“Even though adoption does not involve physical labour when compared to birthing a child, the emotional labour required is just as much if not more,” said Smriti Gupta, an adoptive mother and the founder of Where Are India’s Children (WAIC), an organisation that aims to ensure that abandoned and orphaned children are accounted for and protected.
Since the 2017 amendment many adoptive mothers have taken to websites like Change.org, a worldwide petition website, to raise awareness about and challenge what they call a “discriminatory” law (see here, here and here). Experts and adoptive mothers have claimed that the law is discriminatory on multiple counts, failing to meet the needs of both, the adoptive parents and the children.
In August, 2021, Hamsaanandini Nanduri filed a writ petition in the Supreme Court seeking that the Section 5 (4) of the Maternity Benefits (Amendment) Act, 2017, be declared unconstitutional and invalid. The law, the petition argued, violates Article 14 (equality before law), Article 19 (1) (g) (freedom to practise any profession, or to carry on any occupation, trade or business) and Article 21 (right to personal liberty).
In October, 2021, the Supreme Court issued a notice to the to the Ministry of Law and Justice and Ministry of Women and Child Development to seek their responses on the petition.
Nanduri, an adoptive mother of two and a corporate lawyer by profession, got her four-and-a-half year old daughter and 2 -year-old son home in 2017. Her company went beyond the law and gave her six weeks off and Nanduri extended this further to 12 weeks using accumulated leave.
“If six weeks was all that I could manage, I would have quit my job,” she said. “I realised at that time that my maternity leave should not be about what my organisation felt about it and instead should be available to me as a matter of right. That is when I decided to file a public interest litigation (PIL).”
The first and most obvious discrimination is between biological and adoptive mothers, said Nanduri. “While biological mothers get to spend six-and-a-half months with the child, adoptive mothers get less than half that time if the child is under three months and none if they are older.”
Sugandha Agarwal, a single mother and a lawyer by profession, believes the law also discriminates on the grounds of gender. “There is no mention of paternity leave and adoptive fathers, especially single dads, are not legally entitled to paternity leave,” she pointed out.
For single mothers who opt for adoption, the situation can get precarious. “Not only will she not get the time to connect with her new child, she will also be financially burdened without a job,” said Agarwal who worked five jobs a day to sustain herself after her employer shut down the vertical where she was working. “While some adoptive mothers go on unpaid leave or decide to quit their jobs, single mothers do not have that option because they cannot afford it.”
The introduction of the amendment could also close avenues for negotiations between employees and employers who insist on sticking to the law, said Agarwal. “Before this amendment, employees could have requested their employers for a leave and most employers would have considered it. However, now they have the law to fall back on if they want to deny the employees a leave,” she explained.