The joyous moments of childhood often include parents cheering on their children on their simplest yet the most beautiful achievements. Sadly, not all children are able to share ‘firsts’ or experience the thrill of their gleaming parents on their achievements. These children who are left abandoned or have lost their parents often feel a disconnect with the world, the feeling of not belonging. According to a recent report of National Commission for Protection of Children’s Rights (NCPCR), at least 10094 children were orphaned during the pandemic. Adoption, thus, presents an opportunity for these children to live a happy and secure life.
Framework of Maternity law in India
In India, firstly, there is no scope of paternal or paternity leave and the leave is limited to the extent of mothers. The Indian legislation is drafted in such a way that it is believed only women have the sole duty of nurturing and taking care of their child. Thus, fathers are kept out of the purview of the legislation of granting paternity benefits. On the other hand, it is often seen that employers refuse maternity leave for adoptive mothers because the law does not mandate it. Adoptive mothers are treated to be a class apart from biological mothers and provide an absolute legislative cover to the latter and an exceptional layer to the former.
Under the current Maternity Benefit Act (1961), according to Section 5(4), a woman is allowed a maternity leave of 12 weeks only if the adopted child is below 3 months of age. If a woman adopts a child who is more than 3 months of age, she is not considered for maternity leave at all. On the other hand, biological mothers are allowed a maternity leave of 26 weeks. The most unsettling aspect is the age limit of the adopted child that is set in the Act.
After the 2017 amendment, The Maternity Benefits Act has considered adoptive mothers to be deserving of a maternity leave, but the amendment doesn’t solve the cause. Not only is it treating adoptive mothers unequally, but is also snatching away a secured life of the adopted child. Firstly, the age limit of 3 months of the adopted child is keeping adoptive mothers outside the purview of the Act because the adoption process itself is very time-consuming. Secondly, it is disincentivizing adoption of children who are not a newborn baby. Thirdly, it is remiss to think that only children in the 0-3 months of age require continuous care and support.
Time consuming adoption process
The Indian adoption process is not simple, to say the least. The first step to make a child eligible for adoption is to declare the child ‘legally free.’ According to Section 38(1) of the Juvenile Justice Act, 2015, a child is declared to be ‘legally free’ once it is found that the child has no traceable parents, having no one to take care of the child. The declaration should be made within 2 months from the date of the production of the child to the committee for deciding whether a child is legally free for adoption. Therefore, procedurally, it is nearly impossible for a child to be up for adoption before the age of 2 months. This barrier leaves the would-be adoptive mothers with a time period of just 1 month to be considered eligible for a maternity leave.
The second step is sending referrals of children awaiting adoption to the Prospective Adoptive Parents (PAPs) based on their criteria specified. A prospective parent is sent three referrals in total to decide which child they would like to choose out of those three submitted to them. . The referral process is time-consuming as only one referral is sent at a time. If the first referral is rejected, second referral is sent only after 60 days. Currently, the waiting period to receive a referral of a child below 2 years of age is 2-2.5 years. Therefore, owing to these procedural formalities and processing delays, adoptive mothers are practically excluded from maternity leave eligibility.
Violation of equal protection of law
According to Article 14 of the Indian Constitution, everyone is equal before the law; however, it does not mean that every person is subject to the same law but the latter condition i.e. positive discrimination can only be take place when there is a satisfaction of ‘reasonable classification’. The test of ‘reasonable classification’ was laid down by the Indian Supreme Court in the case of Anwar Ali Sarkar v. State of West Bengal. For this test, two conditions must be fulfilled: (1) classification must be based on intelligible differentia which distinguishes those that are grouped from others and (2) the differentia must have rational relation to the objective sought to be achieved by the Act.
Notably, in the case of adoptive mothers, there is no rational basis to discriminate against them only because biological mothers need to physically recover from childbirth and pregnancy. It is thoughtless to relegate emotional bonding with the adopted child since emotional healing is what they need the most at their peak vulnerability. Both natural mothers and adoptive mothers deserve the right to get maternity leave for equal durations. It should be realized that building a strong emotional bond between the adopted child and the new family is extremely critical for the personal development of the child. Therefore, the law should be given a meaning that not only considers the functional aspect of adoption but rather the emotional quotient that is attached to the whole process of adopting.
The Indian Constitution under Article 39(f) and 45 directs the best interest of children and promises equal opportunities and care to them. In order to remedy this situation, there is a clear need to expand maternity leave for adoption of children of any age group. Every child deserves an equal and fair opportunity to heal emotionally. Additionally, since the Maternity Benefits Act is a welfare legislation, it should be applied in a beneficial way and should rather be in the consonance with the Indian Constitution and other general as well as specific laws that deal with the welfare of the child. By discriminating against adoptive mothers, the law restricts the beneficiaries from getting the benefit of the statute. Not just that, but it is also reinforcing the nonsensical notion of treating adoption secondary to childbirth. Thus, a need to manifest equality in its truest sense is deeply felt.