A woman having a child through surrogacy is entitled to maternity leave: Delhi HC

Delhi High Court on 17 July 2015 ruled that a woman, who is in government service and has a child through surrogacy, is also entitled to maternity leave. In its direction, the court said that denial of leave would be detrimental to both mother and child.  

Justice Rajiv Shakdher in his judgement said that confining maternity leave to only where a female employee herself carries a child would be turning a blind eye to the advancement that science has made.

The court in its verdict said that the word maternity would also cover a situation where a female employee engages services of another woman to conceive a child with or without the genetic material being supplied by her and/or her male partner.

The court also said that non-provision of leave to a commissioning mother, who is an employee, would, be in derogation of the stated Directive Principles of State Policy as contained in the Constitution.

Commissioning mother is the Legal mother
In its 31-page verdict, the court said that where a surrogacy arrangement is in place, the commissioning mother will continue to remain the legal mother of the child, both during and after the pregnancy. Further it said that, maternity should be established vis-a-vis the commissioning mother, once the child is conceived, albeit in a womb, other than that of the commissioning mother.

The commissioning mother's entitlement to maternity leave cannot be denied only on the ground that she did not bear the child. A commissioning mother is entitled to maternity leave as she "needs to bond with the child and at times take over the role of a breast-feeding mother, immediately after delivery of the child.”

Background
The court verdict came on the plea of a woman (a government servant), who had twins through surrogacy route. She was denied maternity leave on ground that she was not eligible as she not carried the babies to term herself. Later she was allowed to take maternity leave under rules which provide for maternity leave when a child is adopted.
 
Delhi High Court’s verdict came nearly six months after a similar verdict of Kerala High Court. Kerala High Court in its verdict held that the relief granted was limited to an employee of a state government department. But Delhi High Court’s decision may benefit all government employees across India, as it interpreted provisions of a Central law.

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