No bias against a mother over maternity leave: Rajasthan HC | Latest News India - Hindustan Times
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No bias against a mother over maternity leave: Rajasthan HC

ByDinesh Bothra , Jodhpur
Nov 09, 2023 05:54 AM IST

The Rajasthan high court has ruled that maternity leave must be granted to women who have children through surrogacy, stating that any distinction between different types of mothers is an "insult" to motherhood. The court ordered the state to grant the petitioner 180 days of maternity leave and to enact legislation for maternity leave for surrogate and commissioning mothers. The court argued that the right to motherhood is protected under Article 21 of the Constitution of India and that newborn babies born through surrogacy need the love, care, and protection of their mother during the early crucial period after birth.

Maternity leave must be granted to take care of a child born through surrogacy, the Rajasthan high court said on Wednesday, underlining that any distinction made between a natural mother, a biological mother, and a surrogate mother is an “insult” to motherhood.

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The court was hearing a plea by a surrogate mother, who gave birth to twins, whose maternity leave application the Rajasthan government denied, arguing that the Rajasthan Service Rules, 1951, did not provide for maternity leave for women who have children through surrogacy.

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“A mother cannot be discriminated, as far as maternity leave is concerned, only because she begot the child through the process of surrogacy,” said a single-judge bench of justice Anoop Kumar Dhandh, ordering the state to grant the petitioner 180 days of maternity leave and to enact appropriate legislation for maternity leave for surrogate and commissioning mothers.

“Right to life under Article 21 of the Constitution of India includes the right to motherhood and also the right of every child to full development. If the government can provide maternity leave to an adoptive mother, it is difficult to digest the refusal on the part of the Government to provide maternity leave to a mother who begets a child through the surrogacy procedure,” added the court.

The national law on maternity leaves – the Maternity Benefit Act, 1961 – entitles women to six months, or 26 weeks, of paid maternity leave for their first two children and three months for subsequent children.

“No distinction can be made by the state government to a natural mother, a biological mother and a mother who has begotten a child through surrogacy method,” said the Rajasthan high court in its order.

“Newly born babies through this process cannot be left at the mercy of others, as these infants need love, care, protection and attention of mother during the early crucial time after their birth i.e. infancy, as the bond of love and affection develops between the mother and children during this period after birth,” it added.

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