Maternity Leave Can't Be Denied To Mother Who Has Begotten Children Through Surrogacy: Rajasthan High Court

In a significant order, the Rajasthan High Court has clarified that a natural biological mother, and a mother who has begotten a child through surrogacy cannot be differentiated for the purpose of granting maternity leave.

The single-judge bench of Justice Anoop Kumar Dhand also opined that babies newly born through the process of surrogacy cannot be left at the mercy of others, and they require ‘love, care, protection and attention of mother’ during infancy.

“…The right to life contained under Article 21 of the Constitution of India includes the right of motherhood and the right of the child to get love, bond of affection and full care and attention. …Making a difference between natural biological mother and surrogate/commissioning mother would amount to insult of motherhood. A mother cannot be discriminated, as far as maternity leave is concerned, only because she begot the child through the process of surrogacy”, the bench sitting at Jaipur noted while holding that the state government’s order, denying maternity leave of 180 days to the petitioner for taking care of her twins begotten through surrogacy, must be quashed.

Justice Anoop Kumar Dhand also made a serious observation that the right of the commissioning/surrogate mothers to avail maternity leave must be urgently incorporated through appropriate legislation, though various high courts have time and again solidified the said proposition through legal precedents.

“…But the provisions are silent in this regard. Hence, this is high time for the Government to bring appropriate Legislation in this regard for grant of maternity leave to the surrogate and commissioning mothers....”, the high court added while directing the registry to forward a copy of the pronounced order to the Ministry of Law and Justice as well as to the Principal Secretary, Department of Law and Legal Affairs, Rajasthan for appropriate action.

A commissioning mother is a woman who seeks to obtain a child through the rented womb of a surrogate mother. The High Court, after perusing the provisions of the Assisted Reproductive Technology (Regulations) Act, 2021, noted that a commissioning mother remains the biological mother of the child and retains all rights in respect of the child.

The crux of the arguments adopted by the state before the high court was to the effect that Rule 103 of Rajasthan Service Rules, 1951 does not contemplate granting maternity leave to a mother (commissioning mother) who has begotten a child through the surrogacy process. The word ‘maternity leave’ is not defined in the Service Rules of 1951.

After analysing the contention raised by the State, the court relied upon interpretations of ‘maternity benefits’ and ‘child’ mentioned in the Maternity Benefit Act, 1961 and various definitions of ‘maternity leave’ in the general parlance and as enunciated by courts of law over time. Afterwards, the court noted that the Government has already recognised surrogacy as an option for infertile couples to have a child of their own, through the Surrogacy (Regulation) Act, 2021.

“….Once the surrogacy has been recognized by the Legislature, by enacting the Act of 2021 and a female can now become mother through the procedure of surrogacy, then she cannot be denied the benefit of maternity leave, after birth of the child through surrogacy process…”, the court laid down in clear terms while making extensive references to various decisions that interpreted the term ‘maternity leave’.

References were made to the decisions in Devshree Bandhey v. Chhattisgarh State Power Holding Co.Ltd. & Ors. [2017] by the Chhattisgarh High Court, Rama Pandey v. Union of India & Ors. (2015) by the Delhi High Court, and Dr. Mrs.Hema Vijay Menon Vs. State of Maharasthra & Ors (2015) by the Bombay High Court. In these cases, it has been categorically held by the High Courts that a female employee who is the commissioning mother would be entitled to maternity leave just like an adoptive mother would be under the applicable rules and regulations.

“Right to life under Article 21 of the Constitution of India includes the right to motherhood and also the right of every child to full development. If the Government can provide maternity leave to an adoptive mother, it would be wholly improper to refuse to provide maternity leave to a mother who begets a child through the surrogacy procedure and as such, there cannot be any distinction between an adoptive mother who adopts a child and a mother who begets a child through surrogacy procedure…”, the court concluded while setting aside the impugned order by the state authorities.

The petitioner employee, who had begotten twins through the surrogacy process, applied for maternity leave of 180 days. This application was rejected by the state authorities on 23.06.2020 by citing that there is no corresponding provision in the Rajasthan Service Rules, 1951. This order was challenged in the current writ petition. In the court order, Justice Anoop Kumar Dhand has also instructed the state government to sanction the maternity leave and provide all consequential benefits to the petitioner within 3 months.

Case No: S.B. Civil Writ Petition No. 7853/2020

Case Title: Gayatri v. Maharaja Ganga Singh University & Ors

Read The Judgement Here