowingly employing a woman during the four weeks imme-
diately following her confinement. 7 1 If a female employee works

6 In 1985, Singapore's Manpower Subcommittee issued a report highlighting the com-

mittment to increase the female labor force participation rate as part of its effort to expand
Singapore's total work force. The recommendations included programs emphasizing sex
equality, improving child care facilities, developing more work options and extending
school hours. Hwa, How Women and RetireesCan be Lured Back to Work, Straits Times,
December 10, 1985, at 11, col. 1.
6 The Minister for Trade and Industry Tony Tan acknowledged the difficulty of realizing
both policy goals in a 1982 statement to Parliament: "We will have to be more imaginative
and more determined in our efforts at retaining a large number of our womenfolk in the
labor force without however endangering the upbringing of our children. The family unit
is the most fundamental building block in our society, and it is an institution which we
must cherish and preserve even at the cost of sacrificing some economic growth." Sin-
gapore ParI. Deb. col. 839-840 (March 5, 1982).
67Employment (Amendment) Act, 1973, (41 of 1973) (Supp. 1973) (codified at SINGA-
PoRE REv. STAT. ch. 122 § 95(l)).
61Id. at § 96(l) & (2).
69The National Family Planning Programme, introduced by the Singapore Family Plan-
ning and Population Board in 1966, developed a comprehensive strategy of education,
disincentives and incentives to achieve a two-child per family norm. Although this policy
was modified somewhat in 1973, particularly with respect to well-educated women through
the "enhanced child relief" program which provides benefits to highly educated women
who have more than two children, see Quah, Impact of Policy on the Family: Can the
Family Be Strengthened by Legislation?, 9 SOUTHEAST ASIAN J. OF Soc. SCIENCE 33,
46 (1981), it continues to recommend that the population at large limit their families to
two children.
70 Employment Act, supra note 67, § 95(4).
7' Id. at 99 100 & 101.
 Harvard Women's Law Journal [Vol. I11

for another employer after absenting herself under the Act, she
72
forfeits her claim to any of its entitlements and can be dismissed.
The Act specifically prohibits any contracts of service whereby
female employees relinquish their rights to maternity benefits or
remove an employer's liability for payment. 73 In other words,
maternity leave is mandatory. Any employer who fails to comply
with the Act may be fined up to $500 or imprisoned for up to six
months or both. 74
Given the fact that Members of Parliament have encouraged
full-time motherhood 75 it is surprising that the paid maternity
leave mandated by the legislature amounts to only four weeks
after the child's birth. National economic demands for women in
the workforce are one possible reason for the brief leave. In their
strategies to increase Singapore's total workforce, both Members
of Parliament and administrative agencies such as the Manpower
Subcommittee of the Economic Committee specifically targeted
Singapore's female population and suggested various options in-
cluding improved child care and programs emphasizing gender
equality. 76
Labor policy makes some provisions for part-time employ-
ment, but does not account for the impact of part-time work on
the working mother's income, career development, job security
and benefits. 77 Family fiscal need also drives women back to the
78
work force.
However, demographic trends in Singapore indicate that the
full-time motherhood goal of policymakers is generally realized
regardless of the brief paid leave provided. Although the statistics
have risen slightly during the past several years, the overall fe-

72 Id. at § 102.
73
74
Id. at § 105.
Id. at § 106.
7- A statement by Mr. Ong Teng Cheong, representing the Ministry for Communications
and for Labor, is indicative of a pro-full-time motherhood sentiment often expressed in
Parliament. It is "socially desirable for women to stay home when their children are
young. The formative years are important years requiring a mother's attention to inculcate
moral values and nurture linguistic abilities." Singapore Panl. Deb., col. 1388 (March 23,
1982).
76 See Hwa, supra note 65.
7 S. Quah, supra note 69, at 48.
78 See Wong, Women's Status and ChangingFamily Values-Implications of Maternal
Employment and EducationalAttainment, in THE CONTEMPORARY FAMILY IN SINGAPORE
44 (1979) (66% of 900 women interviewed in a 1973 study on the Economics of Fertility
in Singapore cited financial concerns as their most important reason for working),
1988] Maternity Leave

male labor force participation rate registered at 45.8% in 1984, 79

and the comparable rate for married women was significantly
lower. 0 Child care responsibilities are overwhelmingly the most
often cited factor in women's decisions not to work.81 With the
economy growing rapidly once again, women continue to be a
necessary part of the Singaporean work force, but must fulfill
their "motherhood role" within the confines of a limited maternity
leave policy.

Sweden

Jennifer Schirmer*

Sweden has the longest paid parental leave of any Scandinavian

country: nine months at ninety percent of income and three
months at the minimum sick leave rate 82 of 60 kr or $10.00 per
day, 83 available to both men and women. However, even in a
social democratic welfare state such as Sweden, which has been
committed to gender equality for decades, women experience a
basic contradiction in terms of parental leave: while they are
provided a relatively generous leave (in comparison to the rest
of the world), they find this leave has not changed either the
economic or social constraints on men and women set by the
labor market or the cultural impediments to male participation in
childrearing. Moreover, the leave policy divides women by class

7
9SINGAPORE MINISTRY OF LABOUR, RESEARCH AND STATISTICS DEP'T, 1985 SINGA-
PORE YEARBOOK OF STATISTICS 8 (1986).
"oSINGAPORE DEP'T OF STATISTICS, CENSUS MONOGRAPH No. 3, THE LABOR FORCE
OF SINGAPORE 20 (S. Hoch 1985) (53.1% labor force participation rate for single women
vs. 29.8% rate for married women).
"IEighty-eight percent of non-employed women responding to a 1973 study said that
child care was their most important reason for not working. Wong, supra note 78, at 44.
* Political Anthropologist and Acting Director of Women's Studies Program, Wellsley
College; while conducting dissertation fieldwork in Scandinavia between 1976-78, inter-
viewed Swedish sociologists doing work on women's experience with social services and
part-time work.
82R. SIDEL, WOMEN AND CHILDREN LAST 181 (1986). Sweden differs from most
European countries which provide women with a tax-free benefit. Id. at 197 (citing S.
KAMERMAN, A. KAHN & P. KINGSTON, MATERNITY POLICIES AND WORKING WOMEN
23 (1983)). Parental benefits were introduced in 1974 and replaced maternity benefits. H.
SCoTT, SWEDEN'S "RIGHT TO BE HUMAN" 8 (1982).
13Telephone interview with Swedish embassy staff member in Washington, D.C. (Jan.
22, 1988) (based on a telex from Sweden responding to a request for information).
 Harvard Women's Law Journal [Vol. I11

because it benefits professional women at a higher rate than it

does working class women.
The statistics show that economic constraints limit Swedish
men's use of parental leave. In 1983 it was reported that "about
three quarters of new fathers do not take a single day of the
leave" to which they are entitled.84 The men who do use the leave
are government employees who receive full wage replacement
and professionals with flexible schedules. 85 Although it has been
illegal for an employer to refuse parental leave since 1978, there
remain "ways of making it clear that an extended absence may
interfere with upward mobility. '86 Thus, the single most impor-
tant factor given by fathers for not taking the leave has been the
87
belief that their prospects for career enhancement would suffer.
Because men's ability to take advantage of the leave is largely
restricted by economic class, their social responsibility as parents
88
and partners is also limited by class.
Economic constraints are only part of the story. Men do not
so easily give up traditional roles and privileges. Of the ten per-
cent of men who took parental leave in Sweden in 1977, twenty-
one percent spent only one to nine days on leave, with another
thirty spending ten to twenty-nine days.8 9 Only one percent ac-
tually took from 180 to 210 days leave. 90 Further, men were more
likely to take leave if the child was male. 91 Again, in 1983, nearly
ten years after the leave legislation was passed, the average
period of time taken by men remained low, ranging from ten days
to one month. 92 A key factor in determining male attitudes is the

8 Y. Ericsson, Paper Presented at Women and Labour Market Policy Conference at

Cornell University 6 (Oct. 5-7, 1983) (on file at the Harvard Women's Law Journal). See
also R. SIDEL, supra note 82, at 181 (stating that in 1983, 25-30% of all Swedish fathers
used the leave). In 1979, only 12% of all fathers took advantage of parental leave. H.
Scorr, supra note 82, at 63.
15 Pogrebin, A Feminist in Sweden, Ms., Apr. 1982, at 66, 82.
" H. ScoTr, supra note 82, at 83.
s7R. SIDEL, supra note 82, at 182 (citing Jan Trost, ParentalBenefits-A Study of
Men's Behaviors and Views, in CURRENT SWEDEN 1-7 (1983)).
mRather than education initiating change in traditional attitudes, economic incentives
and restraints may allow middle-class male public employees to at least appear more
egalitarian than working-class men with little job security. Moreover, the small, private
employer who cannot pass the costs of training a substitute worker on to the consumer
may appear less egalitarian than the large corporation or municipal government.
19Danish Equal Status Council and Children's Commission, Joint Report on Comparing
Maternity Leave Provisions in Scandinavia 21 (1978).
90Id. at 23.
91Id.
92 R. SIDEL, supra note 82, at 181.
1988] Maternity Leave

man's perception of his workmates' views. 93 A clear majority of

Swedish men approve of the opportunity for "paid days off," but
many are "ambivalent" about the leave. 94 Moreover, even if men
do opt for the leave, it is unclear how much time they spend
95
caring for children and doing household chores.
Sweden has both a highly gender-segregated labor market and
a high part-time working rate for women. Men choose from 300
occupations in Sweden while women choose from only thirty,
many at the low end of the pay scale.9 6 Nearly half of all employed
97
women work part-time, contrasted with seven percent of men.
Men's working hours are on average ten hours longer per week
than women's. 98 Thus, despite generous parental leave, the typ-
ical pattern among Swedish women today is to work full-time
until they have children and then to reduce their work to part-
time. 99 This practice puts them at a permanent disadvantage in
the labor market and reinforces their primary responsibility to
the family over the workplace.
Finally, the Swedish income-based parental leave policy may
magnify differences among women. Women with a higher income
receive a greater real benefit than women with lower income
because a ten percent reduction in salary is a greater hardship to
a woman working piece-rate in a factory than to a professional
woman. Additionally, at the end of the nine months, the working-
class woman is economically less able than her middle-class coun-
terpart to stay home for another three months at a flat rate. A
social policy that is meant to improve gender equality may, in
reality, exacerbate class differences. 100

93Id. at 182 (citing Trost, supra note 87, at 1 - 7).

9 Id.
91Cf. a Danish study found that while upper middle-class men sometimes 'helped' with
child care and household tasks, it was never at the expense of their careers. SCHIRMER,
THE LIMITS OF REFORM: WOMEN, CAPITAL AND WELFARE 146-164 (1982). In Sweden,
women spend an average of about 35 hours per week on housework, against 7-8 hours
by men. Y. Ericsson, supra note 84, a t 6.
9 Less than one percent of Swedish women are managing directors of senior executives
in the private sector. See Y. Ericsson, supra note 84, at 5.
9 R. SIDEL, supra note 82, at 178.
93Y. Ericcson, supra note 84, at 4.
99 R. SIDEL, supra note 82, at 178.
,00Cf. the author's research in Denmark where, until recently, a professional woman
had five months paid leave and a factory worker fourteen weeks. Debates about extending
maternity leave to eighteen weeks in 1983 revealed class differences among women based
on distinct working conditions: white-collar and professional workers demanded the leave
be extended after the birth, when they felt most tired, and working-class women demanded
the leave begin earlier in order to avoid long, tiring days on their feet and to safeguard
 Harvard Women's Law Journal [Vol. I11

The lesson to be learned from the Swedish parental leave policy

is that single reforms which do not address larger economic and
cultural issues can at best be palliatives; at worst, they cement
traditional gender and class stratifications in both family and work
life.

Turkey

Jeffrey Avina and Jean Manas*

Maternity leave in Turkey is governed by the Labor Law,

enacted in 1967. Article 70 provides twelve weeks of mandatory
leave, six weeks before and six weeks after birth. 10 1 It makes it
illegal for employers to employ women during this time. Upon
certification by a medical doctor, the maternity leave may be
extended for up to six months, before or after birth, if the health
of the mother or the kind of work she does so requires. As a
result of a 1983 amendment, all women now receive an optional
six months of additional leave which is explicitly unpaid.102 The
maternity leave law does not mandate payment to the woman
during any leave, so she would most likely receive payment
through the Social Insurance system, 0 3 absent a personal con-
tract or collective bargaining agreement or private insurance.
The Labor Law covers only a fraction of the Turkish labor
force. 104 People who work at home, either in cottage industry or
domestic work, and agricultural workers are not covered. Estab-
lishments with less than three employees also fall outside the
scope of the Labor Law. As a result, the law is limited to roughly
one tenth of all women workers.10 5 Since the Social Insurance

the embryo from dangerous fumes. Schirmer, Paper Presented at Conference on Women
and Welfare, Bellagio, Italy (1983) [on file at the Harvard Women's Law Journal].
* Students, Harvard Law School.
101Is Kanunu, 70 Madde (Law No. 1475) (1967).
10218120 T.C. Resmi Gazete 5 (Law No. 2869) (July 30, 1983).
103 Sosyal Sigortalar Kanunu, 49 Madde (1965). 49 Madde provides for temporary

benefits during maternity leave. 89 Madde fixes these benefits at two-thirds of the woman's
wages.
104Is Kanunu, 1, 5 & 6 Maddeler (1967).
10S
See STATE INSTITUTE OF STATISTICS, STATISTICAL YEARBOOK OF TURKEY 1985 at
66 (1985). In 1980, roughly seven million Turkish women were employed. Id. Of these,
roughly five and a half million were "unpaid family workers." Id. at 73. Of the remaining
workers, only around 700,000 were non-agricultural employees. Id. at 75. These remaining
women are the ones covered by the Labor Law.
19881 Maternity Leave

system is the main method of payment, unless a covered em-

ployer also belongs to the Social Insurance system, the maternity
law will not likely be enforced against the employer. As a result,
the number of employees covered by the Social Insurance system
is a good indicator of the coverage of the Labor Law. As of 1980,
only 181,257 women employees were part of the Social Insurance
system. 106
In general, Turkey's maternity leave law is not rigorously en-
forced. Though article 100 of the Labor Law code calls for a
"heavy monetary penalty" of no less than 1,500 Turkish liras ($1
US) for failure to comply, which the judge can increase at his
discretion, the law does not appear to be strenuously enforced.
Indeed, some less scrupulous employers who are covered by the
10 7
law have avoided payment altogether.
In evaluating the Turkish maternity law, the fact that Turkey
is a semi-legalistic society should be borne in mind. Other laws
and customs restrict women's rights and ability to work. In Tur-
key, a husband can prevent his wife from working; if she works
without his permission, he has grounds for divorce.108 While
women may be restricted in their ability to work, they may also
be protected by other non-legal mechanisms when they become
pregnant. Different social arrangements might exist in other con-
texts not covered by the Labor Law, such as agriculture, unpaid
family work, and domestic work. In these other contexts, custom
or social pressures might dictate whether women work while
pregnant.
United States
Karen Keegan*
In the United States, no federal law currently requires employ-
ers to grant any form of maternity leave. While the Pregnancy

106Id. at 168.
107Interview with Guldal Erberk, Obstetrician and Gynecologist, Istanbul, Turkey (Jan.
1988).
113S. TEKELI, KADINLAR VE SIYASAL TOPLUMSAL HAYAT 219 (1982) (citing Medeni
Kanun, 159 Madde).
* Attorney, Arnold & Porter (Washington, D.C.); while Fellow at Women's Law &
Public Policy Fellowship Program at Georgetown (1985-86), was of counsel to the Na-
tional Organization for Women and other women's groups in an amicus brief filed in the
Cal Fed case and worked on technical issues involved in federal parental leave legislation.
 Harvard Women's Law Journal [Vol. I11

Discrimination Act of 1978 ("PDA")t0 9 essentially mandates that

employers who provide temporary disability leave must also pro-
vide equivalent leave for women affected by pregnancy and child-
bearing, it only assists those women whose employers already
have substantial fringe benefit programs. 10 State laws provide
the only public guarantee that women may return to their jobs
after bearing children.
Legislation now before Congress, however, would require em-
ployers to grant both male and female employees a minimum
amount of job-protected leave for childbearing and other types
of family leave, and would require employers to provide job-
protected leave for employees temporarily disabled by serious
health conditions."' The federal legislation has taken the "equal
treatment" approach of providing leave for workers temporarily
2
disabled by any serious medical condition, including childbirth."
Recently, though, one of the leading sponsors of the bill in the
Senate has suggested dropping the temporary disability portion
of the bill and pressing for the passage of the childbearing and
family leave sections of the bill alone." 3 While under the proposal
both male and female employees would continue to have the right
to take childbearing leave, eliminating the temporary disability
section of the bill would mean that pregnancy would be treated
differently and more favorably than other similarly disabling

109Pub. L. 95-555, 92 Stat. 2076 (1979) (codified at 42 U.S.C. § 2000e(k) (1982)).

110The language of the statute provides, in pertinent part, that: "[W]omen affected by
pregnancy, childbirth or related medical conditions shall be treated the same for all
employment-related purposes, including receipt of benefits under fringe benefit programs,
as other persons not so affected but similar in their ability or inability to work ..... Id.
"I Parental and Medical Leave Act of 1987, S. 249, 100th Cong., 1st Sess. (1987), and
Family and Medical Leave Act of 1987, H. R. 925, 100th Cong., Ist Sess. (1987) (as
substituted 11/16/87).
112Though the new legislation attempts to treat pregnant women the same as other
workers who have medical needs, it does not prevent states from treating them differently.
The House version reads in part: "Nothing in this Act shall be construed to supercede
any provision of any State and local law which provides greater employee family or
medical leave rights than the rights established under this Act." H. R. 925, supra note
111, at § 401(b). Thus, while the new legislation would not prohibit state laws that give
special treatment to pregnant women, it would establish at the national level a minimum
standard of leave for all temporarily disabled workers.
1 Parentaland Temporary Medical Leave: Hearingson S. 249 Before the Subcomm.
on Children, Families, Drugs & Alcoholism of the Senate Comm. on Labor and Human
Resources, 100th Cong., 1st Sess. (1987) (comments of Sen. Christopher Dodd) (unofficial
transcript available from Miller Press, 507 C Street N.E., Washington D.C. 20002) [here-
inafter cited as hearings].
1988] Maternity Leave

health conditions. This proposal to lop off half of the bill has
threatened chances for its passage, because proponents 'Of the
equal treatment approach, including many women's groups, are
unlikely to support and may even oppose what they perceive to
4
be a "special treatment" law."
The first bill to mandate leave for childbirth and other tempo-
rary disabilities was introduced in Congress in 1985.115 It required
employers to provide unpaid leave, with job security, to employ-
ees upon the birth, adoption or serious illness of a child and to
16
employees temporarily disabled by a serious medical condition."
The legislation.responded to a problem raised by the district court
decision in California Federal Savings and Loan Association v.
8
Guerra"7 ("Cal Fed") that struck down a California state law"
requiring employers to provide leave for childbirth, but not for
other temporary -disabilities." 9 The district court ruled that the
state law was inconsistent with and preemptedby the PDA since
it provided greater benefits to pregnant women than to other
employees with temporary disabilities.120 New legislation would
avoid this conflict by providing equal benefits for all workers.
Moreover, a federal law providing leave for workers temporarily
disabled by any medical condition, including childbirth, would

"1 See e.g., Amicus Brief of National'Organization for Women; NOW Legal Defense

and Education Fund; National Bar Ass'n, Women Lawyers' Division, Washington Area
Chapter; National Women's Law Center; Women's Law Project; and Women's Legal
Defense Fund in Support of Neither Party in California Federal Savings and Loan
Association v. Guerra, No. 85-494, at 11-20 [hereinafter Cal Fed] (arguing that the
Supreme Court should only uphold the California statute by requiring that employers
comply with both it and the PDA by providing an unpaid disability leave to all employees);
Amicus Brief of the American Civil Liberties'Union; the League of Women Voters of the
United States; the League of Women Voters of California; the National Women's Political
Caucus; and the Coal Employment Project in Cal Fed, at 10-35 (arguing that legislation
granting to pregnant women special benefits not granted to similarly disabled workers is
inherently dangerous because it provides a legal foundation for discrimination and rein-
forces sex role stereotypes).
"- Parental and Disability Leave Act of 1985, H. R. 2020, 98th Cong., 2d Sess. (1985).
16 Id.
11733 Emp. Prac. Dec. (CCH) at 32,781 (C.D. Cal. 1984), rev'd, 758 F.2d 390 (9th Cir.
1985), aff'd, 107 S.Ct. 683 (1987).
8CAL. Gov'T CODE § 12945(b)(2) (West 1980).
See e.g., Amicus Brief of American Civil-Liberties Union, et al., supra note 114, at
119
33, n.46 ("The impetus for [the federal parental and temporary disability legislation]
derives in substantial part from the concern of some legislators that sex-specific measures,
like § 12945(b)(2), are not harmonious with [the PDA], and, in any event, are an inade-
quate response to the problems encountered by all employees.").
12033 Empl. Prac. Dec. (CCH) at 1 32,782-83.
 Harvard Women's Law Journal [Vol. 11

more fairly accommodate the needs of all workers. Eventually

the Supreme Court upheld the California statute, ruling that the
PDA does not prohibit all preferential treatment of pregnant
workers. 121But by this time, equal treatment had already become
the model for federal pregnancy and temporary disability leave
122
legislation.
Now, the special treatment/equal treatment debate has surfaced
again. The proposal by Senator Christopher Dodd, the original
sponsor of the Senate bill, to drop the temporary disability leave
portion and to press for passage of the childbearing leave and
family leave sections alone' 23 has raised again the issues that
divided feminist groups in the Cal Fed case.124 This change, the
elimination of the temporary disability leave section, would not
improve its chances for passage since it does not address the
concerns of the bill's opponents.'21 Senator Dodd's suggestion,
M Cal Fed, 107 S. Ct. at 691-92 (1987).
122 The current House version of the Family and Medical Leave Act requires covered

employers to provide covered employees with ten weeks of "family leave" over a two
year period. H. R. 925, supra note 111, at § 103(a). Employees can take this leave at the
birth or adoption of a child or to care for a seriously ill child or parent. Id. In addition,
the bill grants employees up to fifteen weeks of medical leave for their own serious health
condition, as certified by a physician. Id. at § 104(a). All leave may be unpaid, id. at
§§ 103(c), 104(b), though preexisting health insurance coverage must continue during the
leave period. Id. at § 106(c). Employees who take leaves of absence are guaranteed their
existing jobs or similar positions when they return to work. Id. at § 106(a)(1). The Act
covers employers with fifty or more employees for the three years after enactment and
those with thirty-five employees thereafter. Id. at § 101(5)(A). Only workers who have
been on the job for one year and work at least twenty hours a week are covered. Id. at
§ 101(3)(A). An employer can exempt employees whose salary is in the top 10% of the
employer's workforce if the employer can show a business necessity. Id. at § 106(b).
The Senate version of the bill, S. 249, supra note 111, the Parental and Temporary
Medical Leave Act of 1987, is similar. It requires covered employers to provide up to
eighteen weeks of unpaid leave over a two year period for the birth, adoption or serious
illness of a child. Id. at § 103(a)(1). The Senate bill does not provide leave for the care
of a seriously ill parent. The temporary disability portion of the bill guarantees an em-
ployee up to twenty-six weeks of unpaid leave over a twelve month period for his or her
own serious health condition. Id. at § 104(a). The Senate bill would cover employers with
fifteen or more employees. Id. at § 102(4)(a).
'13See supra note 113.
124 See generally Williams, Equality'sRiddle: Pregnancy& the Equal Treatment/Special
Treatment Debate, 13 N.Y.U. REV. L. & Soc. 325-28 (1984-85) (discussing the special
treatment/equal treatment debate over the state law at issue in CalFed, and over a similar
state law at issue in Miller-Wohl Co. v. Commissioner of Labor & Indus., 685 F.2d 1088
(9th Cir. 1982)). Since William's article, Miller-Wohl has been brought in state court.
Montana's Supreme Court decision, 692 P.2d 1243 (Mont. 1984), was vacated and re-
manded by the United States Supreme Court for further consideration in light of Cal Fed,
107 S. Ct. 919 (1987), remanded, 744 P.2d 871 (1987).
125 See Hearings on S. 249, the "Parentaland Medical Leave Act of 1987" Before the
1988] Maternity Leave

based on his concerns about the cost of the leave bill 26 and the
approach that something is better than nothing, reflects an indif-
ference to the original impetus for the bill. It would convert that
bill into one that treats pregnancy differently and more favorably
than other similarly disabling health conditions. Under the equal
treatment view, such a special treatment law, like the legislation
at issue in Cal Fed, would perpetuate "an outmoded ideology-
woman as unique and separate, with a special reproductive role
in which the state has sufficient interest to single her out for
special treatment."' 127 Moreover, from a practical standpoint, the
law could encourage discrimination against women workers of
childbearing age and create hostility toward pregnant workers
28
who might be perceived as being accorded special privileges.
But perhaps most importantly, lopping off the temporary dis-
ability portion of the Senate bill, if a similar event occurs in the
House, may split off so much of the support from the legislation
that it will never be enacted into law. Although no women's
groups have gone on record as opposing a law of the sort sug-
gested by Dodd, given the positions such groups took in the Cal
Fed case, 129 it is not likely that they would strongly endorse such
special treatment legislation.
Much is at stake in the potential loss of the equal treatment
model. To substitute the special treatment approach for the equal
treatment model in pregnancy and temporary disability leave
legislation would uproot the law from its historical underpinnings
by not extending benefits to all members of society. So far, the
organizations supporting the equal treatment approach have pre-
vailed in the Congress. Only time will tell whether they can
maintain that position.

Subcomm. on Children, Family, Drugs, and Alcoholism of the Senate Comm. on Labor
and Human Resources, 100th Cong., 1st Sess., 1 (1987) (statement of Frances Shaine,
U.S. Chamber of Commerce) (objecting to the parental and disability leave legislation on
the grounds that employee benefits should not be mandated by the government at all).
'1 Senator Dodd's remarks were made in response to cost estimates by the General
Accounting Office. See Hearings, supra note 113.
127Williams, supra note 124, at 371.
128Id. See also supra notes 84-95 and accompanying text (even though both women
and men may take childbearing leave, women in Sweden were more likely to take the
leave than men).
129See supra note 114.
 Harvard Women's Law Journal [Vol. 11

Conclusion

Editors' Note

Women must be able to take childbearing leaves of absence

from their jobs, without penalization, if they are to achieve equal-
ity in the workforce. The Convention on the Elimination of All
Forms of Discrimination Against Women, as well as the policies
and laws of some countries, reflect the belief that special mea-
sures for women are often necessary to guarantee such de facto
equality.130
Every country examined in this piece, except Sweden and the
United States, takes such special measures by granting women
some form of maternity leave benefits. Though Sweden offers
benefits to both men and women, women take advantage of the
laws much more frequently than men. In the United States, even
parental leave is seen as special treatment, and if the "equal
treatment" advocates succeed, a national law will not emerge
unless it grants all workers temporary disability leave. Conse-
quently, such a law may not emerge at all.
Although a variety of countries throughout the world have
maternity leave policies, the laws were often passed not to pro-
mote women's equality, but for other reasons. In Chile, for ex-
ample, the law seems to have originated from an interest in
protecting fetuses. Other countries which prohibit women from
doing certain types of work while pregnant, or mandate leave
before childbirth, may have had similar concerns. In Singapore
there is a clear economic need to include more women in the
workforce and still the maternity leave benefit is modest in com-
parison to other countries. If the leave were to be increased, it
would likely be done out of economic concerns coupled with the
desire to have women at home while their children are young.
Most of the countries examined have mandatory leave policies,
although some provide additional optional leave or medical leave.
While mandatory leave is troublesome because it does not pro-
vide women with a choice, it actually protects many women from
exploitation because they cannot be forced to waive their rights.

130See notes 11, 12 and accompanying text; Constitution of India, Art. 15, supra note
55 and accompanying text.
1988] Maternity Leave

Unfortunately, mandatory leave also prevents women from work-

ing, which means they may receive less pay during that time,
their opportunities for promotion are often decreased and em-
ployers may be reluctant to hire women at all.
Although the laws are mandatory in most countries, they do
not necessarily reach most women workers nor are they effec-
tively enforced. Indeed, the leave laws of several countries only
reach formal employment relationships. This situation is partic-
ularly true in many of the African countries and in Turkey where
agricultural workers, who comprise a large part of women work-
ers, are not covered by the labor laws and leave policies. Though
India has made an attempt, at least formally, to cover agricultural
workers, many women either do not know their rights or are
unable to enforce them. In other countries, such as Turkey, dif-
ficulties in enforcing the laws add to their ineffectiveness. Even
in Sweden, where the laws are enforced, societal and economic
pressures prevent many men and some women from taking ad-
vantage of the benefits.
The goal of the United Nation Convention on the Elimination
of All Forms of Discrimination Against Women is to acheive
equality for women in both the home and the workplace. This
stated international goal has not been acheived in the countries
examined. Rather, even laws which might move countries closer
to this goal are often ineffective and do not reach most women.
Maternity leave policies alone will not eliminate women's sub-
ordination. Other legal and societal changes are also needed.