MATERNITY BENEFITS FOR SURROGACY AND ADOPTION: LEGAL STAND
- ByAdmin --
- 29 Apr 2025 --
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The issue of maternity benefits for surrogacy and adoption has become a significant topic of legal and social debate in India. While the Maternity Benefit Act, 1961 grants certain rights and protections to women employees for biological motherhood, questions surrounding surrogacy and adoption continue to spark discussions regarding equality and justice in labor laws.
Maternity Benefits Under the Maternity Benefit Act, 1961
The Maternity Benefit Act, 1961 provides benefits to female employees working in factories, mines, and plantations, as well as those under certain other categories of employment. These benefits include:
- Paid maternity leave: Female employees are entitled to 26 weeks of paid maternity leave for the birth of their child.
- Protection from termination: A woman cannot be terminated from her job during her maternity leave.
- Additional benefits: The Act also provides provisions for additional benefits like medical bonus and crèche facilities in some cases.
However, the Act's provisions are traditionally limited to biological mothers. As surrogacy and adoption have gained attention, the need for maternity benefits for women in such circumstances has become more apparent.
Maternity Benefits and Surrogacy
Surrogacy involves a woman (the surrogate) carrying and delivering a child for another person or couple. The legal recognition of maternity benefits for surrogacy is complex and nuanced.
Legal Provisions for Surrogacy Under the Surrogacy (Regulation) Act, 2021
The Surrogacy (Regulation) Act, 2021 provides a legal framework for the regulation of surrogacy in India, focusing on ethical practices and protecting the rights of the surrogate mother. However, when it comes to maternity benefits, the Act does not explicitly grant them to surrogate mothers.
- Surrogate mother’s rights: The surrogate mother is entitled to compensation for the pregnancy and childbirth, but the Maternity Benefit Act, 1961, does not cover her entitlements to maternity leave or financial support.
- Commissioning parents: The Act provides that commissioning parents (those intending to become parents through surrogacy) may be eligible for parental leave benefits from their employer, but the focus remains on biological mothers.
Thus, while the Surrogacy Act ensures certain protections for surrogates, maternity benefits remain a grey area, and this has led to calls for legislative reforms to extend the same benefits that biological mothers receive under the Maternity Benefit Act.
Maternity Benefits and Adoption
Adoption is another critical area where the question of maternity benefits arises. Adoptive mothers in India do not always receive the same benefits as biological mothers under the current legal framework, even though they are equally involved in the child's care.
Legal Framework for Adoption Under the Adoption Regulations
Under the Juvenile Justice (Care and Protection of Children) Act, 2015, and the Central Adoption Resource Authority (CARA) guidelines, adoptive parents are entitled to certain leave benefits, but these are generally not as extensive as the maternity leave granted to biological mothers.
- Maternity leave for adoptive mothers: The Maternity Benefit Act, 1961, has been amended in recent years to extend maternity leave to adoptive mothers. According to the latest amendments, an adoptive mother is entitled to 26 weeks of maternity leave (the same as biological mothers), but only if the child is under the age of three months at the time of adoption.
- Provisions for the commissioning mother: In the case of surrogacy, the commissioning mother (who intends to adopt the child post-birth) is also entitled to 26 weeks of maternity leave, provided the child is under three months old. However, for adoptive fathers, the Act does not grant maternity leave, which has led to debates on the necessity of equal leave policies for fathers.
Key Challenges in Extending Maternity Benefits
Several challenges arise in the implementation and extension of maternity benefits for surrogacy and adoption cases, which include:
- Lack of uniformity in laws: The absence of consistent legal provisions for surrogate mothers and adoptive mothers creates ambiguity. For example, surrogate mothers do not have the same entitlements to paid leave or medical benefits as biological mothers.
- Gaps in social security: Many women working in the informal sector or in freelance jobs are excluded from maternity benefits under the Maternity Benefit Act, despite their roles as mothers (biological, adoptive, or surrogate).
- Financial security for surrogate mothers: While the Surrogacy Act ensures compensation, it does not offer long-term financial security or any social security provisions for surrogate mothers, which puts them in a vulnerable position.
Recent Developments and Calls for Reform
Given the growing awareness of the need for equal treatment of biological, adoptive, and surrogate mothers, several calls for reform have emerged:
- Maternity Benefits for Surrogates: Advocates are pushing for amendments to the Maternity Benefit Act to ensure that surrogate mothers are granted the same rights to maternity leave and financial security as biological mothers. This includes paid maternity leave and other welfare benefits.
- Parental Leave for Fathers: There is a growing demand for paternity leave for both biological and adoptive fathers to allow both parents to share in the caregiving responsibilities.
Conclusion
The legal framework surrounding maternity benefits for surrogacy and adoption in India has made significant strides, particularly with the recent amendments to the Maternity Benefit Act, 1961. However, challenges remain, especially concerning the protection and entitlements of surrogate mothers. The current legal provisions need further reform to ensure that all mothers — whether biological, adoptive, or surrogate — receive equal protection under the law.
Reforms that extend maternity benefits to all types of motherhood will not only enhance gender equality in the workplace but also promote the welfare of mothers, their children, and families as a whole.
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