In a progressive ruling, the Supreme Court stressed that an adopted baby is no different from a biological one, and thus every mother has a right to avail three months of maternity leave. The top court called this as a basic human right. The court ruled as unconstitutional Section 60(4) of the Social Security Code, which states, “A woman who legally adopts a child below the age of three months 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.”

Recognising the Emotional Reality of Adoptive Mothers

The court was hearing a writ petition on the maternity leave matter, the bench of Justice JB Pardiwala and Justice R Mahadevan said, “Although biology has traditionally been the predominant lens through kinship, adoption is an equally valid pathway. It is not biology that constitutes, it is the shared meaning. Biological factors by themselves do not determine family. An adopted child is not different from a natural child.” The court further noted that a mother even if adopts a baby who is older than three months, has to go through the same emotions as the new born, “overlooks significant emotions”.

India’s Maternity and Paternity Leave Gap

As per the ruling of the top court, like all new mothers, adoptive mothers will get 12 weeks of maternity leave, starting from the date of adoption, irrespective of child’s age. In India the standard maternity leave duration is 26 weeks; six months, post pregnancy is 12 weeks. Earlier this benefit wasn’t availed by an adoptive mother if child was above three months. After hearing the case, the court even asked the Centre to introduce paternity leave.

Under the 1961 Maternity Benefit Act, women expecting can avail 26 weeks of paid leave, this is applicable to private and government workplaces. However, for paternity leave, there isn’t any statutory law. Government employees receive 15 days of paid paternity leave, while private sector employees often receive less than 15 days.

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