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Adoptive mothers and maternity leave

As a city dweller, my family always looks forward to Saturday nights because apart from the well-deserved break from work and online school, it is our family’s “movie night.” After dinner, we set up foam beds in our living room and imagine that we are out camping, but with an outdoor cinema. It’s nothing fancy, but what makes it special is the consistency and the commitment to make it happen every Saturday. It’s the secret to our family bond.

Just last week, we watched Instant Family, a movie about a couple that became adoptive parents of three siblings from foster care. It gives you a glimpse of the joys and travails of adoption, obscuring the difference between pregnancy and the adoption process, between giving birth and adopting a child. In either case, one becomes a parent from Day 0 which leads me to raise this question: Can adoptive mothers claim maternity leave under the 105-Day Expanded Maternity Leave Law (EMLL), which biological mothers enjoy?

Republic Act (RA) No. 11210 or the EMLL grants all covered female workers in government and the private sector, including those in the informal economy, regardless of civil status or the legitimacy of her child, 105 days’ maternity leave with full pay and an option to extend for an additional 30 days without pay. For female workers who qualify as a solo parent under RA No. 8972, or the Solo Parents’ Welfare Act, an additional 15 days’ maternity leave with full pay is granted. In instances of miscarriage or emergency termination of pregnancy, 60 days’ maternity leave with full pay is granted.

Section 3 of the EMLL specifically mentions pregnancy, miscarriage, or emergency termination of pregnancy as a prerequisite to qualify for maternity leave. No other cases are mentioned that would seem to cover the circumstances of an adoptive mother. Thus, if we look only at the EMLL, it appears that adoptive mothers are not eligible to claim maternity leave.

However, the good news is that memos and resolutions have been issued by the Civil Service Commission (CSC) and the Department of Social Welfare and Development (DSWD) stating otherwise, citing provisions of RA No. 8552 or the Domestic Adoption Law.  Section 12 of which provides that if a child is below seven years of age and is placed with the prospective adopters through a pre-adoption placement authority issued by the DSWD, the prospective adopters are to enjoy all the benefits to which biological parents are entitled from the date the adoptee is placed in that household.

The eligibility of adoptive parents is further supported by Section 34 of the Implementing Rules and Regulations of RA No. 8552, which state that adoptive parents enjoy all the benefits to which biological parents are entitled as regards the adopted child. Maternity and paternity benefits given to biological parents upon the birth of a child may be availed of if the adoptee is below seven years of age as of the date the child is placed with the adoptive parents through the Pre-Adoptive Placement Authority issued by the DSWD.

Although another law supports the rights of the adoptive mother to maternity leave benefits, it would be impractical for adoptive mothers to comply with the documentary requirements (i.e. proof of pregnancy) mandated by the government agencies or the Social Security System (SSS) to claim maternity leave benefits under the EMLL.

Say the employer grants the 105-day leave with full pay to the adoptive mother on account of the EMLL, does the benefit qualify as tax-exempt?

In the Bureau of Internal Revenue’s Revenue Memorandum Circular (RMC) No. 105-2019, a female worker is entitled to full pay during maternity leave which consists of (i) SSS maternity benefit computed based on her average daily salary credit and (ii) salary differential to be paid by the employer, if any.

Both the SSS maternity benefit and the salary differential are exempt from income and withholding taxes based on  Section 2.78.1(B)(1)(e) of Revenue Regulation No. 2-98, granting tax exemption on payments of benefits under the Social Security System Act of 1954, as amended (now RA No. 11199 or the Social Security Act of 2018, which is known as the SSS Law).

Considering that maternity leave for adoptive mothers is not covered under the SSS Law, one cannot avail of the tax exemption discussed under RMC No. 105-2019. Thus, it is my opinion that the leave benefit with full pay granted to adoptive mothers is taxable even if the leave was granted following the rules under the EMLL.

The EMLL and the joint implementing rules and regulations issued by the CSC, Department of Labor and Employment, and SSS were created in recognition of the maternal function of women as a social responsibility and to provide them with ample transition time to regain health and overall wellness, as well as to assume their maternal roles before resuming paid work. Although adoptive mothers do not go through pregnancy and labor, which requires them to regain their health and overall wellness, adoptive mothers also need time to bond and nurture a relationship with their child, one of the prime objectives of the EMLL. Thus, it would be worthwhile if the EMLL and other related benefits can be explicitly granted as well to adoptive mothers. After all, a mother is a mother, with or without the labor pains.

The views or opinions expressed in this article are solely those of the author and do not necessarily represent those of Isla Lipana & Co. The content is for general information purposes only, and should not be used as a substitute for specific advice.


Floredee T. Odulio  is a Director at the Client Accounting Services group of Isla Lipana & Co., the Philippine member firm of the PwC network.

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