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Woman becoming mother through surrogacy entitled to leave: HC


Mumbai : A woman who has attained motherhood through a surrogacy procedure is entitled to six months maternity leave like any other woman, the Bombay High Court has ruled.

“Having considered rules 551(C) and(E) of Child Adoption Leave and Rules, we find that a case is made out for grant of interim relief as there is nothing in these rules which would disentitle maternity leave to a woman who has attained motherhood through surrogacy procedure,” a bench of Justices Anoop Mohta and G S Kulkarni said in their order delivered on January 29.

Accordingly, the judges, granting interim relief, asked the Central Railway (CR) to grant 180 days maternity leave to its woman employee, who had filed the petition challenging the decision of authorities to reject her leave application.

The HC, while asking the Central Railway to grant petitioner maternity leave, posted the matter for disposal on March 11.

The petitioner had approached the HC after the CR refused to give her maternity leave on the ground that there was no provision in the rules to grant such leave in case of surrogacy mothers.

The petitioner got married in 2004 and for a long time she could not conceive a child. Hence, she decided to go in for the surrogacy procedure. Accordingly, an agreement was signed with a surrogate mother.

When the surrogate mother completed 33 weeks of pregnancy, the petitioner applied for maternity leave, but her application was rejected by the CR. Being aggrieved, she moved the High Court.

Counsels for the petitioner, Sandeep Shinde and Tanya Goswami, argued that if maternity leave was refused to the petitioner, it would violate the right of the child to develop a bond with the mother and would also not be compatible in society.

The lawyers referred to a judgement of a Nagpur bench of the Bombay High Court which, in a similar case, said “a woman cannot be discriminated as far as the maternity benefits are concerned, only on the ground that she has obtained the baby through surrogacy.

“Though the petitioner did not give birth to the child, the child was placed in the secure hands of the petitioner as soon as it (child) was born. A newly born child cannot be left at the mercy of others,” the judgement said.

“A maternity leave to the commissioning mother like the petitioner would be necessary. A newly born child needs rearing and that is the most crucial period during which the child requires the care and attention of his mother. There is a tremendous amount of learning that takes place in the first year of the baby’s life, the baby learns a lot too,” the judgement of the High Court further said.

In the Nagpur bench judgement, the HC had observed that a mother would include a commissioning mother or a mother securing a child through surrogacy.

“Any other interpretation would result in frustrating the object of providing maternity leave to a mother who has begotten the child,” it said.

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