Motherhood is not defined by pregnancy alone. In today's evolving world, many women are embracing surrogacy and adoption to build families, and Indian law is beginning to recognise the need for equal maternity benefits in these journeys.
Whether you're an adoptive or commissioning mother, it's crucial to understand your legal entitlements under Indian law. Here's what you need to know:
Legal Framework: Maternity Benefit (Amendment) Act, 2017
The Maternity Benefit Act, 1961, governs paid maternity leave for women in India. It was amended in 2017 to include two important categories:
- Adoptive mothers
- Commissioning mothers (i.e., mothers who opt for surrogacy)
This landmark amendment extended maternity leave rights beyond just biological pregnancy.
Definition of a Commissioning Mother
As per the Act:
- A commissioning mother is a biological mother who uses her egg to create an embryo implanted in another woman (the surrogate), and the child is biologically hers.
Leave Entitlement: 12 weeks of paid maternity leave
Starts from: The date the child is handed over to the commissioning mother
Definition of an Adoptive Mother
An adoptive mother is a woman who legally adopts a child.
Leave Entitlement: 12 weeks of paid maternity leave
Starts from: The date the child is handed over to her
Condition: The adopted child must be less than 3 months old.
This means if the child is older than 3 months, the adoptive mother is not eligible for paid maternity leave under the Act-a gap many legal experts and parents are urging lawmakers to address.
Eligibility Conditions Under the Law
To claim maternity benefits under the Act:
- You must be a female employee working in an organization that is covered by the Maternity Benefit Act (i.e., at least 10 employees).
- You should have worked for at least 80 days in the 12 months prior to the date of expected leave.
What Documents May Be Required
Employers may request certain documents to process your maternity leave, including:
- Adoption deed (for adoptive mothers)
- Surrogacy agreement or hospital documents (for commissioning mothers)
- Child handover or custody proof
Each workplace may have specific requirements-always confirm with your HR department.
What if You're Not Covered Under the Act?
If your company doesn't fall under the Maternity Benefit Act (like certain small private setups or unorganized sectors), you can still:
- Request unpaid leave
- Use earned or casual leave
- Ask for flexible work options or remote work
- Negotiate leave directly with HR on humanitarian grounds
Also, some progressive companies voluntarily extend maternity benefits to adoptive and commissioning mothers even when not legally required.
Other Legal Protections
No termination during maternity leave: Employers cannot dismiss or discriminate against a woman for taking leave under the Act.
Right to return to work: You are entitled to resume your position or an equivalent role after your maternity leave.
What's Still Missing in the Law?
While the 2017 amendment was a positive step, there are still some gaps:
- No maternity leave for adoptive mothers of children over 3 months
- No clear mention of same-sex couples or single fathers
- Limited clarity on multiple adoptions or surrogacies
Final Thoughts
Adoption and surrogacy are meaningful, loving paths to parenthood-and women who choose them should receive equal respect and support at the workplace.
If you're planning to adopt or become a mother via surrogacy, know your rights, gather your documents, and speak with HR early. Your journey to motherhood may be different, but your need for time, bonding, and care is the same.
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