Adoptive Parents Are Being Short-Changed by the Maternity Benefits Act

Under the amended Act, only a woman who is adopting a child under the age of three months can avail 12 weeks of maternity leave. But the adoption system works so slow, that it is practically impossible to adopt a child younger than three months.

For 39-year-old Chitra*, the day her daughter came home was one of extreme joy, but also anxiety. Her employer was not interested to give her any leave, to take care of her young daughter.

Chitra was adopting. Her daughter was nearly two years old when she came home. Given that her workplace (an IT firm) wasn’t giving her any time-off, Chitra accumulated leaves and took a month off when her daughter came home.

Chitra’s daughter came home 14 days after the Maternity Benefit (Amendment) Act 2017 was passed on April 1, 2017. The new Act actually did prescribe leave of 12 weeks for adoptive mothers.

The amended Act is hailed as inclusive and progressive as it has extended maternity leave benefits to “adoptive and commissioning mothers and provides that woman who adopts a child will be given 12 weeks of maternity leave from the date of when the child has been handed over to them”.

Under the new law, the maternity leave benefits for biological mothers has been raised from 12 weeks to 26 weeks. A woman with already two or more children is entitled to 12 weeks’ maternity leave. And adoptive mothers are given 12 weeks as well.

But here’s the catch – Chitra could not have availed the benefits of provided by the Act, anyway. The amended Act says that only a woman who is adopting a child under the age of three months can avail this 12 weeks leave. Chitra’s adopted daughter was almost two years old.

India’s adoption system works so slowly that by the time parents can take children home, they are often older than three months. There are also hundreds of older children awaiting adoption. There is no provision in the law for adoptive parents of older children to have any time-off with their kids.

For Chitra, the lack of leaves meant depending on a crèche for her 22-month-old daughter’s care. “While I managed to take a month off, it was hardly enough. I had to put her in a crèche after a month and she struggled to adjust and stopped eating there. It was only after I spent considerable time with her at the crèche did she feel confident enough to be there and eat,” she said.

Chitra says it took her and her daughter over six months to connect emotionally. Illustrating why the current clause of age limit should be removed, she said “Unless you spend time with your child and give them the psychological security, they won’t be able to bond emotionally. For that, you need to be around as much as possible.”

“It takes at least three months for a child who has come into foster care and adoption system to be cleared for adoption, unless of course, the child has been surrendered by parents,” said Sheemantika Nag, chairperson, Atmaja, Association of Adoptive Parents, a Kolkata based organisation. Nag and her association have been against the age clause in the amended Act. They say that especially for older kids, it often takes longer for them to bond with their adoptive parents. “Having an age limit on the age of the child would be disadvantaging those who chose to adopt older children,” she says.

How easy is it to adopt a child younger than 3 months?

Under the current system of adoption, it is rare for a child under three months of age to be adopted owing to the levels of procedures that are detailed under the Juvenile Justice (Care and Protection of Children) Act, 2015.

In the adoption system, children are classified into categories such as as “orphan”, “abandoned” and “surrendered.” There are different periods of time in these categories, by which children will finally come into the system and up for adoption.

According to the Adoption Regulations 2017, “an abandoned or orphaned child is legally free for adoption within a period of of two or four months, from the date of production of the child before the Child Welfare Committee (CWC)”. In the case of those who have been ‘abandoned’, attempts are made to trace parents by the local police. A report has to be submitted by the police within two to four months in the case of an abandoned child. If the police are unable to trace the parents by four months, then the children enter the system for adoption.

A legally mandated two month wait time is also applicable in case of “surrendered” children (children whose parents have legally given up parental rights), giving time for biological parents to reconsider their decision. The CWC uses 60 days to counsel the immediate and extended biological family, to take the child back. This time for reconsideration is as per the law.

After all this due diligence has been done, then a report, declaring the child “legally free” for adoption prepared by the CWC and enables the specialised adoption agency to put up the child’s profile on the centralised adoption website CARINGS managed by Central Adoption Regulatory Authority (CARA).

This means, most children are well above three months of age by the time they finally are put up for adoption and then subsequently ‘matched’ with a prospective family.

It is this disconnect with ground reality that those in the adoption space and parents themselves are calling out.

How are adoptive parents struggling with the law?

The Wire spoke to a number of women who have adopted children and their stories highlight the unique challenges of adoptive parents.

Raji*, a software engineer from Hyderabad says that she was forced to quit her job in June 2018 because she could not avail maternity leave. “I had told my employer last June about my decision to adopt and they had assured to give me leaves in line with maternity leave. When the time came, they said that this wouldn’t be applicable to me as my child was five months old,” adding, “What the government fails to understand is that irrespective of the age of the child, parents and children who come together to make a family through adoption need time to bond.”

A report by TeamLease Services, a human resources and staffing services provider published in June 2018 and which studied a sample size of 300 employers across sector, says that post-maternity attrition rate which is currently as high as 56% could drop to 33% in the next four years due to the benefits made for women through this legislation. This is good news in general for women in the workforce.

But is this translating to women who adopt, when it seems that there are very few companies who want to take a liberal view of the amended Act?

For those who are waiting for their child to come home like Sugandha Agarwal, a 34-year-old lawyer from Delhi and soon-to-be single mom, the age clause has caused a lot of anxiety. “I think the rule is very unfair and every adopted parent, not just mothers, should be given time off by employers irrespective of age of child and this needs to be addressed at the earliest,” she told The Wire adding that any presumption that adoptive parents don’t need the time to bond with their child is cruel.

“If CARA really is keen to promote adoption, then they should allocate leave to adoptive parents irrespective of the age of the child and gender of parent and make it parental leave.” said Sugandha.

In Sugandha’s case, she has managed to successfully negotiate with her employer to avail 12 weeks benefit irrespective of age of her adopted child.

This reporter reached out to CARA CEO Col Deepak Kumar with a questionnaire to understand better the intent behind the age clause. The questionnaire went unanswered and the reporter was redirected to the Ministry of Women and Child Development. Attempts to get through to concerned authorities at WCD was of no avail.

However, a source within CARA claims that when this clause was raised in a meeting immediately after the amended Act was released, Deepak Kumar said that CARA was not consulted by the ministry on this policy and that it was unclear to him how the clause was passed in the amended Act.

Other prospective adoptive parents like Tahira Thekaekara feel that the government needs to do more to incentivise adoption with the right kind of policy support. She feels that most companies don’t consider adoption leave because of oversight and this is further exacerbated because of current policy which is vague and doesn’t provide sufficient guidance.

“I have a friend who works for a BPO and she has no access to her human resources team to seek adoption leave or to even make them understand this. Most HR teams too don’t know how to tackle this,” says Tahira. “Amending the Maternity Benefits Act isn’t a big thing, but to make the Act gender neutral and more inclusive is what will help everyone,” she said.

Unlike in the case of a biological child, where the maternity leave provided serves the purpose of both bonding and providing nourishment, the 12 weeks leave provided to adoptive mothers and surrogate mothers seems to be limited in many aspects.

Children’s age shouldnt matter, children should matter

According to Avinash Kumar, founder of Families of Joy Foundation, an adoption resource and counseling centre, the entire discussion around equal parental leave for adoptive parents has been limited and often being looked at from a ‘parent-and-employer relationship’ and not necessarily from the child’s perspective.

“When policymakers think about providing leave in the first few months or first year of adoption, they are only thinking from a parent’s point of view or the employers.” he says.

Avinash highlights a unique challenge to adoptive parents – the point of disclosure to the child about his/her adoption. “For children who were put up for adoption, teenage is an especially delicate phase as this is the time they often have most questions regarding their birth family and every child reacts differently to disclosure and can be a tumultuous journey. It is during this phase that parents should be provided some time off,” he says and suggests that the government provide staggered leaves which parents can avail when the child needs it the most instead of a block of leaves.

Saras Bhaskar, a Chennai-based senior psychologist, who has specialised in counseling families opting for adoption says that while each child is unique and takes their time to bond, the older the child, the more stressful it could be for them when placed in an unfamiliar setting.

“As a child is older, they become more aware of who their caretakers are, who is feeding them and a level of attachment is formed. Removing them from familiar situation then and placing them with a new family can be stressful for the child. The parents too have lot to understand from the sleeping patterns of the child to what food he/she likes, “ she explains.

She says ultimately it is in the best interest of the child, if all adoptive parents are provided with leaves irrespective of age of child. “Parents are very anxious for the child to assimilate within their family and so, i think providing that time will be in the best interests of the child,” she adds.

With only 3,276 Indian children adopted in 2017-18 within India and and over 600 internationally, adoptive parents feel the government needs to do more to ensure that they are supported adequately with right kinds of laws and policies. They say this will ensure children don’t slip through cracks of what is still a very difficult-to-navigate system of adoption in the country.

*Names of some of the respondents have been changed.

D.V.L. Padma Priya is a freelance journalist.