SC: Adoptive Mothers Entitled To Maternity Leave Regardless Of Child's Age

New Delhi: The Supreme Court on Tuesday held that adoptive mothers are entitled to maternity leave regardless of the children's age, and an adopted child is not different from a natural child. The apex court said that Section 60(4) of the Social Security Code, 2020, which allows maternity benefit to an adoptive mother only if the adopted child is less than 3 months of age, is unconstitutional.

The judgment was delivered by a bench comprising Justice Pardiwala and Justice R. Mahadevan.

The apex court’s judgment came on plea filed in 2021, by a petitioner, who is an adoptive mother of two children, seeking a declaration to the effect that Section 5(4) of the Maternity Benefit Act, 1961, as amended by the Maternity Benefit (Amendment) Act, 2017, is unconstitutional, being violative of Articles 14, 19(1)(g) and 21 of the Constitution, respectively.

The Act grants an adoptive mother 12 weeks of maternity leave only if the adopted child is under three months old.

The bench said an adoptive mother should be entitled to 12 weeks of maternity leave, irrespective of the adopted child's age. The bench said an adopted child is not different from a natural child.

The bench said a woman who legally adopts a child, or a commissioning mother, shall be entitled to maternity benefit for 12 weeks from the date the child is handed over to the adopting mother or the commissioning mother, as the case may be.

The bench said that although biology has traditionally been the predominant lens through which kinship is understood, adoption is an equally valid pathway.

The bench said it is not biology that constitutes; shared meaning and biological factors by themselves do not determine family.

The apex court also asked the Centre to bring a law recognising paternal leave as a social security benefit.

Adoption is an equal exercise of the right to reproductive

Justice Pardiwala said the right of reproductive autonomy is not confined to the biological act of giving birth. He said adoption is an equal exercise of the right to reproductive and decisional autonomy under Article 21 of the Constitution.

The bench said the initial months following the arrival of a child, whether by birth or adoption, require time, attention, and rearing responsibilities to ensure the well-being of the child and the establishment of a stable environment.

The bench, in its 100-page judgment, said "The object of maternity benefit is not associated with the process of childbirth but with the process of motherhood. The purpose of maternity protection does not vary with the manner in which the child is brought into the life of the beneficiary mother. Insofar as the roles, responsibilities, and caregiving obligations are concerned, women who adopt a child aged three months or above are similarly situated to women who adopt a child below the age of three months."

The bench said the process of adjustment and integration within the adoptive family, both for the parents as well as the child, remains substantially the same irrespective of the age of the child.

The bench said the impugned classification overlooks the significant emotional, psychological, and practical adjustments required, of the adoptive parents and the adopted child, more particularly, in cases involving children with disabilities or single adoptive mothers.

The bench said when sub-section (4) of Section 60 of the 2020 Code is examined through one another angle, the provision turns out to be incapable of practical implementation, as it cannot fully achieve the purpose for which it has been enacted.

The bench said with regard to the time required to declare a child legally free for adoption, by the time such declaration is made, the child is unlikely to be of less than three months old. Thus, the age limit renders the provision illusory and devoid of practical application, it stressed.

“We have reached the conclusion that Section 60(4) of the 2020 Code insofar it puts an age limit of three months on the age of the adoptive child, for the adoptive mothers to avail maternity benefit under the 2020 Code is violative of Articles 14, and 21 of the Constitution respectively," noted the bench.

The apex court said therefore, the sub-section (4) of Section 60 of the 2020 Code should now be meaningfully read as:- “(4) A woman who legally adopts a child or a commissioning mother shall be entitled to maternity benefit for a period of twelve weeks from the date the child is handed over to the adopting mother or the commissioning mother, as the case may be.”

Recognize paternity leave as a social security benefit

The bench said the essence of the matter is simple, the presence of both parents during the early development of a child is indispensable.

It said what a father offers to a child in those nascent days cannot be scheduled for a convenient time or compensated for later.

The bench said the absence of a father is rationalized by the hope of making up for lost time through devoted weekends. “For the child, who needed to hear the voice and feel the warmth of a father in those early moments, the absence is not merely a matter of memory. It affects the foundation upon which the child begins to build emotional security and attachment”, it said.

The bench said the historical absence of a father’s participation in everyday caregiving and shared responsibility. “In this context, the absence of paternity leave produces two consequences. First, it reinforces gendered roles in parenting. Secondly, even where a father is willing and desirous of contributing, he is left without a meaningful opportunity to do so. When fathers are afforded the opportunity to take leave following the arrival of the child, they are able to support mother and share family responsibilities”, it said.

"In light of the aforesaid discussion on the need of paternity leave, we urge the Union to come up with a provision recognizing paternity leave as a social security benefit. We emphasize that the duration of such leave must be determined in a manner that is responsive to the needs of both the parent and the child," said Justice Pardiwala.

The bench said a provision for paternity leave serves an important purpose by enabling fathers to participate meaningfully in the early stages of a child’s life and development.

The bench said it helps in dismantling gendered roles, encourages fathers to take an active role in child care, fosters a balanced understanding of parenting, and promotes gender equality within family and workplace.

The bench said it also advances the best interests and welfare of the child, which are most effectively served when both parents are enabled to play meaningful and complementary roles in the child’s growth and development.

The bench said the reasons highlighted in the foregoing paragraphs of this judgment for maternity leave remain similar for paternity leave.

Institutional invisibility of household and care work

The bench said it is not an unknown phenomenon that women often sacrifice earnings and career progression for childbirth and child care.

It said care work for children includes attending to their daily needs, bathing and feeding them, accompanying them for medical visits, etc., and undertaking the preparation that these responsibilities entail.

The bench said there is no doubt that every member of a household benefits from the care work within households, and ordinarily, it is undertaken by women. It said such work of indispensable nature for the functioning of the family is performed without any explicit remuneration

The bench said only when time is spent on domestic and care responsibilities, the receivers are able to sustain productive employment. Thus, the contribution of women’s unpaid labour at home, is not merely a private or domestic matter but forms an integral part of the broader economy, it added.

The bench said it would be unreasonable to treat women identically to men without acknowledging the social realities of the responsibilities to be undertaken at home. "As a result, it will perpetuate structural disadvantage. At the same time, it would be unjust, if the law recognizes differences without ensuring equality in opportunity. Thus, conferring maternity benefit is a manner of acknowledging the realities of caregiving while enabling women to remain integrated within the workforce," it said.

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