Woman Attaining Motherhood Through Surrogacy Entitled To 'Maternity Leave': Orissa High Court

In a landmark decision, the Orissa High Court has held that a woman employee who attains motherhood through 'surrogacy' is also entitled to avail the benefit of maternity leave as it is not only beneficial for the concerned woman but also needed for a healthy rearing of a new-born.

Granting judicial sanction to the vital right of female employees, the Single Bench of Dr. Justice Sanjeeb Kumar Panigrahi held –

“…right to life under Article 21 of the Constitution includes the right to motherhood and also, the right of every child to full development. If the Government could provide maternity leave to an adoptive mother, it would be wholly improper to refuse to provide maternity leave to a mother who had begotten a child through surrogacy procedure…”

Brief Background

The petitioner, while working as the Joint Director (Accounts) in Gopabandhu Academy of Administration, applied for the maternity leave from 25.10.2018 to 22.04.2019 as she attained motherhood on 20.10.2018 through surrogacy.

Subsequently, in continuation of the maternity leave, she also applied for earned leave from 23.04.2019 to 09.09.2019. She joined in her duty on 10.09.2019. Her applications for leave were forwarded to the Finance Department for sanction.

However, the Under Secretary to the Government in the Finance Department returned the application with a request to the authorities to examine the tenability of such leave as per the applicable leave Rules of government servants.

It was also indicated that at present, there is no provision for grant of leave to women employees who beget through the assisted reproductive technology or surrogacy. Thus, being aggrieved by non-availability of leave provision, the petitioner approached the High Court.

Court's Observations

The Court noted that under Rule 194 of the Odisha Service Code, a woman employee is entitled to avail 180 days of maternity leave. Such benefit is also extended to the female employees who attain motherhood through adoption of a child up to one year of age. But strikingly, a similar provision is conspicuously absent in case of women attaining motherhood through 'surrogacy'.

To this effect, the Court referred to the decision of the Rajasthan High Court in Smt. Chanda Keswani v. State of Rajasthan wherein it was held that once the surrogacy has been recognized by the Parliament by enacting the Assisted Reproductive Technology (Regulations) Act, 2021, a woman cannot be denied maternity leave for begetting child through surrogacy.

Justice Panigrahi also borrowed credence from the judgment of the Bombay High Court in Dr. Mrs Hema Vijay Menon v. State of Maharashtra and held –

“Maternity leave should be granted to employees who become mothers through surrogacy to ensure equal treatment and support for all new mothers, irrespective of how they become parents. Additionally, the initial period after the birth of a child is crucial for the mother's involvement in caregiving and nurturing, which is pivotal for the child's development.”

The Court also referred to the decision of the Apex Court in Anuj Garg v. Hotel Association of India wherein it was held that changed social psyche and expectations are important to upkeep the law. Thus, the High Court observed that rules and regulations should be interpreted in light of advancements in medical science and changes in societal conditions.

“Recognizing and supporting surrogacy as a legitimate means of becoming a parent aligns with India's progressive stance on reproductive rights and gender equality. Providing maternity leave for these mothers ensures that they have the necessary time to create a stable and loving environment for their child, promoting the well-being of both the mother and the child,” it added.

Resultantly, the Court directed the State to grant 180 days of maternity leave to the petitioner and also ordered to incorporate in the Rules a provision for providing maternity leave to commissioning mothers so as to provide equal treatment to children born through surrogacy along with their mothers.

Case Title: Supriya Jena v. State of Odisha & Ors.

Case No: W.P.(C) No. 30616 of 2020

Date of Judgment: June 25, 2024

Counsel for the Petitioner: Mr. D.P. Nanda, Sr. Advocate and associates

Counsel for the State: Mr. Dhananjay Mund, Addl. Govt. Advocate

Citation: 2024 LiveLaw (Ori) 56

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