MATERNITY LEGISLATION: Protecting women’s rights to breastfeed

Item

Title
MATERNITY LEGISLATION:
Protecting women’s rights to
breastfeed
extracted text
SDA-RF-CH-1.49

WORLD ALLIANCE FOR BREASTFEEDING ACTION

WABA ACTIVITY SHEET

6

PO Box 1200,10850 Penang, Malaysia. Tel: 60-4-658 4816; Fax: 60-4-657 2655

MATERNITY LEGISLATION:

Protecting women’s rights to
breastfeed
Today, more and more
women of child-bearing
age are working outside
the household, in work that
keeps them far from home
for long hours with rigid
regimes.
Increasingly,
women are seeing them­
selves and being viewed by
society as independent
economic units responsible
for their own economic
survival and well-being. In
1990, 828 million women
were officially estimated to
be economically active in
the labour force.

Since the definition of
economic activity excludes
such unpaid work as subsis­
tence agriculture, house­
work and child care, the
actual figures for women at
work are far higher.

The majority of workers are
also parents; women’s dual
role as workers and mothers
needs to be viewed in its en­
tirety. Society must respect
and accommodate women’s

birth, breastfeed her infant
and to give her the oppor­
tunity to spend time with
and provide care and nurtur­
ing for the young child to
help the child adjust to a
new environment. Paid
maternity leave guarantees a
continuing source of income
and employment security
following delivery.

Graphic by Paulo Sanios, Brazil

productive and reproductive
roles. Child bearing is a
biological function that only
women can assume. Yet,
society denies most women
maternity benefits. Mater­
nity benefits are basic
human rights for women.
Women who are employed
are entitled to paid mater­
nity leave because it is a
health measure to protect
mothers and infants in late
pregnancy and the early
post-natal period. Maternity
leave is essential to allow a
mother to recover from
1

Women who receive mater­
nity leave are more likely to
remain in the workforce:
this has economic benefits
for
employers;
social
benefits for women, families
and society.

“The promotion of breastfeed­
ing must not be seen as an ex­
cuse to exclude women from
the labour force. The burden
should no longer fall on
women to choose between
breastfeeding and work. The
burden is on society to facilitate
breastfeeding and indeed child
care.” James Grant, Executive
Director of UNICEF.

Traditional
societies
recognised, the need for
pregnant
women
and
women who had recently
given birth to benefit from
additional social support.
In many societies, the ex­
tended family provided a
six-week period of rest and
seclusion, or at least, help
with household chores, for
women who had given
birth. For example, in
Africa,
the
woman’s
mother-in-law looked after
her and her baby in many
societies for one to six
months. This ensured that
mother and baby bonded
and breastfeeding became
well established and main­
tained. In addition, the
mother would be relieved
of her normal household
chores and she would be
given special foods. Often a
ceremony of re-integration
into society marked the
- close-of-this- period of. so-_
cial withdrawal.
Increasing
urbanisation
and dislocation of the
extended
family
have
weakened these mecha
nisms of social support to
enable mother and baby to
rest and recover together.
Maternity legislation has
been introduced in some
countries as a step towards
replacing these social tradi­
tions.

The International Labour
Organization (ILO) regu­
lates a wide range of inter­
national and labour issues
through standards that are
contained in Conventions
and
Recommendations
adopted by the Interna­
tional Labour Conference.

Mother Friendly
Workplaces
Existing employment policies
in the formal and informal sec­
tors generally do not promote
or support optimal breastfeed­
ing,
that
is,
exclusive
breastfeeding for four to six
months. Whatever or wherever
her workplace, a working
woman needs support from her
family, the community and
society at large in her deter­
mination to breastfeed her
baby. The workplace needs to
be mother-friendly to ensure
that the optimal breastfeeding
practices initiated in hospitals
and maternities are sustained
when mothers return to work
and in employment, remem­
bering that for mothers, both
the home and the place of
employment are workplaces.

day breastfeeding breaks.
In 1952, this was revised to
include women workers at
home and provide for
higher
protection:
14
weeks maternity leave,
higher cash benefits includ­
ing remunerated breast­
feeding breaks and more
employment security. Two
Recommendations,
one
from 1921 (Number 12)
and one from 1958 (Num­
ber 110) extended the
scope of the protected

A mother-friendly workplace
can support and promote
breastfeeding by providing:
•
•

•

paid maternity leave;
creche facilities at the
workplace;___
nursing breaks during
working hours and flexible
working hours to fit in with
the woman’s infant feeding
schedule.

Conventions are like inter­
national treaties; once
ratified,
they
create
specific, binding obliga­
tions.
The
1919
Convention
Number 3 of the Interna­
tional Labour Office pro­
vides international stan­
dards on maternity protec­
tion for women employed
in industry and commerce;
it calls for 12 weeks of
maternity leave with cash
benefits and prohibition of
dismissal and one hour per

Adapted from Paulo Santos, Brazil

group of women workers to
women
employed
in
agriculture and on planta­
tions. The 1979 Conven­
tion on the Elimination of
all Forms of Discrimina­
tion
against
Women
(CEDAW) states “Parties
shall prohibit, subject to the
imposition of sanctions, dis­
missal on the grounds of
pregnancy or maternity
leave ... shall introduce
maternity leave with pay or
with comparable social
benefits without loss of
former employment, senio­
rity and social allowances.”
To date, the 1919 and
1952 Conventions have
been ratified by 29 and 22
countries respectively.

Actions
In 1988, Elisabet Helsing
of the WHO regional of­
fice for Europe said: “If
society hinders the optimal
breastfeeding by mothers
who work outside the home,
society needs to change, not
women.” This change will
come about only if we
mobilise action for change.
Maternity
protection
measures concern all of us.
Whether you are a motherto-be, or a husband, sister,
brother, grandmother or
grandfather of a motherto-be, the protection of
working women concerns
YOU.
Wherever you
work, you can act to bring
about changes to enable
and support all mothers to
breastfeed!

• If you are having a
baby, or hoping and
planning to have a
baby, do you know
your maternity rights?
• If your wife, sister or
daughter is having a
baby, would you help
her stand up for her
maternity rights?

• If you are an employer,
would you grant her
the rights she is en­
titled to?
• If you are a trade union
member, would you
work
to
improve
maternity
leave
provisions?

"... throw the stone in and create the ripples of social support... ”

Throw the stone (see figure
above)
The stone represents the
minimum requirements to
enable women to work and
breastfeed. We must throw
the stone in and create the
ripples of social support to
change society. YOU can
throw the stone to create
the ripples and help to
shape the laws to protect
women’s rights to mater­
nity protection:

• at family level - share
child care and support
measures for parental
leave.
• at community level create
community
creches and breastfeed­
ing counselling services.
• at workplace level - take
maternity leave if you
have it or mobilise sup­
port to instate maternity
leave; advocate nur­
series and breastfeeding

facilities
workplace.

in

the

• at national governmen­
tal level - ratify the ILO
Conventions, enact and
enforce adequate mater­
nity leave legislation.

• at regional level
support maternity leave
provisions in countries
in your region and adoptsupranational directives
(such as the European
Community Directive)
which are binding on
member states.
• at international level pressure the ILO to
revise and update the
1919 and 1952 Conven­
tions by 1996, in ac­
cordance
with
the
Convention for the
Elimination of all forms
of
Discrimination
Against
Women
(CEDAW)
which
provides for revision of
legislation,
including
maternity legislation.

Maternity

Protection

Our objectives
We need to build capacity among communities to help them learn about women’s rights to maternity
protection. We also need to give women the tools to understand the connections between their own situa­
tions and the prevailing conditions of their workplace.

We need to organise communities and network with others to share information and resources, create in­
itiatives in the workplace to lobby for protective maternity benefits and to build linkages and alliances
among groups with common interests.
We need to influence policy to protect and strengthen the right of women to organise in the workplace and
in communities and to influence employers and governments at all levels. Women’s interests must be rep­
resented in discussion and negotiations that reaffirm employers’ and governments’ responsibility to
guarantee basic rights to maternity protection.

• Review the
policies
regarding
maternity
leave
at
your
workplace.
• Review the laws in your
country:
are
there
provisions for maternity
leave? who does it
cover? what are your en­
titlements?
• Review the 1919 and
1952 ILO Conventions
and the CEDAW Con­
vention. Summarise the
information in non-technical language to help
others understand the
provisions.
• Learn about
what your
colleagues
and
employers
think. What
are
likely
resistance points if you
pursue maternity leave?
• Learn about the mater­
nity protection needs of
domestic and agricul­

tural workers: are they
covered by legislation?
Has your government
ratified the ILO Con­
vention, the Conven­
tion on the Elimination
of all Forms of Dis­
crimination
Against
Women? Has it signed
the World Summit for
Children Declaration?
If not, then why not?
Research
maternity
legislation in other
countries:
if
the
provisions are better
than in your country,
how
did
women
manage to achieve
them? How long did it
take? Who pays for
maternity leave?

Find out about Free
Trade or Tax Free
Zones and how they af­
fect national legislation.
Often multi-nationals
offer no form of mater­
nity benefits and exploit
local labour.

Estimate
the cost of
maternity
leave
in
your place
of employment and con­
vince employers that it is
worthwhile to provide
maternity benefits.

o Undertake
a
com­
parative study of mater­
nity entitlements in
other firms, NGOs or
organisations.
Pub­
licise the findings!

Produce in­
formation
describing
the
mea­
sures
of
maternity
protection
in
your
country. Use straightfor­
ward language and il­
lustrations to inform
women of their entitle­
ments and how to claim
them.
• Write up case studies to
demonstrate how it can
be done and to show
how everyone (em­
ployees and employers)
can benefit.

Call
Inform employers of
the
advantages
of
protecting
women
workers, and of provid­
ing workplace nurseries
with
support
and
facilities for breastfeed­
ing.
Organise
ORGANISE
debates
and meet­
ings
to
nJ
discuss
the issue
so that all sides can air
their positions and
build consensus.

Organise women to
report on provisions in
their
workplace
develop guidelines and
forms to facilitate infor­
mation gathering.
Organise training ses­
sions for employers on
the importance of op­
timal breastfeeding and
provisions for women
workers to breastfeed
their babies.
Organise a letter-writ­
ing
campaign
to
employers, to mem­
bers of parliament, to
leaders of trade unions
and women’s orga­
nisations.

Mobilise
community
to
action
lobby
1for
maternity
benefits.

for

Action

Form coalitions with
allies to present a
united call for action.

Monitor your local
situation: if there are
laws concerning mater­
nity protection mea­
sures in your country,
are they enforced? If
not, why not? Are there
sanctions against em­
ployers who break the
rules?
Publicise the results of
your monitoring: sup­
port good employers
and identify bad ones.
Involve mother-friendly
employers, such as the
head of a Swiss bank
who said: “By providing
a
creche for my
employees, I keep welltrained, reliable and
motivated
female
workers on my staff and
the creche in fact pays
for itself by saving on
training and recruit­
ment costs.”

Mobilise
support
among decision-makers
and employees’ repre­
sentatives to support
mother-friendly work­
place initiatives.
Reach out to the legal
community and policy
makers to gain their
support and assistance
in drafting legislation.

• Show workers
and
employers how im­
proved working hours
and safety conditions
for
breastfeeding
mothers
can
also
improve conditions for
all parent-workers and
indeed
the
whole
workforce. An exten­
sion of maternity leave
can pave the way to ex­
tend the provision of
parental leave to care
for a sick or handi­
capped child.
o Pool
resources
and share
information
with others
concerned
with mater­
nity benefits. Develop a
network of concerned
individuals
and
or­
ganisations and mecha­
nisms to share infor­
mation and act jointly.
• Share your ideas and
concerns with' trade
union leaders, church
leaders,
community
leaders.
• Publicise the issue in
the media: give press,
radio and television in­
terviews.

Source of graphics provided by IWTC
(International Women's Tribune Centre).

Existing provisions
The 1985 ILO global survey
of
maternity
benefits
analysed national legislation
of 127 countries for which
information was available.
This review found that the
average length of maternity
leave in the world was be­
tween 12 and 14 weeks. Ap­
proximately 25% of the
countries provided less than
this average; many of these
were developing countries.

In 1990, the IBFAN Latin
America Coordinating Of­
ficer reviewed maternity
leave provisions in 28
countries in Latin America
and the Caribbean. Like the
ILO survey, IBFAN found
that many countries have
laws and regulations con­
cerning maternity leave. The
nature and scope of the
provisions varied: laws relat­
ing exclusively to maternity

protection, laws on female
labour, labour codes, laws
on conditions of employ­
ment in certain sectors of
the economy, social security
laws and labour ordinances
or regulations. A large num­
ber of countries also have
collective agreements to
reinforce and supplement
existing legislation or fill the
gap where there is no such
legislation.

In spite of these provisions,
many women do not have
maternity protection be­
cause these provisions
mainly cover women who
are employed in the formal
sector. Also, there is very
little information available
about the enforcement of
these provisions. There are
some reports that often
women do not take full ad­
vantage
of
maternity
protection laws and regula­

tions because they themsel­
ves are not aware of them.

In Guatemala, women with
social welfare coverage are
entitled to 75 days of
maternity leave. They are
entitled to 100% of earn­
ings during maternity leave
which is to be paid by the
employer if the workers
are not covered by social
welfare. There is prohibi­
tion of dismissal on ac­
count of pregnancy and
provisions exist for nursing
breaks when women return
to work. The Ministerio de
Trabajo y Previson Social
and Oficina Nacional de la
Mujer, in collaboration
with
the
Comision
Nacional de Promocion de
la Lactancia Materna has
developed an illustrated
booklet to inform women
about existing laws.

Maternity and Paternity Leave in Belgium
In Belgium, women are entitled to 15 weeks maternity leave, of which eight weeks must be taken
after the birth, with benefits equivalent to 82% of earnings for the first month and 75% of earnings for
the remaining weeks up to a maximum income level. Maternity leave is paid by local authorities
rather than employers, for up to 15 weeks. There are also three days of paternity leave at 100% of
earnings. Public sector employees are entitled to four days of paternity leave.

The Casterman Company, a publisher that employs 650 people (40% of them are female), was
experiencing high rates of absenteeism because local child care services were not open during the
hours needed by part-time and shift workers. In response, Casterman set up a company creche in
partnership with a regional government agency, FOREM, with funding from the Ministry of Labour.
The creche is for children and grandchildren of all employees, whether working full or part time. It is
open to working days from 0545 to 2230 to cater for shift workers who make up 83% of the
workforce. There are, at any one time, between 25 and 30 children in the creche. Mothers can
breastfeed their babies during the day and parents can be quickly contacted when necessary. There
are also facilities for children who are not well. The company subsidises the creche fees; employees
pay approximately 70% of the total fee for a place. Altogether, the creche costs the company
USS43.795 a year. Since the opening of the creche in 1983, recruitment difficulties have eased and
absenteeism has been reduced.

Source: The Family Friendly Employer. Examples from Europe. By C Hogg and L Harker. Daycare
Trust, in association with Family and Work Institute, 1992.

Costs
A central issue in the
debate concerning mater­
nity leave is who should
pay for it and how. A com­
mon argument against paid
maternity leave is that it is
costly to the employer. To
estimate the true cost of
maternity leave, employers
need to consider the cost of
alternatives, for example,
the cost of replacing the
employee. Studies show
that often it is far less ex­
pensive to support leave
than
to
replace
an
employee. It should be
noted that the taking of
maternity leave would have
a low incidence in the
working lives of women - in
Australia, it is estimated
that only about 2.8% of the
total labour force are
potentially eligible for
maternity leave annually.
Models and guidelines for
estimating cost can be
found in the Australian
document “Paid Maternity
Leave” and the Family and
Work Institute manual
“Parental
Leave
and
Productivity”.
The discussion paper on
paid maternity leave by the
National Women’s Con­
sultative
Council
of
Australia points out that
where
provisions
are
voluntary, they tend to
benefit mainly highly paid
women in the formal sec­
tor.
Employer funded
maternity leave is likely to
increase
retention
of
skilled staff, encourage
employer investment in
human capital and bring
productivity
and
staff

payment not
employment.

Graphic by Paulo Santos, Brazil

morale as well as facilitate
an expansion in the nation­
al skills base. Unfortunate­
ly, it could also create
disincentive to employ
women of child bearing
age, increase casualisation
of the workforce and cre­
ate difficulties for small
business.

The advantages of in­
dividual funding are: there
are no large increases in
government spending and
no disincentives to employ
women; casual workers are
able to participate and
receive benefits. However,
this option does not recog­
nise the social value of
children, only more highly
paid women would be like­
ly to afford to make savings
and would probably be
feasible for the first baby.
Government
funding
would ensure that mater­
nity benefits are available
to lower-paid women as
well as more highly paid
women. But it would in­
volve increase in govern­
ment spending, could be
subject to income tests un­
likely to be paid at wage
rates, and so could become
a targeted income support

7

linked

to

Ideally, the cost for mater­
nity leave or benefits
should be shared between
the government, employers
and individuals. Each
employer
and
country
needs to review their
policies and find the best
mechanism
to
ensure
universal access to mater­
nity benefits - such benefits
must reach the employed
and
unemployed.
To
achieve this, it is likely that
legislation will be needed
to issue the mandate and
ensure compliance. Legis­
lation is important but will
have little or no impact if
the necessary resources for
implementation are not
available. The role of
government is to set a
climate of opinion and to
create an enabling environ­
ment rather„than d_eliverjiJ!
services. Governments can
take a lead in acknow­
ledging that child care is
the responsibility of society
as a whole. They can then
encourage attitudes on the
part of men and employers
that ensure that they too
take on their share of the
task, both in the home and

Resources
ILO Standards and Women Workers, ILO 1990. Available from: International Labour Organization,
CH-1211 Geneva 22, Switzerland.
The World’s Women, Trends and Statistics, 1970-1990, United Nations Publications, June 1991. Available
from United Nations Publications, New York. USS

Women and Child Care. Bernard van Leer Foundation Newsletter Number 71, July 1993. Available from:
Bernard van Leer Foundation, PO Box 82334,2508 EH The Hague, Netherlands.
The Family Friendly Employer. Examples from Europe. By C Hogg and L Harker. Daycare Trust, in
association with Family and Work Institute, 1992. Available from: Families and Work Institute, 330
Seventh Avenue, New York, NY 10001, USA. US$25.

Paid Maternity Leave. National Women’s Consultative Council, Australia. Available from: Office of the
Status of Women, c/o DAS Distribution, PO Box 655, Fyshwick, ACT 2609, Australia. Free.
Beneficios Sociales que protegen la maternidad en algunos paises de America Latina y el Caribe by C
Muxi. Coordinacion regional IBFAN, Uruguay, 1990. Available from: IBLACO, Casilla Correo 6107,
Correo Central, Montevideo, Uruguay. US$4.

Fair Law, unfair practices? Benefiting from protective legislation for pregnant workers in Italy and
France, by P Romito and M J Saurel-Cubizolles. Social Science and Medicine, vol. 35, no. 12, pp
1485-1495,1992. Available from: INSERM U 149, Unite de Recherchcs Epidemiologiques sur la Mere et
1’Enfant, 16 av. P Vaillant-Couturier, 94807 Villejuif, France.

Parental Leave and Productivity. Current Research. Edited by D E Friedman, E Galinsky and V
Plowder. Families and Work Institute, 1992. Available from: Families and Work Institute, 330 Seventh
Avenue, New York, NY 10001, USA. US$25.

“La Mujer y Sus Derechos de Trabajo” to inform women of these and other laws that protect working
women.
Maternity benefits in the eighties. An ILO global survey (1964-84). ILO, 1985. Available from:
International Labour Office, CH-1211 Geneva 22, Switzerland.
La Mujer y Sus Drechos de Trabajo: Ministerio-de~Trabajo-y-Previson Social; Oficina National de la
Mujer and Comision National de Promocion de la Lactancia Materna. Available from: CONAPLAM, 6a
Av. 0-60, Torre Profesional 1,8o Nivel Of. 804, Gran Central Comercial Z4, Guatemala.

Legislation and Policies to Support Maternal and Child Nutrition, Report No 6. Clearinghouse on Infant
Feeding and Maternal Nutrition, 1989. Available from: Clearinghouse, c/o APHA, .1015 15th St., NW,
Washington DC 20005, USA. US$10 for developed countries.

Amamentacao Direito da Mulher no Trabalho, Denise Arcoverde & Paulo Santos,
ORIGEM/WABA/MINA, Brazil, June 1993. Available from: ORIGEM-PE, Av. Beira Mar, 3661 Lj. 19,
Casa Caiada - Olinda-PE, 53130-540 Brazil.

This activity sheet was developed by Alison Linnecar, Geneva Infant Feeding Association and Virginia Yee,
Clearinghouse on Infant Feeding and Maternal Nutrition in association with the WABA Information task force. For more
copies, contact the WABA Secretariat, PO Box 1200, 10850 Penang, Malaysia.
\

Clearinghouse
APHA
1015 Fifteenth Street, NW
Washington DC 20005, USA
Tel: 1-202-789 5600; Fax: 1-202-789 5661

GIFA
C.P. 157
1211 Geneva 19
Switzerland
Tel: 41-22-798 9164; Fax: 41-22-798 4443

This activity sheet is part of a series produced by WABA to assist groups with their activities to protect, promote and support
breastfeeding, particularly to provide action ideas that could be focused on World Breastfeeding Week.

k_________________________ ___________________ ______________________ /
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