Dr. Mónika Ambrus and Dr. Brigit Toebes, University of Groningen
Most Dutch mothers go back to work after 16 weeks of paid maternity leave, as regulated in the Act on work and care (Wet arbeid en zorg). They carry their pump (or more often give up breastfeeding), they bring their baby to the nursery/’guestmother’ (or find other arrangements), and they try to focus on their work. It all sounds as if this is working well. But if we scratch beneath the surface, there is a lot of struggle going on in a mother’s psyche: it is rather hard to leave behind your baby who needs body contact, exclusive attention, breast etc, despite the fact that the DVD about breastfeeding that comes in your birth giving package from your health insurance company indicates differently; it is rather hard to focus on work when you have to feed during the nights and when you need to think of the next pumping; and so on.
Admittedly, the Dutch legislation implements a European Union directive (Council Directive 92/85/EEC on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding), and in this regard goes two weeks beyond the minimum rules set in this Directive. In 2008 a proposal was made by the Commission to extend these 14 weeks of paid maternity leave to 18 weeks (COM(2008) 637). This was accepted and amended by the Parliament extending the leave to 20 weeks (P7_TA(2010)0373). Currently, 15 EU Member States have at least 18 weeks of paid leave, and 10 Member States would be in compliance with the Parliament’s proposal. The EU proposals to raise the length of leave were made in order to be in line with ILO’s Recommendation 191 which sets the standard at 18 weeks, raising it from 14 weeks. Indeed, it has been argued that the Directive has not changed in the last 20 years, and since its adoption important changes have taken place in society. The proposed amendment highlights that maternity leave is a significant aspect of the health of the mother and the child, and thus helps to reconcile family and professional life, contributing to higher employment rates of women, which subsequently contributes to higher fertility rates and higher economic independence of women. In other words, the idea behind the proposed European legislation is to achieve greater equality between men and women. Similar considerations have been formulated in the legislative history of the Dutch act. But is this the only interest that needs to be weighed when defining the desirable extent of paid maternity leave? How can we actually define what is the most acceptable extent of paid maternity leave? Which interests should be taken into account in trying to find a balance in this regard? International law might provide some guidance in this regard.
Arguably, there are three main groups whose interests need to be considered: children, women and society.
The interests of the child clearly need to be taken into account, even though these are often strongly connected to the interests of the mother, and thus not mentioned separately in the legislative history of either the Dutch act or the EU directive. At the international level there is a specific treaty focusing on the rights of the child, the Convention on the Rights of the Child. In its Article 3(1) it explicitly states that ‘[i]n all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’ (emphases added). This provision and the concept of the ‘best interest of the child’ was interpreted by the Committee on the Rights of the Child (CRCee) in its General Comment 14. According to the Committee, the interest of the child should be taken into consideration ‘in all actions’ which either directly or indirectly affect children. Very importantly, the term ‘a primary consideration’ ‘means that the child’s best interests may not be considered on the same level as all other considerations’. The Committee acknowledges that a potential conflict may arise between various interests, and it explains that in such situations the ‘best interest of the child’ is not merely one of the interests that needs to be balanced, but ‘the child’s interests have high priority’. Put differently, the interest of the child should have a greater gravitas when a decision is made that concerns the child. The length of maternity leave is undoubtedly such a decision. As such, the question arises: what exactly needs to be taken into consideration when such a decision is made? In order to determine this, the various physical, mental and emotional needs of the baby should be defined and analysed. Arguably, in defining maternity leave, often the physical and mental needs are overemphasized – probably because they are ‘more’ quantifiable –, notwithstanding the developments in psychology highlighting the baby’s emotional needs, and notwithstanding their interconnectedness. Due to space constraints, only the most important physical needs of the baby and its inter-relatedness with his or her mental and emotional needs will be highlighted here, which is access to adequate food.
Admittedly, the most important physical need of a baby is milk. In this regard, the World Health Organization (WHO) advises exclusive breastfeeding up to 6 months of age, ‘with continued breastfeeding along with appropriate complementary foods up to two years of age or beyond.’ Obviously, a baby can also grow up without breastfeeding, but many studies have shown its impact on the physical, mental and emotional well-being of the baby. ‘Exclusive breastfeeding reduces infant mortality due to common childhood illnesses such as diarrhoea or pneumonia, and helps for a quicker recovery during illness.’ In addition, it ‘protects the infants against infectious and chronic diseases.’ It also ‘promotes sensory and cognitive development’. The important emotional aspect of breastfeeding concerns the relationship with the mother (attachment parenting) and its relaxing effect. So it is not only the breast milk that the baby needs, but it is the breastfeeding that is in his or her best physical, mental and emotional interest. All in all, based on current research findings the WHO concluded ‘with full confidence that breastfeeding reduces child mortality and has health benefits that extend into adulthood.’ For this reason, WHO, among others, suggests breastfeeding on demand and no use of bottles, teats or pacifiers. Although this position of the WHO is not binding, it is highly authoritative as it is supported by scientific evidence. If we thus explicitly weigh the length of maternity leave in the interests of the child, the minimum extent of maternity leave should be six months, and ideally one year until complementary food takes up a more important segment of feeding. And this position is reached only on the basis of adequate food. A similar conclusion was also reached by a recent study reported in the Volkskrant on 25 April 2015.
When considering the interests of the mother, the explanatory memorandum of the proposed amendment to the EU directive emphasises equality between men and women, economic independence of women, better reconciliation of professional and family life, and improvement of health. An impact assessment carried out by the European Commission points out that ‘[a] longer period of being at home and of breastfeeding helps the mother to avoid certain illnesses (…). It would allow mothers to build up a stable relationship with their child and recover completely from giving birth.’ Another study (ECORYS) of 2007 provides evidence that ‘job protected paid leave is associated with higher rates of breastfeeding which is by e.g. the WHO considered important to child health.’ Some aspects that need to be taken into consideration with regard to women are obviously linked to their babies. Breastfeeding contributes to the health of both the mother and the baby – evidence shows that those who breastfeed (longer) have less risk of breast cancer. These studies also underline the importance of a longer maternity leave – also from the perspective of the labour market position of women.
Undeniably, another aspect that needs to be considered in this regard is the free choice of women. Many women are surely relieved to return to their jobs after 16 weeks. However, in the Netherlands there is certainly also pressure from employers and the social environment to return to one’s job quite quickly. Admittedly, the set minimum would not take away the possibility of getting back to one’s job sooner than the minimum, but would guarantee that those who would rather take care of their babies for a longer period can do so without any victimisation from their employer or the society.
And what about the interests of the society? Society at large is clearly in need of healthy babies and mothers, high employment rates and procreation – just to name a few that were also mentioned in the preparatory documents of both the Dutch and EU legislation. So there does not seem to exist any conflict among the various interests represented here. The most significant concern from the perspective of the society is the actual (and one would be inclined to add, the visible) cost of paid maternity leave. While the cost of leave can actually be calculated, the costs of an unhealthy baby and mother are difficult to calculate, and so are the lack of procreation, or the financial effects of a higher unemployment rate. As the study discussed in Volkskrant also highlights, investment in the first year of the baby’s life will pay off later.
However, there is also another important consideration. While there is no scientific evidence yet for this assertion, it is possible that mothers who stay longer at home, are more motivated to return to their jobs. In the Netherlands, where maternity leave is only 16 weeks, women have more part-time jobs and are more inclined to leave their jobs after the birth of their first child. In Sweden, where maternity leave is longer, women participate more actively in the labour market. Returning to a job once recovered fully from childbirth and having built up a stable relationship with their child may encourage women to return to their jobs. This, ultimately, benefits the participation of women in the labour market, and it ultimately benefits the economy at large.
All in all, an extension of the current maternity leave up to 24 weeks after childbirth would be desirable in the Netherlands (as well as in the EU), which would bring maternity leave in line with WHO’s guideline of exclusive breastfeeding for six months
 Committee on the Rights of the Child, ‘General Comment No. 14 (2013) on the Right of the Child to Have his or her Best Interests Taken as a Primary Consideration (art. 3, para. 1)’, CRC/C/GC/14, 29 May 2013, para 37.
 Ibid. para 39.
 WHO, ‘Exclusive Breastfeeding’ <http://www.who.int/nutrition/topics/exclusive_breastfeeding/en/> accessed 4 May 2015.
 WHO, ‘Maternal, Newborn, Child and Adolescent Health’ <http://www.who.int/maternal_child_adolescent/topics/child/nutrition/breastfeeding/en/> accessed 4 May 2015.
 ‘Jaar verlof voor ouders na geboorte is beste voor kind’ (Volkskrant, 25 April 2015) <http://www.volkskrant.nl/wetenschap/jaar-verlof-voor-ouders-na-geboorte-is-beste-voor-kind~a3979410/> accessed 4 May 2015.