What did the Supreme Court say about paid maternity leave?

The story so far: Last week, the Supreme Court ruled that adoptive mothers could avail themselves of 12 weeks of paid maternity leave regardless of the age of their children at the time of adoption. Striking down Section 60(4) of the Social Security Code, 2020 (previously Section 5(4) of the Maternity Benefit Act, 1961), which limited this benefit only to mothers who adopted children under the age of three months, the Court said that an adoptive mother had the same rights and obligations towards the child as a biological mother.

What is the law on maternity leave in India?

Statutory maternity benefits for working women in India began to be granted in colonial times. The Bombay Maternity Benefit Act, 1929, covered women factory workers. It was followed by similar laws in other parts of the country in the run-up to Independence. In 1961, Parliament passed the Maternity Benefit Act to provide paid maternity leave of 12 weeks to working women across the country.

In 2017, the Maternity Benefit (Amendment) Act not only extended the period of paid maternity leave for biological mothers to 26 weeks, but also inserted a provision extending maternity leave for the first time to adoptive mothers or surrogate mothers. Section 5(4) of the Act stated that surrogate or adoptive mothers legally adopting a child below three months would be entitled to maternity leave for a period of 12 weeks from the date the child is handed over to the mother.

Why was this law considered inadequate?

This provision was challenged in 2021 by Hamsaanandini Nanduri, a lawyer who adopted siblings in 2017. Ms. Nanduri told The Hindu that her Bengaluru-based law firm gave her only six weeks of paid maternity leave. “I could not leave my young children at home to turn up in office after just six weeks, so I took some additional months of unpaid leave. But it made me angry that there was no policy about it,” she said.

Terming the 12 weeks of maternity leave granted in 2017 to adoptive or surrogate mothers as “mere lip service”, the petitioner contended that when compared to the 26 weeks of maternity leave granted to biological mothers, the provision violated the fundamental rights guaranteed under the Constitution.

The three-month limit was unjust to both children and parents, depriving older adoptees from receiving the maternal care they need for their development and integration into their adoptive families, her lawyer argued.

The petitioner also pointed out in Court that adoption procedures take much longer than three months in India.

Also, as Ms. Nanduri told The Hindu: “I found on filing an RTI (Right to Information) application with CARA (Central Adoption Resource Authority) that less than 5% of children adopted at that time were under the age of three months.”

What did the Court say about motherhood?

The Court made it clear that motherhood cannot be seen through the “narrow lens of biology” alone. It referred to adoption as part of the “right to reproductive autonomy”. It noted that “the period of leave plays a crucial role in fostering [an] emotional bond between the mother and the child”. The Court added that stress hormone levels in children raised in orphanages are often higher than those in children brought up in a familial environment, which pointed to a greater need for paid maternal leave for older adoptees.

How will the judgment help adoptees and their parents?

Madhumitha Venkataraman started interviewing for jobs as a senior HR executive while waiting for an adoption referral, stipulating in every interview that she would need paid time off to support her child. Several multinational organisations balked at the idea of granting leave for more than a few weeks. But Ms. Venkataraman was finally recruited by a global media company that promised her one year of paid maternity leave. “My son came home at the age of three and a half months in 2023, so I was not eligible for maternity leave under the old law. But because this company was so accommodating, I did not have to choose between my career and my parenting,” she said. “There are emotional needs, and not just for the child. The time at home with my son gave me space to grow into motherhood,” she said. It is this time and space that other adoptive mothers say they will be entitled to as well, from now.

Noopur Goyal’s daughter was 15 months old when she came home in 2021. “I worked as a paediatric cardiologist at a top hospital in Delhi. I knew there was no provision for maternity leave, so I had to give up my job,” said Dr. Goyal, a single parent who works as a freelance consultant in Noida. “I had brought her into a new world, so I had to be present for her. An adopted child has been uprooted twice. I needed the time at home with her to build attachment and give her a sense of security.” Dr. Goyal said she was financially stable to be able to do this, but she is “glad now that there is a law mandating 12 weeks of paid maternity leave for all adoptive mothers.”

What did the Court say about paternity leave?

The Court also called on the Union government to examine the need for a formal law recognising paternity leave for all fathers, adoptive or biological. Noting that India’s legal framework does not adequately account for the role of fathers in childcare, it underlined the importance of shared parenting. As of now, only male government servants are entitled to 15 days’ paternity leave for the birth of a child or adoption. Leaves in the private sector are generally determined by company policies.