By Muskan Bhuteria
Introduction
Adoption has always been a challenge in India which has been exacerbated during the Covid-19 pandemic.[1] While the focus has been on the medical aspect of things, the secondary impact of the pandemic has been massive, especially on children who have lost their families.[2] Lancet studies have stated that India is one of the countries having the highest numbers concerning children having lost their primary caregivers. It was stated that about 1.6 lakh minors were orphaned between March 2020 to April 2021.[3] Adding to the barriers for adoption, the leave given for adoption is inadequate and further discourages adoption. Prior to 2017, there was no leave given to adoptive parents under the Maternity Benefit Act, 1961 (referred to as the ‘Act’).[4] In March 2017, a key amendment was made to the Act inserting Section 5(4) which allowed a woman who adopted a child, or a commissioning mother, a leave of 12 weeks from the date of handing over the child to the mother. This benefit, however, was only available in cases where the adopted child was “below the age of three months”.[5]
Traditionally, the labour laws in India emphasized and protected the rights of a biological mother.[6] This amendment was applauded and considered pathbreaking as it safeguarded the rights of an adoptive mother as well.[7] However, the hidden caveat of the age of the adopted child, lack of gender-neutral leave, the disparity in leave granted to birth parents and adoptive parents, among others, have left this beneficial legislation as a mere hoax. India has always had a low adoption rate, more so in the past decade. In 2021, there were only 3142 in-country adoptions in India. (T1)[8] The Constitution of India and various international obligations emphasize the ‘right of child’ which must be enforced and safeguarded by the government.[9]
Need for Change- Inadequacy of Section 5(4) of the Act
In September 2021, a public interest litigation (PIL) was filed in the honourable Supreme Court of India which challenged the validity of Section 5(4) of the Act.[10] Ms. Hamsaanandini Nanduri, the petitioner in this case had adopted two children aged 5 years and 2 years. The children had issues adjusting due to being around complete strangers who spoke a different language, residing in a different city and a new home.[11] She got inadequate leave to cope with these changes and realized the issue was in the law which discriminated between biological and adoptive mothers.[12] Currently, the Supreme Court has accepted the PIL and a notice for a reply has been issued to the Centre.[13] In this section of the paper, I will cover the issues and challenges of the provision as noted in the PIL and otherwise. With the introduction of adoption leave, the 2017 amendment also increased maternity leave for a mother having a natural-born child from twelve weeks to twenty-six weeks.[14] This inequality is not only against the adoptive mother but also against an adopted child which reinforces the biases against adoption existing in the society. The disparity in leave duration is without any justification, arbitrary and discriminatory, and warrants a change. [15]
One of the key issues with this provision is the caveat to receiving the benefit of adoption leave i.e., that the child adopted must be below the age of three months. The process of adoption in India is filled with delays. Data suggests that there is an existence of a wide gap between prospective parents and adoptable children. While the number of prospective parents is over 29,000, the number of children available for adoption is only 2317.[16] Several children are not institutionalized or registered which leaves them more vulnerable (only 0.87% of abandoned children are under institutionalized care).[17] One of the major statutes governing adoption in India is the “Juvenile Justice (Care and Protection of Children) Act, 2015” (referred to as ‘the JJ Act’). Under the JJ Act, the “Central Adoption Resource Authority” (referred to as ‘CARA’) is in place for regulation and promotion of adoptions in India.[18] It is pertinent to note that the CARA Regulations does not allow for the adoption of a new-born child and requires a minimum period of two months for the child to be declared as “legally free for adoption”.[19] In addition to this, the period of referral cycle and other formalities would itself take about four months for completion. This, coupled with the inherent delays in the system make it almost impossible to adopt a child below the age of three months.[20] The caveat of the child being below the age of three months not only discourages adopting a child older than three months but also brings in discriminatory to the child which is violative of Article 14 of the Constitution of India and the public policy of promoting adoption of different age groups.[21] The adoption provision in the Act seems to provide for an “artificial sense of parity” between adoptive and biological parents, with a hidden caveat having no rational basis.[22]
Unlike maternity leave, which is required both pre and post childbirth, adoption leave is primarily required post adoption. Apart from taking care of the child in early ages, an adopted child often comes with several other challenges which is not the case for a biological child.[23] such as devoid of prior care and support, adjusting to new surroundings, accepting their adoptive parents, bonding with them, and often the adopted child would have come from a background of violence.[24] The child and adoptive parents need time and might also require therapy and other forms of help to make the child feel at home.[25] These concerns are not limited by age, in fact it is likely that elder or teenage children who are adopted might take more time to adjust to their new surroundings.[26] Another key issue with the adoptive leave provided in the Act is the absence of paternity leave which not only disregards the father’s rights and responsibilities[27] towards the child but also reinforces the gendered roles prescribed by society.[28] The assumption of the mother being the primary caregiver and responsible for the upbringing of the child is reinstated through this provision.[29]Furthermore, it disincentivizes hiring of women in the workforce or could potentially lead to women being forced to leave their jobs since the entire responsibility of the child falls on them.[30] Apart from this, the Act is silent on providing leave for a single male who adopts a child. Under the “eligibility criteria for prospective adoptive parents”, single males are eligible to adopt a male child.[31] There is no provision in the Act which provides for leave in such cases, that further disincentivises adoption.
There is a lack of uniformity in the labour laws with respect to parental leave benefits.[32] Under an Office Memorandum issued by the “Ministry of Personnel, Public Grievances and Pensions Department of Personnel and Training” in 2009, the “child adoption leave” was enhanced to 180 days and paternity leave of 15 days was provided to adoptive fathers. The age limit of the child for availing such leave was set as one year.[33] A similar provision exists in “The All India Services (Leave) Rules, 1995” under sections 18(a) and 18(c).[34] Recently in April 2021, the Karnataka Government also provided the same adoption leave stated above to their government employees while acknowledging the need for leave for adoptive parents and considering the situation of adoption by single parents.[35] While the leave provided in these laws are also not sufficient, it is unclear why such benefit is not uniform across all legislations. [36]
Comparative Analysis on Policies of Adoption Leave
A comparative analysis is essential to determine the changes that must be made in India’s legislative paradigm with regard to adoption leave. Several international documents including the International Labour Organisation (ILO) under recommendation No. 191 provides that in accordance with the “Maternity Protection Convention, 2000 (No. 183)”, maternity leave must be made available to birth as well as adoptive parents, where the state allows adoption. [37]ILO has also recognised men’s role as a co-parent and their right to parenthood.[38] There are several countries that provide for equal leave to adoptive and birth parents such as in the United Kingdom and Brazil.[39] Columbia too provides for a paid leave of 14 weeks to both adoptive and birth parents where the child being adopted is a minor. Moreover, it also provides the same leave and other benefits of maternity leave in cases of adoption by a single man.[40] In Australia, unpaid parental leave is available to all employees of Australia, for adoption where the child is below the age of 16 years, if they have completed continuous services of a minimum of 12 months with their employer.[41] Since 2011, most employees are eligible for obtaining paid parental leave which is entirely funded by the government, including for adoption, and the leave can be available in flexible periods.[42]
There are several companies that have progressive adoption leave policies. In 2019, Zomato announced a 26 week paid paternity leave for all their male employees which were available to birth parents, adoptive parents, same-sex couples and surrogate mothers.[43] Zomato founder and CEO Deepinder Goyal stated that “there won’t be even an iota of difference in parental leave policy for men and women at Zomato going forward” which stating that the disparity in parental leave between men and women creates a lack of diversity in the organisation and is of the core issues of fewer women in a leadership position in companies.[44] This was a welcome change considering that most companies are apprehensive and reluctant to provide for paternity leaves.[45] Under Amazon’s maternity leave policy too, which is a paid leave for 26 weeks, there is no distinction between leave granted to an adoptive or birth mother.[46]
It can be seen that the adoption leave policy under the Act is far behind the leave policies provided in several countries and leading companies. In a country like India which is struck with issues of gender stereotyping, lack of women in the workforce and the need to boost adoption, it is essential for the Government to bring about a change in the national adoption leave policy while drawing from the best practices around the world and respecting international obligations.
Recommendations and Conclusion
There are several issues in the adoption provision of the Act that urgently needs to be addressed as also stated in the PIL filed by Hamsaanandini Nanduri.
- The arbitrary discrimination brought in between birth and adoptive parents on one hand and an adopted child below the age of three and above on the other which is violative of the right to life and equality enshrined in Articles 21 and Article 14 of the Constitution.[47] The principle of “best interest of the child” requires the state to safeguard the rights of the child.[48]
- The law must be made gender neutral which allowing for ‘parental leave’ and not just maternity leave including leave for the father and considering adoption leave for single males.[49]
- The duration of the adoption leave provided must be set considering the specific needs of adoption which is quite different from a natural-born child.[50]
- The provisions of adoption leave provided in the Act is more narrow than the other provisions for governments employees, etc as stated above. There is a need to bring about a uniform policy with respect to the duration, benefits and financing of parental leave. [51]
- In order to relax the financial burden on companies for adoption leave, a portion of the paid leave can be provided by the government which would ensure job stability to adoptive parents as done in the case of Australia.
- The adoption leave provided is not necessarily required by the parents in one stretch. The law must also make a provision for taking intermittent leaves. The adoption process for every family is different and is filled with different challenges depending on the background of the adoptive parents and the child being adopted which must be taken into consideration.[52]
I believe that the government plays a key role in normalising and promoting adoption. One of the main reasons why families might not choose adoption is the lack of adequate leave given to adoptive parents. Bringing about a change in the legislative framework would empower and encourage adoption. The current provision just seems to be in place just for the sake of it and does not give due consideration to the difference between adoption leave and leave to birth parents. While being in line with our international obligations and adopting the best practices followed for adoption leave, the government must amend the provision while instituting a committee and bringing in suggestions of stakeholders to understand the purpose of adoption leave.
| Year | In-country Adoption | Inter-country Adoption |
| 2010 | 5693 | 628 |
| 2011-2012 (Jan’11 to March’12) | 5964 | 629 |
| 2012-2013 (April’12 to March’13) | 4694 | 308 |
| 2013-2014 (April’13 to March’14) | 3924 | 430 |
| 2014-2015 (April’14 to March’15) | 3988 | 374 |
| 2015-2016 (April’15 to March’16) | 3011 | 666 |
| 2016-2017 (April’16 to March’17) | 3210 | 578 |
| 2017-2018 (April’17 to March’18) | 3276 | 651 |
| 2018-2019 (April’18 to March’19) | 3374 | 653 |
| 2019-2020 (April’19 to March’20) | 3351 | 394 |
| 2020-2021 (April’20 to March’21) | 3142 | 417 |
The author, Muskan Bhuteria, is an undergraduate law student at Jindal Global Law School (JGLS), Sonipat.
[1] Sara Bardhan & Neymat Chadha, ‘The Challenges and Unaddressed Issues of Child Adoption Practices in India’ (The Wire, 16 September 2021) <https://thewire.in/society/challenges-issues-child-adoption-practices-india> accessed 2 November 2021.
[2] Susan D Hills, ‘Global minimum estimates of children affected by COVID-19-associated orphanhood and deaths of caregivers’ (2021) 368 THE LANCET <https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(21)01253-8/fulltext> accessed 1 November 2021.
[3] Ibid.
[4] Saumya Uma, ‘Gamechanger or a Trojan Horse? Some Reflections on the Maternity Benefit Act, 1961’ (2020) 55(20) EPW <https://www.epw.in/journal/2020/20/review-womens-studies/gamechanger-or-trojan-horse.html> accessed 28 October 2021.
[5]The Maternity Benefit (Amendment) Act, 2017.
[6] Akshita Prasad & Kunal Nema, ‘Child Adoption in India: A Comprehensive Study’ (Law Brigade, 25 September 2019) <https://thelawbrigade.com/family-law/adoption-law/child-adoption-in-india-a-comprehensive-study/#Current_scenario_in_Indian_adoption> accessed 28 October 2021.
[7] Neysa Amber, ‘Equality and Maternity Benefit for Women in the Labour Force’ [2020] ILI Law Review
[8] CARA, ‘Adoption Statistics’ (CARA, 2021) <http://cara.nic.in/resource/adoption_Stattistics.html> accessed 29 October 2021.
[9] Centre for Child Rights, ‘Constitution of India’ (HAQCRC) <http://cara.nic.in/resource/adoption_Stattistics.html> accessed 30 October 2021.
[10] Shruti Kakkar, ‘Denial of Maternity Benefits to Mothers Adopting Children Aged Less than 3 Months Challenged in Supreme Court’ (Live Law, 1 October 2021) <https://www.livelaw.in/top-stories/denial-of-maternity-benefits-to-mothers-adopting-children-aged-less-than-3-months-challenged-in-sc-182888> accessed 1 November 2021.
[11] Hamsaanandini Naduri, ‘Amend laws to give adoptive mother equal maternity benefits’ (Change.org) <https://www.change.org/p/smritiirani-byadavbjp-amend-the-maternity-benefit-act-1961-to-give-adoptive-mothers-equal-maternity-benefits-heartmomsneedlove> accessed 28 October 2021.
[12] Ibid.
[13] Writ Petition (Civil) No. 960/2021, Hamsaanandini Naduri v. Union of India, 2021.
[14] n 5.
[15] n 4.
[16] Ambika Pandit, ‘Why the wait to adopt a child could get longer’ (The Times of India, 12 March, 2020) <https://timesofindia.indiatimes.com/india/why-the-wait-to-adopt-a-child-could-get-longer/articleshow/74585379.cms> accessed 1 November 2021.
[17] n 1.
[18] The Juvenile Justice (Care and Protection of Children) Act, 2015.
[19] CARA, ‘Frequently Asked Questions (FAQ’s)’ <http://cara.nic.in/PDF/faqs.pdf> accessed 2 November 2021.
[20] Debayan Roy, ‘”This is a just cause:” Supreme Court issues notice to Centre on plea against restrictive conditions on maternity leave for adoptive mothers’ (Bar and Bench, 1 October 2021) <https://www.google.com/amp/s/www.barandbench.com/amp/story/news/litigation/maternity-benefit-act-plea-in-supreme-court-challenges-restrictive-conditions-on-maternity-leave-of-adoptive-mothers> accessed 28 October 2021.
[21] n 4.
[22] Ibid.
[23]Families of Joy, ‘Adoption Leave: Let’s Stop Patronizing’ (Families of Joy, 13 April 2021) <https://familiesofjoy.org/2021/04/13/adoption-leave-lets-stop-patronizing/?utm_source=rss&utm_medium=rss&utm_campaign=adoption-leave-lets-stop-patronizing> accessed 28 October 2021.
[24] Ibid.
[25] Ibid.
[26] Ibid.
[27] Smriti Gupta, ‘Call to provide equal rights to Adoptive Mothers under India’s Maternity Benefits’ (Change.org, 2018) <https://www.change.org/p/government-of-india-ministry-of-women-and-child-development-provide-equal-rights-to-adoptive-mothers-under-india-s-maternity-benefits> accessed 2 November 2021.
[28] Aparajita Dasgupta, ‘Gender-neutral Paternal Leave’ (2016) 51 EPW <https://www-epw-in.opj.remotlog.com/journal/2016/37/letters/gender-neutral-parental-leave.html?0=ip_login_no_cache%3De6e0daa97ab86b3c761b6bf704f66070> accessed 2 November 2021.
[29] Ayushi Agarwal, ‘A fatherhood more fulfilling’ (The Indian Express, 8 November 2020) <https://indianexpress.com/article/opinion/a-fatherhood-more-fulfilling-7013342/> accessed 1 November 2021.
[30] Ibid.
[31] CARA, ‘Eligibility criteria for prospective adoptive parents’ <http://cara.nic.in/Parents/eg_ri.html> accessed 2 November 2021.
[32] Dr. Shashi Bala, ‘ Impact on Employment of the Maternity Benefit (Amendment) Act, 2017: Identifying the Affirmative Initiative & Challenges in the Implementation of the Act’ (2019) <https://vvgnli.gov.in/sites/default/files/Workshop%20on%20Impact%20on%20Employment%20of%20the%20Maternity%20Benefit%20Act%202017.pdf> accessed 3 November 2021.
[33] Office Memorandum by Ministry of Personnel, Public Grievances and Pensions Department of Personnel & Training, 2009.
[34] The All India Services (Leave) Rules, 1995.
[35] The Karnataka Government Leave Rules <https://dpar.karnataka.gov.in/services/public/new-page/Leave%20related%20matters/en> accessed 4 November 2021.
[36] n 32.
[37] International Labour Organisation Recommendation No. 191.
[38] Ibid.
[39] International Labour Organisation, ‘Maternity and paternity at work- Law and practice across the world’ [2014]
[40] Columbia Labour Compliance Guide.
[41] Australian Government Paid parental leave.
[42] Australian Human Rights Commission- Parental Leave < https://humanrights.gov.au/quick-guide/12071> accessed 2 November 2021.
[43] Deepinder Goyal, ‘Introducing the new parental leave policy at Zomato (Zomato, 3 June 2019) < https://www.zomato.com/blog/parental-leave-policy> accessed 1 November 2021.
[44] Saumya Bhattacharya, ‘Zomato rolls out 26 weeks paternity leave’ (The Economic Times, 3 June 2019) <https://economictimes.indiatimes.com/small-biz/startups/newsbuzz/zomato-rolls-out-26-weeks-paternity-leave/articleshow/69634749.cms> accessed 2 November 2021.
[45] Ibid
[46] Jheel Parekh, ‘Back to work: Amazon supports an effortless transition for new parents’ (Amazon, 30 October 2019) <https://www.aboutamazon.in/news/workplace/back-to-work-amazon-supports-an-effortless-transition-for-new-parents> accessed 3 November 2021.
[47] The Constitution of India 1949.
[48] n 4.
[49] n 7.
[50] n 24.
[51] n 32.
[52] n 24.
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