Maternity benefits to adoptive mothers

Subject : schemes

Concept :

The Supreme Court agreed to hear a petition challenging the constitutional validity of Section 5(4) of the Maternity Benefit Act, 1961.

Key details:

It states that a woman who legally adopts a child below three months old will be entitled to 12 weeks of maternity leave.
The original 1961 legislation did not have specific provisions for mothers who adopt, and these were inserted with the 2017 amendment to the Maternity Benefit Act.
According to the amended Act – A woman who legally adopts a child below the age of three months or a commissioning mother shall be entitled to maternity benefit for a period of twelve weeks.
The term “commissioning mother” refers to a surrogate mother and has been defined as a biological mother who uses her egg to create an embryo implanted in any other woman.
A woman adopting a child older than three months gets no benefits.
The PIL challenges this provision on grounds of being “discriminatory” and “arbitrary” towards adoptive mothers.
The absence of any provision for maternity leave for a mother adopting an orphaned, abandoned, or surrendered child above three months invariably prevents them from being able to utilise the statutory maternity benefits for adopted mothers.

Maternity Benefit Act, 1961

The Maternity Benefit Act was originally passed to regulate the employment of women in “certain establishments” for the period before and after childbirth and to provide for maternity benefit and certain other benefits.
Originally it applied to every establishment being a factory, mine or plantation.
Later in 1973, it was extended to any such establishment belonging to Government and every establishment where persons are employed for the exhibition of equestrian, acrobatic and other performances.
It repealed the Mines Maternity Benefit Act, 1941 and Maternity Benefit Act, 1929.
The right to paid maternity leaves was also given under the 1961 Act, although the period of such leave could not exceed twelve weeks.
Additionally, no woman could be allowed to avail maternity benefits if she had not worked in the establishment for at least one hundred and sixty days in the twelve months immediately preceding the date of her expected delivery.
These benefits would be allowed without dismissing the female worker from service or reduction of wages.
Violating provisions of the Act could result in three months’ punishment, with or without a fine.

The 2017 amendment

The Maternity Benefit (Amendment) Act, 2017 was amended to allow 26 weeks of paid leave after childbirth, although only to biological mothers.
The amendment also inserted Section 5(4) which said that adoptive or surrogate mothers legally adopting a child below three months will be entitled to a maternity benefit period of 12 weeks from the date the child is handed over to the mother.
Women in the unorganized sector cannot avail the benefits of the Maternity Benefit (Amendment) Act 2017.