09.06.21

Can Adoptive Mothers Claim Maternity Leave?

Jahmar Clarke
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Can Adoptive Mothers Claim Maternity Leave?

The privilege of bringing a new life into this world is exactly that, a privilege. Not every woman shares in this privilege, but all can share in the joy of motherhood by other means such as adoption. An adoptive mother is no less a mother and an adopted child at birth no less a child of that mother. But how does the law treat an adoptive mother and her need for time off from work for pre and post-natal care?

A woman must meet certain requirements in Jamaica to be entitled to maternity leave. Those requirements effectively exclude a mother who does not give birth. This would also include mothers whose children were born via surrogacy.

To qualify for maternity leave with pay, a woman must be with child and employed for a continuous period of 52 weeks before she becomes entitled to maternity leave with pay. A woman who qualifies for maternity leave with pay is entitled to 12 weeks off from work of which 8 are with pay and 4 weeks without pay. Of course, an employer can choose to permit an adoptive mother to take maternity leave with or without pay but this is entirely at the discretion of the employer.

The law on maternity leave should be amended to contemplate leave for adoptive mothers. Now may be a good time to comprehensively review our law on maternity leave which was first enacted in 1979. Many countries have enacted laws which allow for an adoptive mother to become eligible for maternity leave or be provided with a benefit which mirrors the maternity leave benefit. Indeed, many companies have implemented standard best practices and have as a part of their company policy that an adoptive mother is entitled to maternity leave.

The law on maternity leave can apply in similar respect to an adoptive mother as it would a mother who is with child, particularly where the adoption was at birth. There are many other factors involved in natal care other than just time for a woman who gave birth to heal. Caring and bonding with the child are no less important as physical healing.

Becoming a mother, or not becoming one because of a miscarriage, often carries an enormous emotional toll. Part of the purpose of maternity leave is to give the mother time and space to process those emotions outside of the workplace.

The same limitations to maternity leave could be extended to an adoptive mother. For example, the limit on the number of times that an expectant mother can claim maternity leave from the same employer, which is currently at 3, could apply equally to an adoptive mother. Similarly, the qualifying period of continuous employment for 52 weeks could equally apply to an adoptive mother. The law could also limit the benefit to an adoptive mother based on the age at which the child was adopted, recognizing that adopting a 2-year old child would be very different from a 2-day old child.

There are, however, a few practical hurdles which adoptive mothers have that would require special attention from our legislators. First is the question of who is an adoptive mother. If that is defined as someone who has completed the process of legal adoption, we would need to recognize that legal adoption can take several years. It may be better to define an adoptive mother as someone who has submitted an application to adopt, but even then, under our law that application cannot be made before the child is 6 weeks old.

Another issue is that adoptive mothers in Jamaica often do not have much advance notice. They might receive a telephone call to immediately collect and take care of a baby abandoned at a hospital. The Maternity Leave Act, however, requires expectant mothers to give their employers sufficient advance notice of their intention to take maternity leave. None of these problems are unsolvable and there is ample precedent in other countries to guide us.

It may also be an opportune time to engage stakeholders in discussions on paternity leave. Paternity leave is not part of Jamaican law and is entirely at the discretion of the employer. The idea that a woman is expected to care for her child primarily on her own because paternity leave does not exist in Jamaica is steeped in idealism and may have no place in the evolving workplace environment. Moreover, it is not a valid excuse to say Jamaican men father children bountifully with different female partners. Since there is a limit on the number of maternity leave with pay a female may take, there can be conditions under which paternity leave is extended to ensure the right people benefit. Parliament should consider the changes in the global employment landscape and find the most suitable policy that will effectively address the reality of the Jamaican parents. Time to reform these labour pains.

Jahmar Clarke is an associate at Myers, Fletcher & Gordon, and is a member of the firm's Litigation Department. Shaniel may be contacted via jahmar.clarke@mfg.com.jm or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.