Adopted Child Is No Different From “Natural” Child; Right Of Reproductive Autonomy Not Confined To Giving Birth Biologically: Supreme Court

The Supreme Court, today, while holding Section 60(4) of the Code on Social Security 2020 as unconstitutional, has observed that the right of reproductive autonomy is not confined to the biological act of giving birth. The Court also observed that adoption is an equal exercise of the right to reproductive and decisional autonomy under Article 21 of the Constitution and adopted child is no different from a so-called “natural” child.

The Court also held that women who adopt a child aged three months or above are similarly situated to women who adopt a child below the age of three months, and added that in matters affecting a child, paramount consideration must be given to the 'best interests' of the child.

The Bench of Justice JB Pardiwala and Justice R Mahadevan observed, "C. The right of reproductive autonomy is not confined to the biological act of giving birth. Adoption is an equal exercise of the right to reproductive and decisional autonomy under Article 21 of the Constitution...D. In matters affecting a child, paramount consideration must be given to the best interests of the child. This consideration does not conclude with the completion of the formalities of adoption or the handing over of custody; rather, it continues throughout the period the child remains a child, more particularly the period during which the child integrates into the adoptive family. The true fulfillment of the child's welfare lies in enabling the child to meaningfully adjust, bond, and flourish within the family environment...E. When subsection (4) of Section 60 of the 2020 Code is examined through another angle, the provision turns out to be incapable of practical implementation, as it cannot fully achieve the purpose for which it has been enacted. With regard to the time required to declare a child legally free for adoption, by the time such a declaration is made, the child is unlikely to be less than three months old. Thus, the age limit renders the provision illusory and devoid of practical application."

"An adopted child is no different from a so-called “natural” child, the only distinction is that the process of adoption is more visible and legally acknowledged..", the Court added.

AOR Mukesh Kumar Singh and Co. appeared for the Petitioner, while ASG K.M Nataraj appeared for the Union of India.

The provision, i.e. Section 60(4) of the Code on Social Security 2020, which was made a subject matter of challenge, entitles mothers who legally adopt a child below the age of three months to the maternity benefit for a period of twelve weeks from the date on which the child is handed over to the adoptive mother.

The petitioner had filed a petition under Article 32 of the Constitution seeking to challenge the constitutional validity of Section 5(4) of the Act, 1961, which came to be inserted vide the Amendment Act. Section 5(4) of the Amendment Act entitles only those mothers who are adopting a child below the age of three months to seek the benefit of maternity leave for a period of 12 weeks.

It was the case of the petitioner that the provision in question is a social welfare legislation, and there is no reasonable classification when it restricts the age of the infant up to three months. In other words, if a woman adopts a child above the age of three months, she will not be entitled to any such maternity leave benefit as provided under the Amendment Act.

The Court had noted that while the petition originally challenged the Maternity Benefit Act of 1961, that law was recently replaced by the Code on Social Security, 2020.

The Bench also emphasized that the "best interests of the child" do not end when the adoption papers are signed. Maternity leave is essential for the period of adjustment and integration. Older children, especially those with disabilities, require significant emotional and psychological support to bond with their new family, making maternity leave a necessity regardless of the child's age. 

It said, "The overarching theme emerging from these judgments is that the law across the globe recognizes that the best interest of the child must remain the paramount consideration in all decisions affecting a child. It needs no elaboration that children must be raised in an atmosphere of affection, understanding, and moral security."

While dealing with the issue of the right to a dignified life for adoptive parents and adopted children under Article 21 of the Constitution, the Court also said, "What can be discerned from the above discussion is that when family structures and modes of parenthood have evolved and diversified, parenthood is not confined to the biological act of giving birth. It includes a broader spectrum of choices through which individuals realize their aspiration to build a family. Thus, an atypical or unconventional familial setup does not strip away the rights guaranteed by the Constitution. In the aforesaid context, reproductive autonomy, therefore, cannot be narrowly understood as being limited to biological reproduction alone. Adoption, too, represents a conscious and meaningful exercise of the choice to create and nurture a family, and must be viewed as falling within the broader spectrum of reproductive decision-making."

The Court emphasized that the protection of maternity benefit cannot be confined keeping in mind the age of the child. More so, when this benefit seeks to support motherhood and the welfare of the child, it must extend to adoptive mothers who undertake the equally significant responsibilities of nurturing and raising a child.

The Court held, "Our analysis consists of maternity protection as a basic human right. This is divided into three parts: recognition of maternity protection in the international law framework, statutory recognition of maternity benefits in India, and the relevant precedents encapsulating judicial interpretations of maternity benefits. Then, we have discussed the constitutional guarantee of equality under Article 14 of the Constitution. This is divided into two parts: the purpose of social security benefits, and examining the validity of the impugned provision through the test of permissible classification. Then, we have talked about the right to a dignified life for adoptive parents and the adopted child under Article 21 of the Constitution. This, again, is in two parts: adoption as an expression of reproductive autonomy, and the scope and application of the principle of the "best interest of the child."

It added that the second submission canvassed on behalf of the petitioner was that the impugned provision violates the adoptive mothers’ and adoptive children's right to live life with dignity, as enshrined under Article 21, by denying the mother the right to motherhood and the adoptive children the right to receive sufficient care to be rehabilitated and integrated into a new family.

"Although biology has traditionally been the predominant lens through which kinship and family relationships are understood, non-biological modes of building a family are no less legitimate or meaningful. The decision to adopt may be motivated by a variety of personal, social, or humanitarian reasons", it said.

The Court concluded, "Overall, the foregoing conclusion is that Section 60, subsection (4) of the 2020 Code—insofar as it puts an age limit of three months on the adoptive child for the adoptive mothers to avail maternity benefit—is violative of Articles 14 and 21 of the Constitution respectively. Therefore, subsection (4) of Section 60 of the 2020 Code should now be meaningfully read as: a woman who legally adopts a child or a commissioning mother shall be entitled to maternity benefit for a period of 12 weeks from the date the child is handed over to the adopting mother or the commissioning mother, as the case may be...In light of the aforesaid discussion on the need for paternity leave, we urge the Union to come out with a provision recognizing paternity leave as a social security benefit. We emphasize that the duration of such leave must be determined in a manner that is responsive to the needs of both the parent and the child. In the result, the petition stands allowed in the aforesaid terms."

Accordingly, the Court allowed the petition. 

Cause Title: Hamsaanandini Nanduri v. Union of India & Ors. [Neutral Citation: 2026 INSC 246]

Appearances:

Petitioner: Advocate on Record Mukesh Kumar Singh And Co., Advocate Bani Dikshit, Advocate Uddhav Kumar, Advocate Krishan Kumar, Advocate Mukesh Kumar Singh, Advocate Narendra Kumar Goyal, Advocate Jeetendra Kumar, Advocate L Sivaraman, Advocate T Geetha, Advocate Ganesh Kamath, Advocate Rohit Dubey, Advocate Kajal Rani, Advocate Komal Singh, Advocate Kadam Hans.

Respondents: Additional Solicitor General K.M Nataraj, Advocate on Record Amrish Kumar, Advocate Shailesh Madiyal, Advocate Sandeep Kumar Mahapatra, Advocate Vatsal Joshi, Advocate Praneet Pranav.

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