Supreme Court strikes down provision denying maternity leave for mother of adoptive child of above 3 months

Holding that adoption is a part of reproductive and decisional autonomy, the Supreme Court on Tuesday struck down the provision which stated that a woman would be eligible for maternity leave if she legally adopted a child below the age of three months.

A bench of Justices J B Pardiwala and K V Vishwanathan said Section 60(4) of the Code on Social Security, 2020 insofar it puts an age limit of three months on the age of the adoptive child, for the adoptive mothers to avail maternity benefit under the law is violative of Articles 14, and 21 of the Constitution respectively.

The court said, the motherhood is not merely a biological function but a deeply personal and emotional experience.

"It is a right rooted in the freedom to love, nurture, and raise a child with dignity and devotion. Parenthood is defined by care and responsibility rather than by physical act of giving birth alone, even more so for women who choose to embrace motherhood by adopting a child overcoming social, emotional, and institutional barriers to provide a child with security,'' the bench said.

The court said, the distinction drawn by sub-section (4) of Section 60 between an adoptive and a biological mother 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,'' Justice Pardiwala wrote for bench.

The court's judgment, running into 100-page, came on a writ petition filed by Hamsaanandini Nanduri, an adoptive mother of two children, who contended the distinction in the Code was artificial and violative of Article 14. She contended the provision was arbitrary, unreasonable and discriminatory not only towards the mother but also towards the child above the age of three months.

Agreeing to the submission, the bench held, 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 bench said.

The bench concurred that the provision failed to recognize the right of reproductive autonomy of those adoptive mothers who adopt a child aged three months or more. It denuded such adoptive mothers of the ability to meaningfully exercise and enjoy their right to decisional autonomy, dignity, and bodily integrity.

The court pointed out 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.

The classification overlooks the significant emotional, psychological, and practical adjustments required, of the adoptive parents and the adopted child, more particularly, in cases involving children with disabilities or single adoptive mothers, it said.

In matters affecting a child, the bench pointed out, the paramount consideration must be given to the best interests of the child.

"This consideration does not conclude with the completion of the formalities of adoption or the handing over of the custody, rather it continues throughout the period the child remains a child, more particularly, the period during which the child integrates into the adoptive family. The true fulfilment of the child’s welfare lies in enabling the child to meaningfully adjust, bond, and flourish within the family environment,'' the bench said.

Finding that the provision turns out to be incapable of practical implementation, the bench noted, with regard to the time required to declare a child legally free for adoption, and by the time such declaration is made, the child is unlikely to be of less than three months old. "Thus, the age limit renders the provision illusory and devoid of practical application,'' the bench said.

The bench said the sub-section (4) of Section 60 of the 2020 Code should now be meaningfully read as, ''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.”