The Need to Guarantee Female Workers' Motherhood Rights

At that time, even though they are capable and have full labor capacity, they are not allowed to participate in labor relations within the scope of the law's prohibition.

Third, employees must "Work under a labor contract, be paid and be subject to the management and direction of the employer ". Labor contracts are signed according to an agreement but must be within the framework and comply with the law. Employees must do the assigned work and enjoy benefits, be paid according to regulations, have obligations and be subject to the management of the employer.

+ Second condition: For a person to be identified as a female, they must be of female gender. According to the provisions of Clause 2, Article 5, Law on Gender Equality 2006, gender is a concept that refers to the biological characteristics of both men and women. Based on this definition, it can be understood that female gender here is viewed from the perspective of female biological characteristics. In fact, determining the concept of gender is still quite sensitive in some issues. With the increasingly modern development of science and technology, in recent years, there have been many cases of a person having a partially or completely female appearance but not their true form when they were born. In other words, there is no consistency between the gender they are expressing and the gender actually recognized in their identity documents. The problem is that the labor law determines whether an employee is considered a female based on the real gender at birth or the gender they express at work.

In response to this issue, the 2005 Civil Code has a provision in Article 36: The right to re-determine gender, to partly resolve the concerns of those who are unfortunately born with a gender different from their physical appearance. In addition, in today's society, gender reassignment occurs during daily activities and interactions, causing them to "transform" into another gender and they decide to change their gender. Therefore, the 2015 Civil Code has a provision on the right to gender reassignment in Article 37. However, from

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From recognition in principle to implementation in practice is a very long process, going through many complicated procedures. To implement this content, it is necessary to wait for Decrees and Circulars guiding the order, procedures, and conditions for gender conversion...

Therefore, this situation has not been completely resolved and the reality of this situation has raised some rather difficult issues. Therefore, to better ensure the rights of female workers, including the rights of transgender workers, the labor law needs to clarify the concept of female workers to have a truly clear understanding of the legal aspect of this issue.

1.2 Ensuring the motherhood rights of female workers

1.2.1 Concept

Ensuring rights, in a broad sense, includes the totality of policies, laws, and other conditions such as economic, political, cultural, and mechanisms to ensure the implementation of rights in practice. In a narrow sense, the right to motherhood only includes institutions (policies, laws) and corresponding institutions to ensure the implementation of rights in practice. Thus, with the above analysis of the concept of motherhood, we can fully and generally understand the concept of ensuring the motherhood rights of women, which is the totality of policies, laws, and economic, political, and cultural conditions related to the ability of women to exercise or acknowledge having biological or adopted children regardless of their marital status and the mechanisms to ensure their implementation in practice. For female employees, the content of ensuring the right to motherhood includes the right to work, ensuring reproductive health, ensuring the right to pregnancy and childbirth, ensuring the ability to care for and raise children of female employees during the working process... This content is regulated and protected mainly by the provisions of labor law and social insurance law. Accordingly, social insurance law ensures the right to motherhood of female employees through the social security mechanism,

create conditions in terms of time and income for female employees to exercise their motherhood rights such as sick child care regime, maternity regime, etc. Meanwhile, labor law ensures female employees' motherhood rights in relations with employers to regulate and avoid cases where employers affect female employees' motherhood rights.

1.2.2 The need to ensure the motherhood rights of female workers

Firstly, motherhood is a woman's natural duty that needs to be maintained.

maintain

“When the bamboo gets old, the young bamboo grows” that is the law of nature. Likewise, creation

Nature has endowed women with a special body to conceive and give birth in order to maintain the species, and therefore the function of maintaining the species can be considered an important function of women, mothers.

In some countries such as Korea, China, Thailand, Japan ... due to development conditions, women " forget " their natural role, causing the country to face many risks, especially the risk of population aging and labor shortage. In Vietnam, although many years ago, it was necessary to implement a planned birth policy to avoid the burden of population, so many places have a decreasing birth rate and have reached an alarming level. Vietnam's future labor force is at risk of shortage, Vietnam's population has officially entered the "aging" stage since 2011 [14]. In Ho Chi Minh City, according to data from the Department of Population and Family Planning, in 2013, the average number of children of a woman of childbearing age was 1.48 children, by 2015 it had decreased to only 1.45 children. The birth rate has shown signs of decreasing, causing the city government to worry about the aging population and labor shortage in the future, which is a worrying situation [15]. This situation stems from many different causes, one of the main reasons is that the current female labor force tends to marry late and is " afraid " of having children for fear of affecting career opportunities, work and ability.

Therefore, in order for the country to develop sustainably, it requires appropriate policies and regulations to ensure the motherhood rights of women.

Second, women need to be cared for throughout pregnancy, childbirth and child rearing.

According to many studies by scientists, during pregnancy, women have many changes and transformations in their bodies as well as their psychology. Pregnant women often face the phenomenon of losing control of their emotions as well as difficulty concentrating on daily work. On the other hand, mothers need to be cared for and protected at a higher level to ensure the comprehensive development of the fetus. Science has proven that the mother's exposure to negative environmental influences can cause instability in the child's development... The conclusion of scientists at the University Medical Center of Rotterdam (Netherlands), pregnant women should not work more than 25 hours a week because if they work more, the child will be born underweight. And being underweight leads to problems with the heart, lungs,... [21].

After giving birth, the mother's body has undergone many major changes, and to ensure the child's development, the mother also needs special care. Nutrition experts recommend that babies should be breastfed exclusively for the first 6 months and continue to breastfeed until 24 months of age to ensure nutrients for the child's comprehensive development. Giving birth and taking care of the child is a very big step, the mother is very susceptible to stress, leading to depression and then extremely serious consequences, affecting the health, sometimes even the life of the mother and the child. The mother can face many mental disorders, not just postpartum depression. Research also shows that in the world, about 60% of women suffer from postpartum depression. In Vietnam, this rate may be higher due to conditions.

economic conditions as well as limited awareness [18]. The stress of childcare sometimes affects the quality of work as well as the recruitment process because employers realize that the ability to sacrifice and commit to work of female workers is not as good as that of men.

Third, LDN plays an important role in production and social life.

In feudal society, due to psychological characteristics, women were not valued for their own worth, were always considered inferior to men and had to depend on men, they could only play the role of housewives in the family, the ideology of "respecting men and despising women" deprived them of the opportunity to participate in social work. During this period, there was no appearance of LDN, and inevitably there was no issue of ensuring LDN's right to motherhood. Over time, the increasingly developed society also created opportunities for women to prove their role, women affirmed their role as the second "pillar" in the family, together with men sharing economic responsibilities, taking care of the family's material life. Nowadays, men have gradually abandoned the idea that " Housework is a woman's job " to join hands in family work, but for a sustainable home, the main role is still that of women because no matter what era, women are the ones who arrange and organize family life. Moreover, in terms of natural duties, there are some tasks that even if men are willing, they cannot share with women, such as the role of motherhood in giving birth, etc. Therefore, to ensure the motherhood of female workers, so that they can complete all tasks well, female workers must enjoy more privileges than male workers to compensate for the burdens they carry.

However, to balance the interests of all parties and ensure the sustainable development of the country, the law must have provisions to ensure the motherhood rights of female employees. However, the recognition of female employees' rights must also be placed in relation to the interests of employers. If too much attention is paid to

Focusing on the right to motherhood while ignoring the legitimate interests of employers will unintentionally create barriers that affect the employment opportunities of female workers. This leads to the consequence that ensuring the right to motherhood of female workers is only a policy and lacks practicality. On the contrary, overemphasizing the interests of employers will be detrimental to female workers. Therefore, legal regulations need to be calculated and need to balance the interests of both parties.

1.2.3 Factors affecting the guarantee of motherhood rights of workers

female movement

1.2.3.1 Social gender stereotypes.

Vietnam went through a very long feudal period, so the systems

The consequences, especially the consequences from culture, have been deeply ingrained in the thinking, psychology, actions, and social concepts of the majority of Vietnamese people, and these prejudices have become obstacles for women in their work. Because at this time, women were not valued for their own worth, the regulations, the ideas in Confucianism,... have limited their inherent rights.

Although recent socio-economic changes have had an impact on both men and women in today's society, the thoughts, views and attitudes of people in society on gender issues, the role and position of women seem to be vague and unclear. Our Party and people always uphold the slogan of gender equality, but that is only in terms of law, on documents and papers to control part of people's thinking, but in reality, it has not been very effective. Women are not only not evaluated and treated according to their abilities, but are also the subject of negative and heavy prejudices because gender equality is still a long-term goal for Vietnamese society. Gender inequality is manifested in many areas, from politics, culture, economics to education, the most worrying, most common and persistent is in the field of labor [16].

1.2.3.2 Awareness of subjects in labor relations is still limited.

Currently, women's unions contribute a great deal to the country's development, reflected in the high proportion of women in the workforce and the increasing number of women participating in most fields, holding important positions in the state apparatus, for example, in the National Assembly (term XII) there are up to 33.1% of female delegates, this is the highest number in Asia and is one of the countries with the highest proportion of female National Assembly delegates in the world [27]. The functions and roles of women's unions in the family as well as in society can be recognized by any individual or organization. To be able to perform these two tasks well in parallel, it requires the joint efforts and contributions of the entire community. However, in real life, for many different reasons, each person's awareness of ensuring the motherhood rights of female workers still has certain limitations and those limitations come from different subjects, specifically: Employers also recognize that the right to motherhood is a special privilege of female workers. However, when put on the balance of interests, employers "forget" these special regulations to "take full advantage" of what they have in the labor process of women. Meanwhile, for female workers, with the pressure of finding a job, having income or promotion opportunities, they accept to give up or delay the right to motherhood. For trade unions - organizations representing employees, the issue of awareness and capacity is very important to ensuring the motherhood rights of female workers. Through propaganda activities, trade unions are able to increase awareness of employees and employers about the motherhood rights of female workers. Through activities of monitoring compliance with the law in labor relations, trade unions promptly detect violations, take timely measures to prevent them or recommend competent authorities to handle violations.

1.2.3.3 Socio-economic factors.

Socio-economic factors have a major impact on ensuring the motherhood rights of women, which is reflected in the level of social security when women are pregnant, give birth and raise young children. In Vietnam, the development process of each stage

In each period, the level of social security is also different. The 1994 Labor Code stipulates in Clause 1, Article 114, " Female workers are entitled to leave before and after giving birth, a total of four to six months ". However, when the country has gradually stabilized and developed, people have the conditions to enjoy better and more secure health care conditions, the maternity leave has increased, so starting from May 1, 2013, female workers are officially entitled to 6 months of maternity leave instead of the previous regulation of 4 months or 6 months. The strong impact of socio-economic factors on the implementation of female workers' rights to motherhood is clearly shown in the general context of the whole world. Comparing the time of parental leave regulations for 156 countries in the world, it shows that 118/156 countries, accounting for 75.6%, mainly developing countries such as Laos, Thailand, South Africa, Congo, etc., stipulate a leave period of 10-20 weeks, 19/156 countries, accounting for 12.2%, mainly developed countries, stipulate a leave period of over 20 weeks such as Sweden: 69 weeks, Russia: 98 weeks, Norway: 56 weeks, Albania: 52 weeks, these are all in the European region and have a fairly good social welfare system. In underdeveloped countries, due to difficult socio-economic conditions, social welfare funds are not guaranteed, so maternity leave for female workers also faces more difficulties. [17].

1.2.3.4 State policy .

Legal regulations, Decrees, and guiding circulars are regularly amended, supplemented, and even changed from time to time because of changes in State policies. There are many factors that affect State policies such as population, development orientation, economy, and politics. Japan can be taken as a typical example of the population factor. Here, women, for many reasons, do not want to fulfill their natural duties, causing the population to age rapidly, making the country face a serious shortage of labor resources. In order to encourage women to have children, the Japanese Government

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