Maternity leave can't be denied if adopted child older than 3 months, rules Supreme Court

Supreme Court

The Supreme Court has ruled that a woman who adopts a child older than three months cannot be denied maternity leave. It held that an adoptive mother should be entitled to maternity leave of 12 weeks, regardless of the age of the child they adopt.

Maternity protection, it said, is a basic human right and non-biological ways of making a family are equally legal.

The apex court struck down as unconstitutional a provision in the Code on Social Security, 2020, which restricted maternity leave benefits to adoptive mothers only if the child was below three months of age.

"A woman who legally adopts a child, or a commissioning mother, shall be entitled to maternity benefit for a period of 12 weeks from the date the child is handed over to the adopting mother or the commissioning mother, as the case may be," it said.

A bench comprising Justices JB Pardiwala and R Mahadevan observed that family cannot be defined solely by biological ties.

"Although biology has traditionally been the predominant lens through kinship, adoption is an equally valid pathway. It is not biology that constitutes, it is the shared meaning. Biological factors by themselves do not determine family. An adopted child is not different from a natural child," the SC bench said delivering judgment.

The top court's judgment came on a plea filed by advocate Hamsaanandini Nanduri challenging Section 60(4) of the Social Security Code that allows 12 weeks of maternity leave only if an adoptive mother adopts a child below three months of age.

Recognizing shared caregiving, the SC also urged the Centre to consider introducing paternity leave as a social welfare measure.