The Maternity Benefit Act, 1961 provides a legal framework for maternity and childcare leave, the establishment of creches and childcare infrastructure, and the institution of anti-discrimination measures to protect pregnant women and mothers in employment. Initially, the MBA was restricted to biological mothers. When the Act was amended in 2017, it explicitly extended paid leave to adoptive and commissioning mothers — through surrogacy – a notable development at the time.
However, this extension hinged on a baffling caveat: while the law entitled any woman adopting a child under three months old or a commissioning woman to 12 weeks of paid leave, the adoptive mother received no such leave if the child was older than the prescribed three-month age. When the Code on Social Security, 2020 subsumed the Maternity Benefit Act, 1961, it retained Section 60(4), which is pari materia with its predecessor.
On 17 March, the Supreme Court delivered a significant judgment in Hamsaanandini Nanduri v. Union of India, striking down the arbitrary three-month age cap on maternity leave for adoptive mothers. The bench of Justices Pardiwala and Mahadevan declared Section 60(4) of the CoSS unconstitutional because it unjustifiably distinguished between a mother who adopted a child below three months of age and one who adopted an older child.
The CoSS grounds maternity leave on two primary cornerstones: (1) protecting the health of the mother and the child, and (2) accounting for childcare.
As the role of primary carer necessitates the mother’s withdrawal from the workforce, the legislative framework was designed to provide women with this safety net, ensuring they can play both productive and reproductive roles efficiently.
Rama Pandey v. Union of India (2015, Delhi High Court) broadened the understanding of maternity leave by recognising it not merely as a mother’s right but also as the subsequent parental obligations required to care for the child. This includes the vital time mothers need to bond with the child to become the principal caregiver, thus regarding the child’s best interest as paramount within this framework.
In keeping with this spirit, the Supreme Court verdict underscores that maternity benefit is tied not merely to motherhood but to childhood itself.
The bench underscored that childcare and the adjustments required within such adoptive families necessitated equal protection, regardless of the age of the adopted child. This judicial reasoning dovetails with feminist thought on the ethics of care.
Also read: One-year-old baby goes to Delhi High Court to ask tough questions on India’s maternity laws
Value of care
The feminist ethics of care is a moral framework that emphasises the value of caring as an activity, which all human beings require and undertake for each other. Legal scholars have argued that this value of care should also be recognised within the law. Legal obligations should be structured in a manner that accommodates caring relationships and the labour of caregiving. Maternity leave is a prime example of this.
From this normative vantage point, there would be no reason to treat differently a child who is the biological offspring of the mother versus an adoptive child. Both children would require the same level of care, and the law should make space for both kinds of caregiving labour equally. This is also backed by Article 45 of the Constitution, which places an obligation on the state to ensure early childhood care for all children until the age of 6. One way of fulfilling this obligation is to remove differences in the treatment of biological and adoptive mothers, as the goal is to ensure quality childcare in both cases.
The verdict observed that reproductive autonomy cannot be confined to the biological act of giving birth but also includes adoption as a valid avenue to parenthood. This aligns with the intent of the 2017 amendment to the Maternity Benefit Act. The amendment sought to move beyond the myopic bionormative view of family by expressly recognising adoption and surrogacy as valid paths to becoming a parent. Yet, the statutory framework ultimately privileged the arbitrary fiction of biological motherhood alone, which the Supreme Court has rightly struck down.
This verdict also aligns the Indian legislative framework with the best contemporary practices. The United Kingdom, France, and Sweden offer equal parental leave rights to all mothers regardless of the manner of attaining parenthood (biological, adoptive, or through surrogacy). Thus, the verdict situates the Indian state alongside these progressive approaches to ensure that the country’s laws align with the commitment to the best interest of the child.
By removing the age cutoff, the Supreme Court has heralded a new age for all working mothers. It has acknowledged that parenting is simply not about giving birth; it is about nurturing a life, and this cannot be shackled by bureaucratic cutoffs. Whether a child is born to a mother or entrusted to her, denying her caregiving leave transgresses the objectives of the Act itself. The court has rendered a progressive tone; we can only hope for society and employers to follow suit.
Mandar Prakhar is an Associate Fellow and Jwalika Balaji (@JwalikaBalaji) is a Research Fellow at the Vidhi Centre for Legal Policy. Views are personal.
(Edited by Prashant Dixit)