Surrogate Woman Entitled To Maternity Leave Benefits, To Distinguish Between A Surrogate Mother And Natural Mother Would Result In Insulting Womanhood:Himachal HC

The Himachal Pradesh High Court on Thursday observed that a surrogate woman, getting child through arrangement by surrogate parents, is entitled to avail maternity leave benefits under Rule 43(1) of CCS (Leave) Rules, 1972.

Observing thus, the Court also opined that it would be "an insult to womanhood" to distinguish between a mother who begets a child through surrogacy and a natural mother who gives birth to a child.

The observation came from a division bench comprising of Justice Tarlok Singh Chauhan and Justice Sandeep Sharma while considering a petition filed by a surrogate mother seeking maternity leave benefits.

The bench observed thus:

"Motherhood never ends on the birth of the child and a commissioning mother cannot be refused paid maternity leave. A woman cannot be discriminated, as far as maternity benefits are concerned, only on the ground that she has obtained the baby through surrogacy. A newly born child cannot be left at the mercy of others as it needs rearing and that is the most crucial period during which the child requires care and attention of his mother. The tremendous amount of learning that takes place in the first year of the baby's life, the baby learns a lot too. A bond of affection has also to be developed."

The petitioner was working as a language teacher on a contractual basis posted at a Government school in Kullu district. She was blessed with a baby on 10th September 2020 through a surrogacy treatment.

In view of the same, she had applied for maternity leave to the Principal of the Government School who in turn forwarded her application to Deputy Director of Higher Education, Kullu seeking a clarification as to whether the petitioner being a surrogate mother, is entitled for maternity leave on surrogacy.

The High Court while analyzing the judgments on the subject of surrogacy at length, relied on the case of Baby Manju Yamada v. Union of India & Anr. (2008) 13 SCC 518 wherein the Apex Court observed various forms of surrogacy including traditional, gestational, altruistic and commercial surrogacy.

While referring to the Rule 43 of CCS (Leave) Rules providing for Maternity Leave, the Court observed thus:

"Once, the respondents admit that the minor child is that of the petitioner, then she is entitled to the leave akin to the persons, who are granted leave in terms of the rules (ibid). The purpose of the said rules is for proper bonding between the child and parents."

Reliance was also made to a Bombay High Court judgment in Dr. Hema Vijay Menon v. State of Maharashtra & Ors. AIR 2005 Bom 231 wherein the Court observed that "If Maternity means motherhood, it would not be proper to distinguish between a natural and biological mother and a mother who has begotten a child through surrogacy or has adopted a child from the date of his/ her birth. The object of maternity leave is to protect the dignity of motherhood by providing for full and healthy maintenance of the woman and her child. Maternity leave is intended to achieve the object of ensuring social justice to women."

Observing the constitutional mandate under Art. 42 which provides that the State shall make provision for securing just and humane conditions of work and for maternity relief, the High Court went ahead to observe:

"It was long felt that the working women were unable to depute their time towards their children due to exigencies of service. Hence, the concept of grant of child care leave was introduced to ensure the welfare of the child so as to enable the mother to avail child care leave whenever she feels that the child needs the care. This is in tune with the international covenants and treaties to which India is a signatory."

Therefore, the High Court allowed the petition and directed the respondent authorities to sanction/grant maternity leave to the petitioner under the CCS (Leave) Rules, 1972.

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