Call Us Now

+91 9606900005 / 04

For Enquiry

Maternity Benefits To Adoptive Mothers


The Supreme Court agreed to hear a petition challenging the constitutional validity of Section 5(4) of the Maternity Benefit Act, 1961, which states that a woman who legally adopts a child below three months old will be entitled to 12 weeks of maternity leave.


GS II: Government Policies and Interventions

Dimensions of the Article:

  1. What is this provision?
  2. Maternity Benefit Act, 1961
  3. Key Changes in the 2017 Amendment
  4. Unequal Implementation of Maternity Benefit Act in India

What is this provision?

  • The original 1961 Maternity Benefit Act did not have provisions for adoptive mothers
  • The 2017 amendment introduced Section 5(4) for maternity benefits for women who adopt or act as commissioning mothers
  • Adoptive mothers of children below three months are entitled to 12 weeks of maternity leave
  • A woman adopting a child older than three months is not eligible for maternity benefits
  • A PIL challenges the provision on the grounds of discrimination and arbitrariness towards adoptive mothers
  • The PIL also contends that the provision arbitrarily discriminates against orphaned, abandoned, or surrendered children above three months
  • The petition states that the 12 weeks’ benefit is insufficient when compared to the 26 weeks’ benefit for biological mothers
  • The provision fails to stand the basic scrutiny of Part III of the Constitution, which is linked to the concept of non-arbitrariness.

Maternity Benefit Act, 1961:

  • Passed on December 12, 1961, to regulate the employment of women in “certain establishments” for the period before and after childbirth.
  • Originally applied to factories, mines, plantations and extended later in 1973 to government-owned establishments and establishments for exhibitions.
  • Repealed the Mines Maternity Benefit Act, 1941 and Maternity Benefit Act, 1929.
  • Section 4 of the Act prohibited the employment of or work by women during the six weeks immediately following delivery or miscarriage.
  • Section 5 granted paid maternity leave for up to 12 weeks if the woman had worked for at least 160 days in the preceding 12 months.
  • Violations could result in three months’ punishment, with or without a fine.

Key Changes in the 2017 Amendment:

  • Amended Section 5 to allow for 26 weeks of paid leave after childbirth for biological mothers.
  • Inserted Section 5(4) to allow adoptive or surrogate mothers to have a 12-week maternity benefit period from the date the child is handed over.
  • Inserted Section 5(5) to allow for working from home if mutually agreed upon after availing of maternity benefits.
  • Inserted Section 11 to mandate the availability of a creche facility for establishments with 50 or more employees, with four visits a day allowed for the mother and rest intervals provided.
  • Does not apply to the unorganised sector, which has been a criticized aspect of the amendment.

Unequal Implementation of Maternity Benefit Act in India

Unorganised sector women do not receive benefits

  • Women in the unorganised sector cannot avail the benefits of the Maternity Benefit(Amendment) Act 2017.

Implementation of the Act not equal across sectors

  • A report by TeamLease in 2020 revealed that the Maternity Benefit Act has not delivered a positive impact on job opportunities for women, even three years after its implementation.
  • More than five out of 10 sectors reviewed showed a drop in women’s participation since the implementation of the Act.
  • 7 out of 10 sectors were expected to show positive momentum in women’s workforce participation in the medium term, while 5 of the 10 sectors showed a drop in the share of women in their workforce.

Challenges faced by women after maternity leave

  • According to the same report, after maternity leave, women face several challenges such as wage cuts (30%), resistance or lack of support from family (25%), and access to childcare (20%).

-Source: Indian Express

February 2024