Maternity leave for a Woman having a Child through Surrogacy

Surrogacy

In a ground breaking Judgement the Delhi High Court came to a judgement that a woman, who is a government Employee and having a child through surrogacy, is also eligible to maternity leave. In its direction, the court said that refusal of leave would be injurious to both baby and mother.  Justice Rajiv Shakdher in his judgement said that denying maternity leave to only where a female employee herself carries a baby would be turning an unseeing eye to the improvement that science has made.

Authorizing mother is the Legal mother

In its 31 page conclusion, the court supposed that where a surrogacy procedure is in place, the commissioning mother / intending parent will come to remain the legal mother of the child both during and after the pregnancy (gestation). Further it said that, maternity should be proven vis-a-vis the commissioning mother, once the child is considered even though in a womb other than that of the authorizing mother.

The commissioning (authorizing) mother’s entitlement to maternity leave cannot be deprived of only on the ground that she did not carry the child. A commissioning mother is entitled to maternity leave as she “desires to bond with the child and at times take over the part of a breast-feeding mother immediately after delivery of the child.”

Background:

The court ending came on the request of a woman (government servant) who had twins through surrogacy route; she was left without maternity leave on ground that she was not eligible as she not carried the babies to term herself. Later, she was acceptable to take maternity leave under rules which afford for maternity leave when a child is adopted.

Delhi High Court’s judgement came nearly 6 months after a related outcome of Kerala High Court. Kerala High Court in its decree held that the relief allowed was limited to an employee of a state government department. But Delhi High Court’s decision may advantage to all government employees across India, as it takes to mean requirements of a Central law.

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