The high court has held that once the legislature regulates surrogacy by allowing females to become mothers, neither the surrogate mother nor the commissioning mother could be denied the benefit of maternity leave.
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THE High Court of Rajasthan has held that denying maternity leave to a commissioning mother who had twins through surrogacy is unjustified and amounts to an "insult to motherhood".
The court held that the commissioning or surrogate mother cannot be discriminated against by the biological mother for seeking maternity benefits.
On November 8, Justice Anoop Kumar Dhand in his Order stated: "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".
The Rajasthan state authorities rejected the petitioner's maternity leave on the grounds that Rule 103 of the Rajasthan Service Rules, 1951 (as amended up to May 2007) provides no provision to grant maternity leave to mothers who have children through the process of surrogacy.
While commercial surrogacy is banned in India, the Surrogacy (Regulation) Act, 2021 regulates altruistic surrogacy.
Under the Assisted Reproductive Technology (Regulations) Act, 2021, an infertile married couple who approaches an assisted reproductive technology clinic or bank for the purpose of bearing a child through surrogacy, is referred to as a 'commissioning couple'.
A harmonious reading of both legislation suggests that the commissioning mother is considered to be the biological mother of the child and retains all rights in respect of the child.
As per Rule 103, a female government servant with less than two surviving children is eligible for maternity leave for a period of 135 days. During such period, she will be entitled to leave salary equal to pay drawn immediately before proceeding on leave.
Thus the petition under Article 226 seeking relief from the high court.
The counsel for the petition argued that although there is no explicit provision for providing maternity leave to a commissioning mother, the Delhi High Court has extended the benefit to commissioning mothers.
In Rama Pandey versus Union of India & Ors (2015), the Delhi High Court granted maternity leave to a mother whose children were born through the surrogacy process. In this case, the high court extended service benefits to the mother as well by expanding the interpretation of the term 'maternity leave' under Rule 43 of the Central Civil Services (Leave) Rules, 1973.
In Smt. Chanda Keswani versus State of Rajasthan, Justice Dhand granted maternity leave to the petitioner for 180 days.
The high court reasoned that the provision relating to maternity benefits is a beneficial provision which intends to achieve social justice. Therefore, it must be construed beneficially.
The court said: "A female can become a mother not only by giving birth to a child but also by adopting a child and now with the development of medical science, surrogacy is also an option for a female or couple to have their children."
The court stated that the object of the maternity leave is to protect the dignity of motherhood by providing for the full and healthy maintenance of the woman and children.
Further, the court stated that the right to life under Article 21 of the Constitution includes the right to motherhood and also the right to every child's full development.
"If the government can provide maternity leave to an adoptive mother, it would be wholly improper to refuse to provide maternity leave to a mother who begets a child through the surrogacy procedure," the high court held.
Lastly, the court ordered the government to bring appropriate legislation for the grant of maternity leave to the surrogate and commissioning mothers.