New Delhi: An adoptive mother should be entitled to a maternity leave of 12 weeks, notwithstanding the age of the adopted child, the Supreme Court Tuesday ruled, striking down Section 60(4) of the Social Security Code, 2020 which said that adoptive mothers will be eligible for maternity leave only if they adopt children who are less than 3 months old.
An adoptive mother of two, Hamsaanandini Nanduri, had challenged Section 60(4) of the 2020 Code (erstwhile Section 5(4) of the Maternity Benefit Act)—which entitles only those mothers who legally adopt a child below the age of three months or a commissioning mother to seek maternity benefit for a period of twelve weeks—stating that it creates “an unreasonable classification among adoptive mothers”.
Through a public interest litigation, the mother argued in court that the provision overlooks the physical and emotional well-being of the adoptive child aged three months or above as well as the adoptive parent. Thus, the provision, she told the court, is arbitrary, unreasonable and discriminatory not only towards the mother but also towards the child.
Plus, the petitioner highlighted that Section 60(4) restricts a woman’s right to carry on her trade, occupation, and business guaranteed under Article 19(1)(g) of the Constitution based on the child’s age. She added that such a restriction dissuades working women from adopting.
A bench of Justices J.B. Pardiwala and R. Mahadevan Tuesday held that there is no difference between a biological and adopted child for a family – “although biology has traditionally been the predominant lens through kinship, adoption is an equally valid pathway” concluding that “biological factors by themselves do not determine family and adopted child is not different from natural child”.
Authoring the judgement for the bench, Justice Pardiwala started the judgement with the words of South Korean poet Fleur Conkling Heyliger, “Not flesh of my flesh, nor bone of my bone, But still miraculously my own. Never forget for a single minute, You didn’t grow under my heart, but in it.”
The approach adopted by the legislature while enacting the provision, the court said, “does not reflect the real-world requirement of care and nurturing, which does not come to a sudden halt upon the attainment of a certain mathematical number, but gradually tapers with the proper integration of the child with the new environment, especially the parents”. Section 60(4) of the 2020 Code, it said, operates unequally upon adoptive mothers who are similarly situated, resulting in discrimination without reasonable justification.
As a necessary consequence, Section 60(4) violates the mandate of equality enshrined under Article 14 of the Constitution, it held. “The classification under the Act is palpably unreasonable and arbitrary.”
The Court said that the section, to the extent that it prescribes an age limit of three months, is discriminatory because first, it does not disclose a reasonable distinction between women who adopt a child below the age of three months and those who adopt a child aged three months or above. Secondly, the particular differentiation, which is sought to be made, has no nexus with the object sought to be achieved. Thirdly, the classification suffers from under-inclusiveness.
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Disabled children and single mothers
“The absence of an age limit assumes greater importance when we consider the position of children with disabilities,” the Court said. Noting that children with disabilities often wait considerably longer to be adopted as compared to other children, the process of identifying adoptive parents, ensuring that they are capable of providing the required care, and completing the necessary formalities would ordinarily take longer.
“Thus, in such circumstances, in absence of any parental leave, maternity benefit leave enables the adoptive mothers to devote adequate time towards nurturing, rehabilitation, and emotional bonding with the child.”
Moreover, the issue assumes a distinct dimension in the case of single adoptive mothers, the bench noted. Unlike in a traditional family setup where caregiving responsibilities may be shared between two parents, a single adoptive mother bears the entire responsibility of integrating the child into the family environment while simultaneously discharging her professional obligations. More so, in the absence of adequate maternity benefit, “a single adoptive mother may be compelled to choose between her employment and the immediate needs of the adopted child. Such a predicament undermines the very purpose of social welfare legislation designed to support working women”.
Adoptive and natural mothers
“It is important to highlight that motherhood is not merely a biological function but a deeply personal and emotional experience” the top court said, noting that it is a right “rooted in the freedom to love, nurture, and raise a child with dignity and devotion.”
The concept of maternity benefit also operates as an instrument of “defamilisation”, whereby it “reduces the woman’s reliance on family for care and protects economic independence.”
Thus, the court highlighted that an adoptive mother like the petitioner would have the same rights and obligations towards the child as the natural mother. “We do not say for a moment that biological mothers and adoptive mothers form the same category. We acknowledge the distinction created by the legislature. However, the constitutional validity of the impugned provision must be tested by examining the purpose and components of maternity leave and the extent to which such purpose is served in each situation.”
The Court noted that the components of maternity leave broadly consist of three elements – “the time necessary for physical recovery” following childbirth; the time required to “nurture and develop the emotional bond between the mother and the child”. And third, the time necessary to attend to the physical and emotional needs of the child and to facilitate the process by which the child gradually integrates into the family, with the mother often acting as the primary medium through which the child is introduced to the familial environment.
However, it distinguished how in case of biological birth, these 3 aren’t largely distinguished from. In case of adoption or surrogacy, it said, “the first component is absent, the second and third component are present and significant”.
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On adoption & best interests of the child
“When family structures and modes of parenthood have evolved and diversified, parenthood is not confined to the biological act of giving birth. It includes a broader spectrum of choices through which individuals realize their aspiration to build a family.” The Court asserted that “an atypical or unconventional familial setup does not strip away the rights guaranteed by the Constitution.”
An overarching theme that the court saw in precedents across the globe is that “ the best interest of the child must remain the paramount consideration in all decisions affecting a child”.
The best interests of the child, the court said, “does not conclude with the completion of the formalities of adoption or the handing over of custody of the child to the adoptive parents…..The true fulfilment of the child’s welfare lies in enabling the child to meaningfully adjust, bond, and flourish within the family environment.”
Practical difficulty, in this context, the court said is by the time a child is declared legally free for adoption, the child is unlikely to remain within the narrow age threshold (three months) contemplated by the provision. The inevitable consequence is that although the statute ostensibly confers maternity benefit upon adoptive mothers, yet the benefit remains largely inaccessible in practice.
On paternity leave as social security benefit
Urging the Union government to come up with a provision recognising paternity leave as a social security benefit — the top court deeply emphasized on the need for a legislation.
Highlighting that the duration of such leave must be determined in a manner that is responsive to the needs of both the parent and the child, the court said, “parenthood is not a solitary function performed by one parent but rather a shared responsibility in which each parent contributes to the child’s holistic development”.
“There exists a kind of injustice, although not deliberate, yet based on assumptions so deeply rooted that they have ceased to appear as injustice at all, and have come to be accepted as the natural order of things in society……At the same time, by mothers who were denied the companionship and support of their partners in the early phase of caregiving”.
Showing two consequences of absence of paternity leave – the court said – “it reinforces gendered roles in parenting and even where a father is willing and desirous of contributing, he is left without a meaningful opportunity to do so.”
The current law does grant a male government servant 15 days of paternity leave for the birth of the child or for adoption — which the court said shows that the concept of it is “not alien, but less recognized”.
(Edited by Vidhi Bhutra)
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