SC says all adoptive mothers entitled to maternity leave, also underlines paternity leave provision

A bench of Justices J B Pardiwala and R Mahadevan read down the Section 60(4) of The Code on Social Security-2020 that limits the age of the child to three months for an adoptive mother to be entitled for maternity leave, holding it violative of Articles 14 and 21 of the Constitution.

The court said, “therefore, the sub-section (4) of Section 60 of the 2020 Code should now be meaningfully read as: “(4) A woman who legally adopts a child 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 2020 Code says that “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 12 weeks from the date the child is handed over to the adopting mother or the commissioning mother, as the case may be”.

Writing for the bench, Justice Pardiwala said “the distinction drawn by” the provision “does not have a rational nexus with the object of the 2020 Code. The object of maternity benefit is not associated with the process of childbirth but with the process of motherhood. The purpose of maternity protection does not vary with the manner in which the child is brought into the life of the beneficiary mother. Insofar as the roles, responsibilities, and caregiving obligations are concerned, women who adopt a child aged three months or above are similarly situated to women who adopt a child below the age of three months.”

The court said “the right of reproductive autonomy is not confined to the biological act of giving birth. Adoption is an equal exercise of the right to reproductive and decisional autonomy under Article 21 of the Constitution”.

The judgment said that “the protection of maternity leave is a basic human right” and “the concept of maternity benefit acknowledges the ability of a woman to exercise her reproductive choices without fear of losing her employment, more particularly, the economic security. Thus, it ensures that motherhood does not become a factor for exclusion at the workplace.” It said that “the process of adjustment and integration within the adoptive family, both for the parents as well as the child, remains substantially the same irrespective of the age of the child”.

On the concept of paternity leave, the court said “while the role of a mother is undeniably central to a child’s emotional, physical, and psychological development, it would be incomplete and unjust to overlook the equally significant role of a father” and the “absence of a father during the formative years of a child’s life, particularly due to employment constraints, deprives both the child and the parent of the opportunity to form these early bonds”.

The judgment said that the “absence of paternity leave produces two consequences. First, it reinforces gendered roles in parenting. Secondly, even where a father is willing and desirous of contributing, he is left without a meaningful opportunity to do so…”

Urging the government to come up with a provision for paternity leave, it added 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”.