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The Adoptive Mother: A Prejudiced Approach Under the Indian Labour Codes

The contemporary era might have witnessed a substantial rise in female participation in all fields. However, the nature vs nurture debate fits perfectly in this context as one may argue that several adoptive mothers who, along with their work choose to adopt are outcasted, socially and legally.

Through this paper the author makes an attempt to ground the anti-adoptive ideology in the Indian society in addition to the highly prejudiced and discriminatory provisions that disentitle adoptive mothers the same maternity benefits which are enjoyed by natural mothers under the Indian Labor Codes.

The author also condones the Socio-cultural and political ideology and suggests a policy revamp similar to what is practiced in the United Kingdom in order to ensure and promote child welfarism, and inclusion and equality of adoptive single/committed parents, heterosexual or homosexual in order to liberate them from the complexities offered by labor codes.

It would not be wrong to say that working adoptive mothers/couples face distinct forms of hardships while creating a balance between their commitment to their employers and their duties towards their new adopted child. In contrast to natural mothers, the misinformation and denial of entitlement of maternity benefits, violation of labor laws and partial and insufficient leaves under the deficient and unprogressive Maternity Benefits (Amendment) Act, 2017 [Hereinafter 'the Act'] adds to the hardships.
The Amended Act, in the authors opinion fails to differ from societies preconceived notions of adoption as it fails to and in fact only pretends to provide maternity benefits to adopted couples/mothers. The Act in fact endorses the social stigma that a woman's purpose is only to give birth and an adoptive mothers desire to nurture to her child's needs and necessities differs from that of a natural birth mother thereby looking down upon adoption. There is an urgent requirement of a paradigm shift from such discriminatory laws.

The author believes so because of the arbitrary and prejudiced Law stipulated under Section 5 of the Act. Sub Section (3) of Section 5 of the previous Maternity Benefit Act provided that "a maximum period entitled to maternity benefit for a woman having two or more than two surviving children would be 12 weeks out of which 6 shall precede the date of her expected delivery."[1] Tracing back � there were no laws in place for adoptive mothers in this aspect.

However, the Amendment Act, in a progressive attempt increased the maternity leave under Section 5(3) from 12 weeks to 26 weeks[2]and Section 5(4) was introduced under the Maternity Benefit (Amendment) Act for adoptive mothers which provided that "a woman legally adopting a child below the age of three months or commissioning mother shall is entitled to maternity benefit for 12 weeks from the day the child is handed over."[3]

One may argue that while birth/natural mothers are provided with 26 weeks of maternity leave, the so called 'rational law makers' have provided only 12 weeks to adoptive mothers. Ironically, what is more surprising is that Section 5(4) was introduced as a 'progressive and inclusive' attempt towards adoptive mothers. This certainly strikes a debate on whether the arbitrary and discriminatory labor codes can actually be considered progressive?

Elizabeth Bartholet, a well-known feminist theorist states that "cultural prejudice is associated with only birth mothers designated as natural mothers which automatically convinces our mind to believe that adoptive mothers are not natural mothers and that adoptive mothers and adopted children are both inferior."[4] Problematic provisions under labor codes, for instance Section 5(4) itself discriminates between socially legitimate and illegitimate motherhood based on reproduction.[5]

A mothers love, care, and attention for her child is one of the most beautiful and unique feeling that one can witness. One has always been taught that there must be no discrimination. Even Our Constitution under Article 14 propounds Right to equality. Based on the above, a fair reading of Section 5(3) and 5(4) of the Act raises several questions in the mind of the author.

For instance, why is it that in an attempt to be progressive, the lawmakers have discriminated between the maternity leaves offered to a biological mother (24 weeks) as compared to an adoptive mother (12 weeks). Why are such arbitrary labor legislations neglected even after J. Nazeer and J. Murari have acknowledged Section 5(4) as unconstitutional? Why does the 12 week period as against the 24 week period seem like a consolation prize, only pretending to be progressive?

What is more surprising for the author is that while a biological mother is offered a 26 week maternity leave, an adoptive mothers entitlement to maternity leave of 12 weeks comes with terms and conditions. For instance, the latter may enjoy maternity benefits only on the adoption of a child below the age of three months, or else she is unworthy of receiving maternal leaves.[6]

From the understanding of Section 5(4), would it be fair for us to construe that the contingency of benefits depends on the age criteria of an adopted child as against the adoption of motherhood? Does a child above the age of 3 months not require maternal care, love and affection. For it is extremely important to note that such discriminatory/arbitrary laws are creating an impediment in the minds of potential adoptive mothers, discouraging them to adopt and this could be detrimental to such a noble cause.

It has been argued by theorists like Ergo and John Bowlby that in the early days, a substantial amount of attachment[7]needs to be formed between the parent and the child in order to ensure emotional growth and eliminate the rise of potential issues like stress, anxiety, trauma which leads to isolation.[8]

Lesser maternity leaves just adds to this issue. The author through this paper is mindfully not questioning the entitlement of maternity benefits to adoptive mothers for that is not even a matter of contention, but a mothers right. Instead the author is advocating on whether the duration of maternity leaves for adoptive mothers does justice to the purpose of child welfarism?

The discrimination observed violates Article 14[9] and 15 of the Indian Constitution.[10] In order to curb such inequality and injustice, India needs to ratify and acknowledge the presence of International Covenants like the International Labor Organizations Maternity Protection Convention, 2000 and such others. Doing so would synchronize the laws of the ILO with the statutory provisions of India which indeed can be termed progressive, inclusive and Constitutional.

In addition, India needs to adopt the child welfare schemes, Maternity Benefit schemes and such other schemes which are successfully practiced in the United Kingdom. UK grants 52 weeks Maternity leave which includes paid leave of 39 days.[11] The labor legislations of the UK are non-discriminatory and are in conformity with the Convention on Elimination on all forms of Discrimination against women, 1979[12] which grants adoptive mothers the same amount of paid leaves and maternity leaves as a biological mothers.

There are several changes that need to be brought in the India labor Statutes to ensure fair, inclusive and progressive laws. The foremost is the 3R policy of revisiting, revising and remodifying laws at regular intervals in order to ensure equality and non-discrimination. Second is the urgent requirement to eliminate the terms and conditions under Section 5(4) of the Act which does not grant maternity leaves to women who adopt a child above the age of 3 months.

Such a law is arbitrary, unconstitutional and holds absolutely no value. Thirdly, the duration of 12 weeks maternity leave for adoptive mothers as against 26 weeks for biological mothers is unfair and discriminatory. As a result, the Parliament has to make uniform laws and not discriminate between mothers and children based on the relation of the child with the mother.

Moreover, the duration of maternity leaves has to be increased to a minimum of 18 weeks going up to 26 weeks in order to ensure child welfarism and Maternity benefit. The said must be paid leaves to reduce the stress and burden of the parents. With such progressive laws, scope for adoption increases. It will positively influence and increase scope for adoption.

  1. Section 5(3) of the Maternity Benefit Act, 2017
  2. Section 5(3) of the Maternity Benefit (Amendment) Act, 2017
  3. Section 5(4) of the Maternity Benefit (Amendment) Act, 2017.
  4. Dowd, Nancy E, and Elizabeth Bartholet . "A Feminist Analysis of Adoption ." Family Bonds : Adoption and the Politics of Parenting, pp. 913�936.,
  5. Pietsch, Nicole. "Possession : A Feminist Phenomenological & Post Structuralist Analysis Of Illegitimate Pregnancy, Pregnant Embodiment and Adoption ."
  6. Section 5(4) of the Maternity Benefit (Amendment) Act, 2017
  7. Fried , Charles. "The Lawyer As Friend : The Moral Foundations Of The Lawyer-Client Relations." The Yale Law Journal , vol. 85, 8 July 1976, pp. 1060�1089.
  8. Fried , Charles. "The Lawyer As Friend : The Moral Foundations Of The Lawyer-Client Relations." The Yale Law Journal , vol. 85, 8 July 1976, pp. 1060�1089.
  9. Article 14 of the Constitution of India.
  10. Article 15 of the Constitution of India.
  11. Ray, Rebecca. "A Detailed Look at the Parental Leave Policies in 21 OECD Countries, 2008, Centre for Economic and Policy Research.
  12. United Nations General Assembly, Convention on the Elimination of all Forms of Discrimination Against Women, 18 December 1979, United Nations, Treaty Series, vol. 1249, p. 13,

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