Stressing that an adopted child is no different than a biological child, the Supreme Court today ruled that a woman who adopts a child older than three months cannot be denied maternity leave. The court said maternity protection is a basic human right and non-biological ways of making a family are equally legal.
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."
Delivering its judgment in a writ petition, 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 ruled that the responsibility of a woman who adopts a child older than three months is similar to that of another mother, and the present classification "overlooks significant emotions".
Adoptive mothers are now entitled to 12 weeks of maternity leave from the date of adoption, regardless of the child's age. The standard duration for maternity leave is 26 weeks, equivalent to approximately six months. The post-pregnancy period is 12 weeks. Till now, adoptive mothers got this benefit only if the child was aged below 3 months.
The court also urged the Centre to introduce paternity leave as a social security measure.
The Maternity Benefit Act, 1961, entitles eligible women to 26 weeks of paid leave. This applies to all workplaces, whether in the public or the private sector. For paternity leave, however, there is no statutory law as far as the private sector is concerned. While government employees are entitled to 15 days of paid paternity leave, private sector employees can avail this benefit only if their employer has a policy regarding this.
