A case for an anti-discriminatory maternity relief law to adoptive mothers in India

  • Shivam Tripathi

The Maternity Benefit Act, 1961[i]is the principal legislation governing maternity benefits in India. It was amended in 2017 to promote a holistic approach to maternity benefit in the country. The 2017 amendment[ii] was progressive in that it recognized the rights of adoptive and commissioning mothers[iii] to receive maternity benefits for the first time. However, the act under section 5(4)[iv] states that they are entitled to maternity leave for a maximum period of twelve weeks, less than half the maximum period of twenty-six weeks allotted to natural mothers[v]. In doing so, the legislative policy discriminates between a naturalmother and an adoptive or commissioning mother. Such an exception is not based on any reasonable ground and can result in having extremely adverse effects on the growth and development of the adopted child. So far as the state is concerned, it justifies this discriminatory stance as a mere provision aimed at reducing any undue pressure on the employer.

Section 5(4), of the said Act, also states that adoptive mothers are entitled to maternity benefit only if they are adopting a child below the age of three months, however, there are tangible barriers to adoption laws in India. The procedure is governed by the Juvenile Justice Act of 2015[vi], which categorizes children into three classes: an orphan, an abandoned child, and a surrendered child. In the case of an abandoned child, the police have to trace the parents, and if they are unable to do so within two to four months, only then can the child enter the system of adoption. In the case of a surrendered child, the parents are given sixty days to reflect on their decision – should they decide not to take back the child within the said time, the child is available for adoption. As a result, most children are well above three months of age by the time they are finally available for adoption.

In 2009 the Ministry of Personnel, Public Grievances and Pensions and the Department of Personnel &Training recognized the right of maternity benefits for adoptive mothers through an office memorandum[vii]. The memorandum states that a woman is entitled to maternity leave for 180 days (approx.twenty-six weeks) if a child up to the age of one year is adopted. These same rights were extended to the surrogate and commissioning mothers working with the Indian Government in 2016. This has led to the creation of two different regimes of maternity benefit: one for government employees and the other for the employees governed by the Maternity Benefit Act, 1961.

The courts in India have expanded the scope of Article 21 to the Constitution of India in line with the International Covenant on Economic, Social, and Cultural Rights which emphasizes the right to motherhood and the right of every child for full development.[viii]The Delhi High Court also in Rama Pandey v. Union of India[ix]also came to the conclusion that a woman cannot be discriminated against in the provision of maternity benefits whether they gave birth or obtained the baby through adoption or surrogacy. Further, the court stated that to distinguish between a mother who has a child through surrogacy or adoption and a mother who gives birth to a child, would insult womanhood and their intention to bring up a child as their own – clearly, there are internal juxtapositions even within the nation’s own legal system.

None of the international instruments to which India is a member[x] including the International Labour Organisation, provide for a separate system of maternity benefit to adoptive or commissioning mother. Additionally, Article 5 to the Convention on Elimination of all Forms of Discrimination against Women[xi] (CEDAW), mandates the elimination of discrimination based on the women’s reproductive role and recognizes maternity as a social function. It also reaffirms the women’s right to reproductive choices. Therefore, the Indian stance to provide only twelve weeks of maternity leave to adoptive and commissioning mothers can be said to be in contradiction to its international obligations.

One must highlight the fact that infancy is a crucial time for brain development.[xii] It is important that babies and their parents are supported during this time to promote attachment. Without a stable initial bond, children may suffer low self-esteem and a lack of identity development, which later may affect their academic performance. Adopted babies, in particular, may also face prenatal issues, due to the length of gestation or genetic vulnerabilities, i.e. while pre mature[xiii] babies are prone to chronic health issues, overdue babies[xiv] on the other hand are likely to suffer from behavioral problems, in both the cases extra care and attention is required. Existence of these conditions may adversely affect the child’s ability to adjust and develop a temperament therefore, they need extra support and care from their adoptive parents. Furthermore, while a biological child starts developing a bond with their mothers during the gestation period, the same does not happen with adoptive mothers or mothers who have given birth via surrogacy. These mothers can only start developing such a connection by providing infants a consistent, nurturing, and stress-free environment, and returning to work early impairs the development of such a bond which in turn affects the overall development of the child. Studies[xv] have proven that adoptive children are more susceptible to develop behavior problems, and the main reason is the lack of attachment and weak bonding with the adoptive family. Therefore, establishing a strong natural bond is quintessential for adopted children and children born out of surrogacy. Further, Article 5(b), CEDAW provides that the states are under an obligation to take appropriate actions to ensure full development of every child and that a child’s interest is a primordial condition in all cases.

Thus, it can be inferred that discriminating against a woman on the basis of her reproductive choices, is against the right to life enshrined under Article 21 of the Constitution of India, and it also violates the principles of international human rights law. Despite this, there are some regions like Haryana[xvi] and Chandigarh[xvii] that have adopted laws providing equal benefits to adoptive and commissioning mothers. However, the principle legislation still discriminates between a natural mother and an adoptive or commissioning mother, and as such a distinction should be rectified immediately.

The author is a fourth-year law student at MNLU, Nagpur.

[i]Maternity Benefit Act (1961), https://labour.gov.in/sites/default/files/TheMaternityBenefitAct1961.pdf

[ii]Maternity Benefit Amendment Act (2017), https://labour.gov.in/sites/default/files/Maternity%20Benefit%20Amendment%20Act%2C2017%20.pdf

[iii]Section 3(ba), Maternity Benefit Act, 1961, defines “commissioning mother means a biological mother who uses her eggs to create an embryo implanted in any other woman”.

[iv]Maternity Benefit Act 5 (1961),https://indiacode.nic.in/showdata?actid=AC_CEN_6_6_00024_196153_1517807324059&sectionId=42074&sectionno=5&orderno=5

[v]A natural mother here is referred to as, “a woman who gave birth to her biological child”

[vi]The Juvenile Justice (Care and Protection of Children) Act (2015), http://cara.nic.in/PDF/JJ%20act%202015.pdf

[vii]Enhancement of Child Adoption Leave from 135 days to 180 days and extension of the facility of Paternity Leave to adoptive fathers, Office Memorandum, Ministry of Personnel, Public Grievances and Pensions Department of Personnel Training, http://cara.nic.in/pdf/circular/Adoption%20leave.pdf

[viii]DevshreeBandhe v. Chhattisgarh State Power Holding Company Ltd., 2017(5)C GLJ340 (India).

[ix]Rama Pandey v. Union of India, 2015 SCC Online Del 10484 (India).

[x]India & ILO, Ministry of Labour & Employment, (Apr. 16, 2020) https://labour.gov.in/lcandilasdivision/india-ilo.

[xi]Convention on Elimination of all forms of Discrimination against Women art. 5, Dec. 18, 1979, https://www.ohchr.org/en/professionalinterest/pages/cedaw.aspx.

[xii]Hanan El Marroun, Post-term birth and the risk of behavioural and emotional problems in early childhood, 41 International Journal of Epidemiology, 773, (2012).

[xiii]What health challenges do preterm babies face?, World Health Organisation, (May 10, 2020) https://www.who.int/news-room/q-a-detail/what-health-challenges-do-preterm-babies-face.

[xiv]Adoption and stages of development, Child Welfare Information Gateway, (Apr. 16, 2020) https://www.childwelfare.gov/pubPDFs/f_stages.pdf.

[xv]Nicholas Zill, The Adoptive Difference: new evidences in how adopted children perform in school, Institute of Family studies (Mar. 28, 2018), https://ifstudies.org/blog/the-adoptive-difference-new-evidence-on-how-adopted-children-perform-in-school

[xvi]Grant of Maternity Leave to Commissioning Mother and Surrogate Mother, Government of Haryana, Finance Department, http://www.finhry.gov.in/FileUploads/Upload_d264f89d-b318-44fe-b0e4-290dcdd27aa6_.PDF.

[xvii]Grant of Maternity Leave to Commissioning Mother and Surrogate Mother, Chandigarh Administration, Department of personnel, http://chandigarh.gov.in/pdf/dop20-2269.pdf.

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