Maternity benefits to adoptive mothers

Source: By Khadija Khan: The Indian Express

The Supreme Court 12 April 2023 agreed to hear a petition challenging the constitutional validity of Section 5(4) of the Maternity Benefit Act, 1961, which states that a woman who legally adopts a child below three months old will be entitled to 12 weeks of maternity leave.

A bench led by Chief Justice of India DY Chandrachud agreed to hear the Public Interest Litigation (PIL), filed by Karnataka-based Hamsaanandini Nanduri, on 18 April 2023. The petition challenges Section 5(4) of the Act on grounds of being “discriminatory” and “arbitrary’ towards adoptive mothers and orphaned children over three months.

What is this provision?

The original 1961 legislation did not have specific provisions for mothers who adopt, and these were inserted with the 2017 amendment to the Maternity Benefit Act.

According to Section 5(4) of the amended Act, “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.” The term “commissioning mother” refers to a surrogate mother and has been defined as “a biological mother who uses her egg to create an embryo implanted in any other woman.” A woman adopting a child older than three months gets no benefits.

The PIL challenges this provision on grounds of being “discriminatory” and “arbitrary” towards adoptive mothers.

“Section 5(4) apart from being discriminatory and arbitrary towards the adoptive mothers, also arbitrarily discriminates against orphaned, abandoned or surrendered children above the age of three months, which is completely incompatible to the object of the Maternity Benefit Act as well as the Juvenile Justice Act,” the plea contends.

Dubbing the purported benefit of 12 weeks’ maternity leave as “mere lip service”, the petition also states that when compared to the 26 weeks’ benefit for biological mothers, the provision fails to stand the basic scrutiny of Part III of the Constitution, which is linked to the concept of non-arbitrariness.

What has happened in the case so far?

This is not the first time this petition is being heard by the top court. On 21 October 2021, a bench of then Justice S Abdul Nazeer along with Justice Krishna Murari sought responses from the Ministry of Law and Justice and the Ministry of Women & Child Development on this plea. Their responses are yet to be filed.

The absence of any provision for maternity leave for a mother adopting an orphaned, abandoned, or surrendered child above three months invariably prevents them from being able to utilise the statutory maternity benefits for adopted mothers, accorded by way of the 2017 amendment, the plea states, while adding that it’s “almost impossible” for a mother to adopt a child less than three months old, owing to the adoption procedure being fraught with delays.

Finally, the plea also submits that Section 5(4) of the Maternity Benefit Act conflicts with Section 38 of the Juvenile Justice Act, 2015, which requires any orphaned, abandoned, or surrendered child to be declared “legally free for adoption” by the Child Welfare Committee. The Adoption Regulations require two months for a child to be declared “legally free for adoption”.

What is the Maternity Benefit Act, 1961?

The Maternity Benefit Act was originally passed by Parliament on 12 December 1961, to regulate the employment of women in “certain establishments” for the period before and after childbirth and “to provide for maternity benefit and certain other benefits.” Originally it applied to every establishment “being a factory, mine or plantation” and later in 1973, it was extended to “any such establishment belonging to Government” and “every establishment where persons are employed for the exhibition of equestrian, acrobatic and other performances.” It repealed the Mines Maternity Benefit Act, 1941 and Maternity Benefit Act, 1929.

Section 4 of the 1961 Act prohibited the employment of or works by women during a certain period and under sub-section (1) stated, “No employer shall knowingly employ a woman in any establishment during the six weeks immediately following the day of her delivery or her miscarriage.”

The right to paid maternity leaves was also given under Section 5 of the 1961 Act, although the period of such leave could not exceed twelve weeks, “that is to say, six weeks up to and including the day of her delivery and six weeks immediately following that day.”

Additionally, no woman could be allowed to avail maternity benefits if she had not worked in the establishment for at least “one hundred and sixty days in the twelve months immediately preceding the date of her expected delivery.” These benefits would be allowed without dismissing the female worker from service or reduction of wages. Violating provisions of the Act could result in three months’ punishment, with or without a fine.

On 9 March 2017, the Maternity Benefits (Amendment) Act 2017 was passed by Parliament, which brought about key changes to the original Act.

What did the amendment in 2017 do?

The Maternity Benefit (Amendment) Act, 2017 amended Section 5 of the erstwhile Act to allow 26 weeks of paid leave after childbirth, although only to biological mothers.

The amendment also inserted Section 5(4) which said that adoptive or surrogate mothers legally adopting a child below three months will be entitled to a maternity benefit period of 12 weeks from the date the child is handed over to the mother.

Further, it inserted provisions to allow women to work from home under Section 5(5) which said, “…Where the nature of work assigned to a woman is of such nature that she may work from home, the employer may allow her to do so after availing of the maternity benefit for such period and on such conditions as the employer and the woman may mutually agree.”

Under the amended Act, Section 11 was also inserted to say that, “Every establishment having fifty or more employees shall have the facility of creche within such distance as may be prescribed, either separately or along with common facilities.” It is also mandated that the employer allows four visits a day to the creche by the woman as well as rest intervals for her.

However, a much-received criticism of this Act is that it does not apply to the unorganised sector.

Does it not apply to every sector evenly?

Women in the unorganised sector cannot avail the benefits of the Maternity Benefit(Amendment) Act 2017. In 2020, a report by TeamLease – a human resource company, revealed that even three years after the amendment Act was passed, it was yet to “deliver a positive impact on job opportunities for women.”

Besides this, the report said that women’s participation dropped in more than five out of 10 sectors since the implementation of the Act. The report suggests that 7 out of the 10 sectors reviewed were expected to show positive momentum in women workforce participation in the medium term (1-4 years) owing to the Act. However, 5 of the 10 sectors are lagging, and instead indicating a drop in the share of women in their workforce, as per the report.

After maternity, women face several challenges. Most of the women (30 per cent) cited wage cuts followed by resistance or lack of support from family (25 per cent) and access to childcare (20 per cent), as per the report.