Presenting the letter drafted by activists with backgrounds in child psychology and child rights law on the Maternity Benefit (Amendment) Bill. The letter will be submitted to the Ministers of Labour, Women and Child Development, Health and Family Welfare, Social Justice and Empowerment, and the PMO. Those who wish to endorse the letter in your capacity as an adoptive or pre-adoptive parent, can write swagataraha(at)gmail (dot) com
Shri Bandaru Dattatreya,
Hon’ble Minister of Labour & Employment,
Government of India, Shram Shakti Bhawan
Sub: Urgent need to reconsider the Maternity Benefit (Amendment) Bill, 2016
We, the undersigned, are adoptive and pre-adoptive parents who strongly urge you to reconsider Section 3B of the Maternity Benefit (Amendment) Bill, 2016 which entitles only adoptive mothers to maternity benefit of 12 weeks only if they legally adopt a child below the age of three months.
We are of the view that Section 3B of the Maternity Benefit (Amendment) Bill, 2016 should be reconsidered for the following reasons:
1. The age limitation in the Bill discriminates against babies above three months and parents who adopt them: All children have physical, emotional, psychological and social needs – regardless of whether they have been born into or adopted into families. All children need parents to spend time in caring for them. All parents need time to bond with their children, to understand their multiple and complex needs and respond to them accordingly. To say that some parents need 26 weeks while others need only 12 weeks, is legally discriminatory as well as against the principles of child development.
Biological parents have the advantage of a lead-time of nine months of pregnancy to prepare – physically, emotionally, financially for the birth of their child, adoptive parents have to be prepared to deal with the uncertainties relating to very fundamental aspects like age of the child, gender of the child, health history and needs and previous history of trauma of institutionalization. All this information relating to the child becomes available to the adoptive parents only at the time of placement when the child actually joins the family. Birth parents may also have in-built advantages of biological processes like breast feeding, family acceptance and social support, while adoptive parents have to invest time to create the psychosocial bonding with the child while battling stereotypes and prejudices in their families as well in society.
It is also important to remember that the longer a child is in institutional care, the greater is the time and parenting attention that is required to fulfil his /her various physical and psychosocial needs and meet his/developmental milestones. From that stand-point, the older the child, the greater the need for the time required for parents to nurture the child, making it necessary to revise the three-month age stipulation for adoption.
As per Section 56 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act), adoption should be resorted to for ensuring a child’s right to family and as per Section 40 is an alternative for the rehabilitation and social reintegration of orphan and abandoned children. This implies that the State believes that adoption and care in a family is in the ultimate best interest of the child and preferable to institutional care. Instead of facilitating and incentivizing the process of adoption for parents (whether biological or adoptive) who are prepared to are prepared and committed to adopt older babies and children, the State is discouraging them by depriving them of maternity leave.
2. The Bill is discordant with adoption procedures that render adoption of a child below three months impossible: The legal process to be adhered to before a child is declared free for adoption under the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act) makes it near impossible for children below three months to be available for adoption. Section 38(1), of the JJ Act requires the Child Welfare Committee (CWC) to declare an orphaned or abandoned child below two years of age to be free for adoption within two months from the date of production of the child and within four months for children above two years of age. In the case of surrendered children, the CWC must allow the parents or guardian two months time to reconsider their decision before a child can be declared free for adoption (Section 35(3), JJ Act). The Adoption Guidelines, 2015 and the the Draft Adoption Guidelines, 2016 require the Specialised Adoption Agency (SAA) to prepare the child study report and medical examination report of a child within 10 days of the CWC’s declaration. Prospective adoptive parents have 48 hours within which they must reserve a child. The SAA then has a maximum period of 15 days within which the matching process must be completed. The child should be taken in pre-adoption foster care by the prospective adoptive parents within 10 days from the date of acceptance.
Assuming that a child is abandoned/orphaned/surrendered at birth and all the above deadlines are diligently adhered to by the authorities involved, the child will easily be above three months at the time of adoption thus rendering the benefit under the provision meaningless.
3. The Bill is discordant with the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act) that allows a single person to adopt: Under Section 57(3), JJ Act, a single or divorced person can also adopt. The provision is gender-neutral and thus enables adoption by men and transgendered persons. By failing to recognise this, the Bill discriminates against adoptive parents on grounds of their gender.
Section 2 (2) of the JJ Act defines adoption as ‘the process through which the adopted child ….. becomes the lawful child of his adoptive parents with all the rights, privileges, and responsibilities that are attached to a biological child’. This implies that adopted child has the same right to their parents’ time as a biological child.
4. The Bill is incongruent with international standards and practice: As per the International Labour Organisation, if domestic law provides for adoption, adoptive parents should be entitled to the protection and benefits available offered under the ILO Maternity Benefit Convention. Countries like Australia, Brazil, Senegal, United Kingdom, Colombia, and Tajikistan among several others entitle adoptive mothers to the same leave available to biological mothers. In Slovenia, adoptive parents are entitled to 150 days of paid leave for adopting a child under four, and to 120 days for adopting a child between four and 10 years. Sweden gives parental benefits of 480 days of paid parental leave for the adoption of a child below the age of 10 years. In Canada, adoptive parents are entitled to 52 weeks of parental leave beginning no earlier than the day on which the child comes into the employees’ care and ending no later than 52 weeks after that day. This leave can be availed by both parents simultaneously. In the Russian Federation, when a married couple adopts, the couple can choose to have the father take the leave period of up to 70 days after the child’s birth and then, upon request, the parental leave period to which he might be entitled, until the child is 3 years. The mother is entitled to 70 calendar days of pre-natal leave and post-natal leave again of 70 calendar days.
Although India has not ratified the ILO Maternity Benefit Convention, since 2006, the Government of India has granted adoption leave of 135 days to women government servants on adoption of a child upto one year of age. The Guidelines Governing Adoption of Children, 2015 require government and public sector undertakings to provide adoption leave to all adoptive parents working in their offices irrespective of the age of the child.
5. Adoptive parents should also have the ‘work from home’ option – There is a need to clearly and specifically mention that the arrangement to ‘work-from -home’ as negotiated with the employer also covers adoptive parents just like biological parents.
6. Clarity required with respect to adoption of siblings: Section 39 of the JJ Act requires that all efforts be made to keep siblings placed in institutional or non-institutional care together. The Maternity Benefits (Amendment) Bill is silent about cases where two or more children from the same family may be adopted. While even 26 weeks of leave is inadequate in such cases, it is unclear whether maternity benefit would be doubled or tripled and made applicable on a per-child basis.
In the light of the above, we urge you to amend the discriminatory aspects of Section 3B of the Bill to ensure that parental benefits of 26 weeks and the work from home option is available to all persons who adopt irrespective of their gender and irrespective of the age of the adopted child.