Can’t deny maternity leave to woman if she’s mother through surrogacy: HC

Kullu teacher moves Himachal Pradesh high court after leave request rejected; HC says to distinguish between mother who begets a child through surrogacy and a natural mother would result in insulting womanhood

A woman employee cannot be denied maternity leave even if she has become a mother through surrogacy, the Himachal Pradesh high court has held in an order passed on Thursday.

The court observed that a woman contractual or ad hoc employee is entitled to maternity leave on a par with a regular woman employee on grounds of fair play and social justice and there cannot be any discrimination. (Representative photo)

A division bench, comprising justice Tarlok Singh Chauhan and justice Sandeep Sharma, passed these orders on the petition filed by a woman language teacher working on contract in Kullu district.

She became a mother on September 9, 2020, through surrogacy but when she applied for maternity leave, her application was rejected.

Hearing her petition, the court observed that it’s no longer res integra (a case without a precedent) that a woman contractual or ad hoc employee is entitled to maternity leave on a par with a regular woman employee on grounds of fair play and social justice and there cannot be any discrimination.

The court further observed that once the respondents admit that the minor child is that of the petitioner, then she is entitled to the leave akin to others who are granted leave in terms of the leave rules.

‘Motherhood doesn’t end at birth of child’

“Even in the case of adoption, the adoptive mother does not give birth to the child, yet the necessity of bonding of the mother with the child has been recognised by the central government,” the court said.

To distinguish between a mother who begets a child through surrogacy and a natural mother, would result in insulting womanhood and the intention of a woman to bring up a child begotten through surrogacy, the court added.

It said that motherhood never ends on the birth of the child and a commissioning mother cannot be refused paid maternity leave. A woman cannot be discriminated against, as far as maternity benefits are concerned, only on the ground that she has obtained the baby through surrogacy. A newborn cannot be left at the mercy of others as it needs rearing and that is the most crucial period during which the child requires care and attention of his mother.

Creating bond of affection between mother and child

The Bench also referred to Article 42 of the Constitution, which provides that the state shall make provision for securing just and humane conditions of work and for maternity relief as it was long felt that working women were unable to depute their time towards their children due to exigencies of service.

Hence, the concept of grant of childcare leave was introduced to ensure the welfare of the child to enable the mother to avail leave whenever she feels that the child needs the care, said the court.

It said that maternity leave is provided for creating a bond of affection between the two.