How Maternity Leave Policies Discriminate Against Adoptive Mothers And Children

New Delhi: It took nearly a year for Virginia* and her husband to bring home the four siblings they had asked to adopt. The children were aged between 4 and 10 years and this was May 2021 when the pandemic was raging, so the social sector professional knew she would run into many parenting challenges. What she did not know was that her employer could, and would, deny her maternity leave.

Virginia is entitled to maternity leave as per her contract but that benefit applies only to biological mothers, she was told. As an adoptive mother with children over three months of age she could not get a single day off. The months that followed were physically and emotionally exhausting for Virginia, caring for the children and handling an 8-to-4, six days a week job.

Nipuna Ghosh Shukla, a senior HR professional, dealt with a similar crisis when she welcomed home her one-and-a-half-year-old daughter in February 2021 after a three year wait. In the early months after the adoption, she used up all her accumulated paid leave and some unpaid ones. When she resumed work she found it impossible to deal with the demands of parenting and office work. Two months later she quit because she felt that her daughter needed more time and attention.

Adoptive mothers are granted only 12 weeks of paid maternity leave and that too only if the child is under three months of age, as per a 2017 amendment to the Maternity Benefit Act (1961). But, as we explain later, a complex set of adoption rules rarely allow a child to be brought home before three months of age. So most adoptive mothers have to make do without any maternity leave. The same amendment, however, had increased maternity leave for biological mothers to 26 weeks against the previously mandated 12 weeks. 

Rules for government employees vary: adoptive mothers are entitled to three months of maternity leave if the child is less than a year old, as per the Central Civil Services (Leave) Rules, 1972, and All India Services (Leave) Rules, 1955. Additionally under the AIS leave rules, adoptive mothers can extend their leave – to one year if the child is less than a month old at the time of adoption, six months if between 6 and 7 months of age, and three months if between 9 and 10 months of age. 

There are no prescribed provisions of paternity leave for biological or adoptive fathers employed in the private sector. But CCS and AIS leave rules do grant male employees 15 days off during a spouse’s pregnancy provided that they have no more than two surviving children. In 2009, the Ministry of Personnel, Personal Grievances and Pensions directed all states and union territories to extend the provision of 15 days paternity leave, within six months from the date of adoption, to adoptive fathers of children less than one year of age. 

A majority of Indians believe that childcare is primarily a woman’s responsibility. Experts have also argued that an increase in maternity leave without adequate provisions for paternity leave reinforces the gendered division of care work. 

A close look at India’s maternity benefit law reveals that not only is it discriminatory on multiple counts, but it also dissuades people from adoption, especially of older children and those with special needs who require extra care.

‘Emotional labour if not physical’

“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. 

Policy not child-centric

The Maternity Benefits Act is not child-centric and does not cater to the needs of adopted children, according to Padma Priya, an adoptive mom who is also an independent journalist and co-founder of Suno India. “All children have the same psychological, social and emotional needs. However, this law creates an artificial segregation between children who are adopted and biological children living with families they were born into,” she said. 

The adoption rate in India is abysmally low. As of December 2021, 1,936 children were legally available for adoption, as per the quarterly report of Families of Joy, an adoption resource and counselling centre, based on data on Child Adoption Resource Information and Guidance System (CARINGS), the adoption dashboard of CARA, the nodal body for adoption of Indian children. 

Data show a wide gap between the number of prospective adoptive parents and children legally available for adoption. 

Around 30 million Indian children were orphans, as per the 2016 State of World’s Children report by United Nations Children’s Fund (UNICEF) and constitute 39% of India’s population, as per the 2011 Census.  Orphaned children are classified as “children in need of care and protection” (CNCP) as described under the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act). However, there are only 3,77,649 children in child care institutions/homes, as per the Jena Committee Report released in 2018. Of all children in various kinds of care homes, 56,198 were either orphaned, abandoned or surrendered. 

The COVID-19 pandemic orphaned 1,47,492 children between April 1, 2020 and January 11, 2022, according to data submitted by the National Commission for Protection of Child Rights (NCPCR) to the Supreme Court, Of these, 10,094 orphan children need immediate care and protection. However, a 2021 Lancet report estimated that over 1.9 million children were orphaned by the pandemic.

The law also discourages the adoption of older children and children with special needs, said adoptive mother and WAIC founder Gupta. “Since adopting older children will not qualify you for maternity benefits, people will be discouraged from adopting older children. It is worth pondering that the needs of a child under three months of age will not be very different from that of a child who is four months old. The age limit is, thus, arbitrary,” she said.

Adopted children experience loss, grief

On average, 80% of India’s in-country adoptions between the years 2017 and 2022 were of children aged zero to two years, as per government data. Of the 1,454 children with special needs who were adopted between 2015 and 2019, less than 15% were adopted domestically, per official data.

Gupta further added that the lack of a parental leave will also discourage parents from adopting children with special needs. “My older daughter had special needs. My employer had not granted me maternity leave. However, my manager approved a three-month unpaid leave. For children with special needs like my daughter, it takes more work, multiple visits to the therapist and doctors to figure out what the child needs in the initial weeks. So if parental leave is not granted, people would not want to adopt such children,” she said. 

Children who enter the adoption pool in India have either been surrendered, abandoned or orphaned. Added to the inherent trauma that comes with such experiences, such children often live in foster-care and shelter homes. They are more likely to have faced and be impacted by complex trauma, as evidenced by this 2011 study

“The parents and these children will need more than just three months to be able to settle in and learn to be comfortable around each other,” said Nanduri. 

Many children experience a sense of grief and loss at the time of adoption, feelings related to separation from birth parents or from foster homes and caregivers to whom the children may have become attached. “As opposed to a new born baby, adopted children, especially older ones, have built their own identity and understanding of the world. To then be uprooted and placed in a new environment with strangers can make the child even more anxious and vulnerable,” said Gupta.

As a counsellor to adoptive parents, Gupta recalled the experience of an adoptive mother whose 11 year-old daughter would not speak a word. “Instead she would just want to hold her mother’s hand and sit next to her. However, the mother was not given any maternity leave by her employer. So she would make her daughter sit next to her and hold her hands while attending Zoom meetings,” she said. 

Contradictory policies

The age condition is a significant flaw in the Maternity Benefits Act because it is almost impossible to adopt a child under three months of age, said experts. CARA’s regulations and the Juvenile Justice Act, require that a child be declared legally free for adoption and ensuring this is a time consuming process.

Between 2016 and 2020, only 4% of the total children adopted (540 children out of the total 13,211) were less than 3 months old at the time of adoption, as per data shared in response to an RTI filed by Nanduri with CARA.

“The chances of a baby being adopted and entering a family before they are three months old are minimal because the law-mandated processes to make a child adoptable can take up to three months,” said Agarwal, adding that the lawmakers do not appear to have consulted the authorities facilitating and supervising adoption.

The policies regarding maternity benefits and adoption seem to have been made in isolation, Shukla told Behanbox in a telephonic interview. “Even if a child were to be surrendered or abandoned the day they were born, they will be at least four months old by the time a family legally becomes the guardians and adopts the child. Even then, the child will spend a period of pre-adoptive foster care at the prospective adoptive parents’ home even after being matched with them until the court issues an order of adoption.”  

As per CARA regulations, an abandoned or orphaned child must be declared legally free for adoption within two or four months of being produced in front of the Child Welfare Committee (CWC) in the case of a child upto two and above two years of age respectively. In the case of surrendered children, their parents are given 60 days to reconsider their decision. The process to declare the child legally free for adoption can only commence after two months have lapsed. 

Similarly, under the Adoption Regulations, 2017, the minimum period after which “an abandoned or orphaned child is legally free for adoption” is between two or four months from the date of production of the child before the CWC”. An attempt to trace the parents shall also be made by the police in case of those who have been “abandoned”. Thereafter, a report has to be submitted by the police within two to four months. If the police are unable to trace the parents during the specified period, the children enter the adoption pool. The procedure regarding surrendered children is the same as that under CARA regulations.

Adoption is still not celebrated

Deepika Ahuja (38), a lifestyle coach, is a biological as well as adoptive mother. When she brought her adopted daughter home in 2018, she sensed a palpable difference in how her extended family dealt with the situation and how they dealt with the birth of her son in 2010. She attributed this to the stigma around adoption. “Even today, there is not enough awareness about adoption. There are multiple stereotypes around adopted children,” she said. 

Adopted children are discriminated against for various reasons – their colour, origins, assumptions about substance abuse and the cliche that they will be “less” than biological children – all these are explored in this episode of Dear Pari, a narrative podcast dealing with the stigma around adoption. 

Ahuja was often asked by her family members about her reasons for adoption. “Why would you adopt when you can bear your own child,” was a common question, she said. 

People think that adoption is the last resort for couples who cannot conceive children and there is immense stigma around infertility and ‘barrenness’ in India, said Virginia. “Nobody wants to see adoption as a conscious choice or preference and that is what sets the tone for people’s attitude towards adoption. This is why adopted children are not celebrated within our society.”

Shukla dealt with similar attitudes. “Most family members and neighbors were not open to accepting my daughter. They would look at us as if we were aliens,” she said. 

There is also a widespread belief that adoptive mothers need no help with parenting because  they did not go through a pregnancy or labour. “There were times when I would cry in the bathroom because that’s how tired I was. None of the family members pitched in, which would probably not have been the case if I had given birth to a child. So there was neither any paid leave nor support system,” said Gupta. 

Mothers also complained of workplace apathy with regards to their choice of adoption. They attributed this to the lack of awareness about adoption. “At my workplace, people did not know how to react to the news of adoption. Some of them thought that we were weird, while others glorified us,” said Virginia. 

Agarwal says that the issue is more acute for single mothers, who cannot afford to hire help without the provision of maternity benefits. “It is a rarity that a woman who is single by choice will have familial support. It is absolutely unfair that single mothers have to take care of a child 24×7 without any help and on unpaid leave.”

* Names changed to protect identity

Eisha Hussain is a multimedia reporter at Behanbox. Her work has covered issues around gender and sexuality, displaced communities from conflict zones, and protest cultures.

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