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

What is Section 5(4) of the Maternity Benefit Act, 1961?

• Section 5(4) states, “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 from the date the child is handed over to the adopting mother or the commissioning mother, as the case may be.” The term “commissioning mother”.

• It 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.

Is this section a part of the original Maternity Benefit Act, 1961?

• No, 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.

How current petition is challenging section 5(4) of the Maternity Benefit Act, 1961?

• The PIL challenges this provision on grounds of being “discriminatory” and “arbitrary” towards adoptive mothers.

• It also arbitrarily discriminates against orphaned, abandoned, or surrendered children above the age of three months, which is completely incompatible with the object of the Maternity Benefit Act as well as the Juvenile Justice Act.

• Section 5(4) of the Maternity Benefit Act conflicts with Section 38 of the Juvenile Justice Act, 2015, which requires any orphaned, abandoned, or surrendered the child to be declared “legally free for adoption” by the Child Welfare Committee.

• The Adoption Regulations require two months for a child to be declared “legally free for adoption”.

Maternity Benefit Amendment Act 2017

• 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.

• The Maternity Benefit (Amendment) Act, 2017 amended Section 5 of the erstwhile Act to allow 26 weeks of paid leave after childbirth, although only to biological mothers.

• According to Section 5(4) of 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 from the date the child is handed over to the adopting mother or the commissioning mother, as the case may be.”

• 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.”

• Note: A woman adopting a child older than three months gets no benefits.

Challenges for adoptive mothers

• The absence of any provision for maternity leave for a mother adopting an orphaned, abandoned, or surrendered child invariably prevents them from being able to utilise the statutory maternity benefits for adopted mothers, accorded by way of the 2017 amendment.

• It becomes “almost impossible” for a mother to adopt a child less than three months old, owing to the adoption procedure is fraught with delays.

• Section 5(4) of the Maternity Benefit Act also conflicts with Section 38 of the Juvenile Justice Act, 2015, which requires any orphaned, abandoned, or surrendered the child to be declared “legally free for adoption” by the Child Welfare Committee.

• The Adoption Regulations require two months for a child to be declared “legally free for adoption”.

Evolution of Maternity Benefits and related laws in India

• The Maternity Benefit Act was originally passed by Parliament on December 12, 1961.

• They were introduced to regulate the employment of women in “certain establishments” for the period before and after childbirth and to provide for maternity benefits and certain other benefits.

• It repealed the Mines Maternity Benefit Act, of 1941 and the Maternity Benefit Act, of 1929.

• Section 4 of the 1961 Act prohibited the employment of or work by women during a certain period and under sub-section (1) stated, “No employer shall knowingly employ a woman in any establishment during the six weeks immediately following the day of her delivery or her miscarriage.”

• The right to paid maternity leaves was also given under Section 5 of the 1961 Act, although the period of such leave could not exceed twelve weeks.

• Additionally, no woman could be allowed to avail of 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.