Adoption, Equality, and the Law: Supreme Court Rewrites Maternity Benefit Limits – Frontline

Published : Mar 19, 2026 16:19 IST – 8 MINS READ

V.VenkatesanV. Venkatesan is an independent legal journalist based in New Delhi. 

The Supreme Court struck down a rule that denied maternity leave to women who adopted children older than three months, holding that the law must protect motherhood itself, not just childbirth.

Palna, a state-run orphanage in New Delhi, India. (Representational image). The Supreme Court has struck down the three-month age limit for adoptive mothers to claim maternity benefits under the Code on Social Security, 2020, citing inconsistencies with the adoption process timeline. | Photo Credit: Pradeep Gaur via Getty Images

A Supreme Court judgment rarely opens with a poem. The Bench of Justices J.B. Pardiwala and R. Mahadevan, delivering judgment on March 17 in Hamsaanandini Nanduri v. Union of India, chose to begin with six lines by Fleur Conkling Heyliger, an American poet whose verse has circulated in the adoption community for decades: “Not flesh of my flesh, / Nor bone of my bone, / But still miraculously my own. / Never forget for a single minute, / You didn’t grow under my heart, / But in it.” The choice was deliberate. It announced, before a word of legal analysis, that the court understood what was at stake: whether the law would recognise the full human meaning of motherhood.

The petition before the court, filed under Article 32 by an adoptive mother of two children, challenged Section 60(4) of the Code on Social Security, 2020—the successor provision to Section 5(4) of the Maternity Benefit Act, 1961, as amended in 2017, which had first extended maternity benefit to adoptive and commissioning mothers. The Code came into force on November 21, 2025, consolidating nine labour statutes into a single framework. What it inherited, and what this judgment addresses, was a restriction embedded in the original 2017 amendment: only a woman who adopted a child below the age of three months was entitled to 12 weeks of maternity benefit.

The provision also covered commissioning mothers—women, who have children through surrogacy arrangements—but the challenge before the court was confined to adoptive mothers. For a commissioning mother, the timeline of the surrogacy is known and planned; the handover of an infant is foreseeable. For an adoptive mother navigating the procedural architecture of the Juvenile Justice Act, 2015, and the Central Adoption Resource Authority (CARA) Adoption Regulations, 2022, as the court demonstrated in clinical detail, a three-month-old child was a practical impossibility.

The court’s timeline table is one of the most striking passages in a judgment already notable for its range. For a surrendered child, biological parents are given two months to reconsider; the institution where the child is placed must then bring the case before a Child Welfare Committee; the child study report and medical examination report must be uploaded; only then can a prospective adoptive parent be identified through the centralised portal.

For an abandoned or orphaned child below two years, the minimum timeline from identification to referral runs to over 70 days; for older children, it exceeds 120 days. The court’s conclusion required no elaboration: “by the time the child is legally placed with the adoptive mother, the statutory age limit would, in most cases, stand exhausted.”

The Bench made it clear that the constitutional promise of social justice demands not merely formal enactment but meaningful accessibility. The law cannot be “merely symbolic or illusory.” This is the enforceability argument, and it sits at the heart of the judgment—alongside, and in some ways above, the equality analysis.

Equality analysis

The equality analysis is the more constitutionally demanding contribution. The government’s defence of the three-month cap rested on two propositions: that a child older than three months has diminished intensive dependency on the primary caregiver, and that creche facilities available under Section 67 of the Code provided an adequate substitute for mothers who fell outside the provision. The court rejected both. The creche obligation under Section 67 arises only in establishments with 50 or more employees—a threshold that excludes a large segment of working women, particularly in the informal and small-enterprise sectors.

And a facility that keeps a child during working hours is not, in any meaningful sense, equivalent to the sustained presence of a mother during the initial period of family integration. The government’s argument, the court found, proceeded from “a narrow and restrictive understanding of adoption” that reduced it to infant care and ignored the bilateral adjustment that adoption requires of both child and parent.

The equality argument rests on the two-pronged test that has governed Article 14 jurisprudence since the Supreme Court’s judgment in State of West Bengal v. Anwar Ali Sarkar (1952): intelligible differentia and rational nexus with the object of the legislation. The object of maternity benefit, as the court traced it through decades of legislative history and judicial interpretation, is not the biological process of childbirth but the attainment of motherhood—the physical, emotional, and economic support that enables a woman to discharge her responsibilities as a mother without sacrificing her livelihood.

That object applies with equal force to a woman who adopts a five-month-old child. The classification between women who adopt below three months and those who adopt above it has no rational nexus with that object. It is, in the court’s formulation, under-inclusive—it confers a benefit on some who are similarly situated while excluding others, without justification.

Maternity protection as a human right

The Bench was particularly attentive to the position of children with disabilities, who wait longer in institutional care because prospective parents take longer to be identified and matched. An age cap that already excludes most adoptive mothers under ordinary circumstances operates, in this context, to actively discourage the adoption of the most vulnerable children. The provision penalises not just the mother but the child.

The international legal architecture around maternity protection provided the court with a broader frame. The International Labour Organization’s (ILO) Maternity Protection Conventions represent a century of recognition that economic participation and motherhood are not incompatible. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) obliges state parties to prevent discrimination on grounds of maternity and to introduce leave with comparable social benefits.

The Convention on the Rights of the Child places the best interests of the child at the centre of all laws and policies affecting children. What emerges from this framework—and what scholars of labour law have long argued—is that maternity benefit is not an employer concession but a human right, one that corrects structural inequalities in the labour market and enables substantive rather than merely formal equality.

The court drew on this academic tradition explicitly, citing the concept of “defamilisation”—the reduction of women’s reliance on family networks for economic security—and the Wollstonecraft Dilemma, the tension between recognising women’s role as caregivers and ensuring their equal participation in the workforce. Maternity benefit, on this understanding, is the law’s acknowledgement that the two are not in irreconcilable conflict.

The South African Constitutional Court’s judgment in Werner Van Wyk v. Minister of Employment and Labour(2025) provided a comparative reference. That court found a two-year age cap on adoption leave unconstitutional, but—and this is a distinction the Hamsaanandini judgment does not fully capture—it suspended the declaration of invalidity to allow Parliament to legislate a replacement rather than providing immediate interim relief on the age cap. The Indian court took a more interventionist path.

Paragraph 168 of the judgment, in which the court provides a fully substituted statutory text for Section 60(4), is its most legally significant—and most debatable—act. In Hiral P. Harsora v. Kusum Narottamdas Harsora(2016), the Supreme Court struck the words “adult male” from Section 2(q) of the Protection of Women from Domestic Violence Act, 2005—a deletion, not a substitution.

Here, the court went further, not merely excising the offending condition but providing replacement legislative language: a woman who legally adopts a child—at any age—is entitled to 12 weeks of maternity benefit. Parliament might reasonably have chosen six months, or a year, or a graded scheme. It was given no opportunity to do so.

Paternity leave

The judgment’s final section, on paternity leave, is technically obiter but structurally important. In paragraphs 155 to 165, the court makes an argument that is simultaneously feminist and foundational: the early months of a child’s life are irretrievable, the absence of a father during this period has lasting developmental consequences, and a legal framework that treats caregiving as a maternal obligation rather than a parental one perpetuates the gendered structures that maternity benefit was designed to correct.

Fifteen days of paternity leave for government servants, the court observed, is inadequate. The Union was urged to legislate. That the court said so—in a reportable judgment, in language both precise and poignant—is itself a political act.

The poem the judges chose to open with is not a legal argument. But it communicates something that legal language often cannot: that the transition into motherhood through adoption is not completed at the moment of handover, not measured in months, and not reducible to the intensity of infant dependency. It happens in the heart. The law, the Supreme Court held, must now recognise that too.

V. Venkatesan is a senior legal journalist and a researcher.