Mothers of Surrogate Babies entitled for Maternity Leave: Delhi High Court

NEW DELHI: In a landmark verdict the Delhi high court on Friday ruled that surrogate mothers who have children through surrogacy are entitled to maternity leave which includes pre- and post-natal period.

Justice Rajiv Shakdher’s judgment came on the plea of a central government female employee who became mother of twins by way of surrogacy pregnancy but was denied 180-day maternity leave on the ground she wasn’t the biological mother.

Reasoning that the commissioning mother is the legal mother of the child, HC laid down guidelines and filled a vaccum in law since the Centre or state governments have no maternity benefit policy for surrogate mothers.

“A female employee, who is the commissioning mother, would be entitled to apply for maternity leave under sub-rule (1) of Rule 43. The competent authority based on material placed before it would decide on the timing and the period for which maternity leave ought to be granted to a commissioning mother who adopts the surrogacy route,” Justice Shakdher noted in his order.

Delhi HC’s ruling comes nearly six months after a verdict along similar lines by the Kerala HC. However while the relief granted then was limited to an employee of a state government department, Friday’s judgment will benefit all government employees across the country since the court has interpreted provisions of a Central law.

Justice Shakdher observed that “there appears to be an inertia in recognizing that motherhood can be attained even via surrogacy” and reminded the government that “a commissioning mother needs to bond with the child and at times take over the role of a breast-feeding mother, immediately after the delivery of the child.”

He added that “in sum, the commissioning mother would become the principal care giver upon the birth of child; notwithstanding the fact that child in a given situation is bottle-fed. Undoubtedly, the fact that the surrogate mother carried the pregnancy to full term, involved physiological changes to her body, which were not experienced by the commissioning mother but, from this, could one possibly conclude that her emotional involvement was any less if, not more than the surrogate mother?’

Faced with a petition filed by an employee of Kendriya Vidyalaya Sangathan in Delhi, the Centre took the stand in HC that there is no provision for grant of maternity leave to female employees, who took recourse to the surrogacy route for procreating a child. It also expressed fears that if such leave is granted to the commissioning mother, it could set a precedent in future to a single male or female parent or to same sex parents who may take recourse to surrogacy.

In her plea one Rama told the court that her position as a commissioning mother is similar to that of a biological mother who bears and carries the child till delivery.

HC agreed, observing that the word “maternity” as appearing in government rules – with advancement of science and technology – should be given a meaning which includes within it the concept of motherhood attained via the surrogacy route.