Delhi: Supreme Court extends maternity leave to adoptive mothers

The ruling overturns a provision that previously limited this right to cases where the child was under three months old. However, legal disparities remain: biological mothers, for example, are entitled to 26 weeks’ leave, whilst fathers are entitled to just 15 days, and only if they work in the public sector.

New Delhi (AsiaNews) - Under new Supreme Court guidelines, an adoptive mother can now receive up to 12 weeks’ maternity leave regardless of the child’s age. The ruling overturns the section of the 2020 Social Security Code that granted maternity leave only to mothers who had adopted children under three months old.

This provision had been particularly criticised, as the adoption process is usually very lengthy and the child is very often over three months old at the time of placement. An “artificial” distinction between mothers, the judges had commented, especially considering that adoptive mothers have the same role, the same responsibilities and the same care obligations.

The Supreme Court amended the existing law, removing the three-month age restriction and affirming that adoptive mothers have the same rights and obligations towards a child as biological mothers.

The leave period, however, as activists and members of civil society have pointed out, remains set at 12 weeks, whilst that of biological mothers is 26 weeks – more than double. The repeal of this section is therefore only a first step towards recognising equal rights between biological and adoptive mothers. However, the Supreme Court has reiterated that the role of the mother is not merely biological, but is defined by care and responsibility.

The Social Security Code, which came into force in November 2025, brings together nine laws into a single regulatory framework with the aim of creating a “more comprehensive and inclusive protection system” for all sections of the workforce.

The law comprises some 164 articles covering various topics, such as employees’ pay, the social security fund and maternity benefits. Article 60, which governs the “right to maternity allowance”, had raised concerns within civil society because it discriminated against adoptive mothers, violating the rights to equality, life and personal freedom enshrined in the Constitution.

In its ruling, the Supreme Court also discussed parental equality and considered the possibility of extending paternity leave – currently 15 days for civil servants (with no provision in the private sector) – to cover adoption as well. “Parenting is not a solitary function performed by a single parent, but a shared responsibility in which each parent contributes to the child’s holistic development,” the Court stated.

However, in reality, this concept is not yet fully accepted or recognised in the Indian workplace. The Court urged the government to consider the draft bill on paternity leave and parental benefits tabled last year, which aims to secure eight weeks’ paternity leave, and directly called on trade unions to “draft a provision recognising paternity leave as a social security benefit”, so that it is also incorporated into the private sector.

The introduction of maternity benefits dates back to the colonial era. The Bombay Maternity Act of 1929 introduced a series of measures to protect women working in factories, a provision followed by similar laws in other parts of the country, until 1961, when Parliament passed the Maternity Benefit Act, which established 12 weeks’ maternity leave, later increased to 26 weeks in 2017. On that occasion, surrogate and adoptive mothers were also included, for whom a 12-week leave was introduced. The 1961 Act was subsequently incorporated into the Social Security Code of 2020, currently in force, which aims to extend social protection to all workers, including on-call workers and ‘gig workers’.