Explained | Why is the law on maternity leave facing a challenge from some adoptive mothers in the Supreme Court?

Do adoptive mothers get maternity leave? Why is the Supreme Court hearing a challenge to the Maternity Benefit Act? What are the lived experiences of adoptive mothers?

Updated - April 21, 2023 01:11 pm IST

Published - April 21, 2023 08:53 am IST

The Supreme Court of India is to hear a petition challenging the constitutional validity of Section 5(4) of the Maternity Benefit Act, 1961

The Supreme Court of India is to hear a petition challenging the constitutional validity of Section 5(4) of the Maternity Benefit Act, 1961 | Photo Credit: K. Ananthan

The story so far: The Supreme Court of India last week agreed to hear a petition challenging the constitutional validity of Section 5(4) of the Maternity Benefit Act, 1961, which entitles adoptive and surrogate mothers to only 12 weeks of maternity leave, and that too only if the child is under three months of age.

This crucial hearing has reignited the debate surrounding the laws concerning maternity leave for adoptive mothers.

A bench of Chief Justice D.Y. Chandrachud and Justices P.S. Narasimha and J.B. Pardiwala has agreed to hear the Public Interest Litigation (PIL) petition, filed by Karnataka-based lawyer Hamsaanandini Nanduri, on April 28.

However, this is not the first time the Supreme Court is hearing this matter. Back on October 21, 2021, a bench comprising of Justice S Abdul Nazeer along with Justice Krishna Murari had sought responses from the Ministry of Law and Justice and the Ministry of Women & Child Development on this plea after stating that the petitioner had a ‘just cause’. The Union government is, however, yet to file its response.

The petition challenges Section 5(4) of the Act on the grounds of being discriminatory towards adoptive mothers and orphaned children over three months. Labelling the purported benefit of 12 weeks of maternity leave as ‘mere lip service’, the petition contends that when compared to the 26 weeks of maternity leave granted to biological mothers, the provision violates the fundamental rights guaranteed under Part III of the Constitution.

Nanduri, adopted her four-and-a-half year old daughter and two-year-old son in 2017. Her company gave her six weeks off, which Nanduri felt was inadequate. She extended this further by using accumulated leave. 

Speaking to The Hindu, Nanduri said that the existing law deepens the divide between adoptive and biological mothers. “There should be no discrimination based on how somebody becomes a parent. Whether somebody chooses to become a parent by having a biological child or getting a child through adoption or through surrogacy it doesn’t matter.,” she said.

“The Maternity Benefit Act is as much about the mother as it is about the child as well. Even in cases of adoption just because our process of becoming a mother is not the same, it does not mean that it does not have any impact on you and that you just go on with life. I can’t have a child at home and just turn up in office on Monday like nothing happened. It is a huge life event for everybody in the family”, she added.

Also read | Explained | The tedious process of adoption

What is the provision under challenge?

The original 1961 legislation lacked specific provisions extending maternity benefits to adoptive mothers, and this change was only brought about through a 2017 amendment.

The Maternity Benefits (Amendment) Act, 2017 not only extended the period of maternity leave for biological mothers but also inserted a provision extending maternity leave for the first time to adoptive mothers.

The amendment revised Section 5 of the Act to allow 26 weeks of paid leave after childbirth to biological mothers who were previously entitled to only 12 weeks of maternity leave. Significantly, it also inserted Section 5(4) which stipulates that surrogate or adoptive mothers legally adopting a child below three months would be entitled to a maternity benefit period of 12 weeks from the date the child is handed over to the mother. Notably, a woman adopting a child older than three months is not entitled to any such maternity leave.

Also read | 1,000 adoptions pending, but new rule sows confusion

How easy is it to adopt a child younger than 3 months?

The existing system of adoption rarely allows a child to be brought home before three months of age owing to the complex set of procedures envisaged under the Juvenile Justice Care and Protection of Children Act, 2015 (JJ Act) and the regulations framed thereunder.

Highlighting this issue, the petition argues that it is almost impossible for a mother to adopt a child less than three months old, owing to the adoption procedure being fraught with delays. The petition further states that Section 5(4) of the Maternity Benefit Act is in conflict with Section 38 of the JJ Act which requires any orphaned, abandoned, or surrendered child to be declared “legally free for adoption” by the Child Welfare Committee which in itself can be a time-consuming process.

According to the Adoption Regulations of 2017, “an abandoned or orphaned child is legally free for adoption within a period of two or four months, from the date of production of the child before the Child Welfare Committee (CWC)”.  

In cases where a child has been ‘abandoned’, the local police first attempts to trace attempts the parents. They are legally mandated to submit a report within two to four months in such cases and only if they are unable to trace the parents by four months, the ‘abandoned’ children enter the system for adoption.

Similarly, even in cases of ‘surrendered’ children, that is, those children whose parents have legally given up parental rights, a legally mandated two-month time period is given for parents to reconsider their decision. The CWC is legally obligated to use a 60-day time period to counsel the immediate and extended biological family to take the child back.

A child can be declared “legally free” for adoption by the CWC only after these formalities are complied with. After this, the child’s profile is put up on centralised adoption websites regulated by the Central Adoption Regulatory Authority (CARA), a statutory body under the Union Ministry of Women and Child Development.

Sending referrals of children awaiting adoption to Prospective Adoptive Parents (PAPs) based on their criteria also takes time. A prospective parent is sent three referrals to decide which child they would like to choose. If the first referral is rejected, the second is sent only after 60 days.  

In fact, on August 25, 2022, a three-judge bench of the Supreme Court observed that the adoption process under CARA was ‘very tedious’ since adoption waiting periods can range from three to five years even while lakhs of orphans are awaiting adoption. The Court emphasised the need to streamline the procedure.

Calling the statutory maternity benefit an ‘eye-wash’, Nanduri said that adopting a child who is less than 3 months old was almost impossible. She said that CARA provides prospective parents with only four age categories of adopted children to choose from— up to two years, above two and up to four years, above four and up to eight years, above eight and up to 18 years— and that there is no specific age category for children who are less than three months old.

“I don’t even have the choice to say that I only want a child that is less than three months old”, she said.

As per data shared in response to an RTI application filed by Nanduri with CARA, between 2016 and 2020, only 4% of the total children adopted (540 children out of the total 13,211) were less than three months old at the time of adoption.

As of September 2022, a total of 1,802 children were legally free for adoption and of them, just two percent (40 children) were healthy children below two years of age.

Does existing law dissuade adoption of older children and those with special needs?

The law may also dissuade people from adopting older children and those with special needs who require extra care. There is no provision in the law for adoptive parents of older children to have any time off with their kids.

The plea contends that by making the extension of maternal benefits ‘conditional’ upon the age of the adoptive child, the State is inconsiderately promoting the adoption of only newborn children and not older/adolescent orphaned, abandoned, or surrendered children. 

“Section 5(4) apart from being discriminatory and arbitrary towards the adoptive mothers, also arbitrarily discriminates against orphaned, abandoned or surrendered children above the age of three months, which is completely incompatible to the object of the Maternity Benefit Act as well as the JJ Act”, the plea avers.

As per the latest data released by the Union government, only 342 children with special needs were adopted during the period 2021-2022 out of a total of 3405 adopted children.

What are the challenges adopted children face?

Children who enter the adoption system in India have either been surrendered, abandoned or orphaned. Due to their lived experiences, many children often experience a sense of grief and loss at the time of adoption due to complex trauma resulting from separation from birth parents or from foster homes and caregivers to whom the children may have become attached.

According to a 2019 study, post-adoptive family relationships play a vital role in shaping an adoptee’s emotional and social development and thus access to maternity leave is crucial for adoptive mothers to prioritise the welfare of their children.

“When the child comes home, the first two months are crucial and you have to spend that as a family and have as many shared experiences as possible for the child to develop some kind of bonding. All of these children already come with trauma. They may have faced violence and starvation. You need to spend a lot more time with them. You can’t be expected to do this along with a full time job”, said Nanduri.

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