Bom HC | A mother cannot be discriminated on ground that she obtained baby through surrogacy; Commissioning mother held entitled for maternity leave

Bombay High Court: A Division Bench of Pradeep Nandrajog, CJ and N.M. Jamdar, J. allowed a writ petition filed by a commissioning mother of a surrogate child and held that she was entitled to maternity leave.

Unable to bear a second child, the petitioner along with her husband, chose the route of surrogacy. The surrogate mother gave birth to a baby girl on 5-11-2012. With reference to the expected date of delivery, the petitioner sought maternity leave to take care of the surrogate child. The same was denied to her on the ground that the Leave Rules and the policy governing the Rules did not permit maternity leave for a surrogate child.

The petitioner challenged the said denial by way of the present petition. She was represented by Nikhilesh Pote, Advocate. While, M.M. Pabale, Additional Government Pleader, appeared for the State.

The High Court was of the opinion that the issue was no longer res Integra. It was noted that in Hema Vijay Menon v. State of Maharashtra2015 SCC OnLine Bom 6127, the Bombay High Court relying on the decision of the Delhi High Court in Rama Pandey v. Union of India, 2015 SCC OnLine Del 10484, had held that even in case of birth by surrogacy, the parents who have lent the ova and the sperm would be entitled to avail leave. The mother being entitled to maternity leave and the father paternity leave.

Notably, in Hema Vijay Menon, the Bombay High Court observed: “A commissioning mother like the petitioner would have the same rights and obligations towards the child as the natural mother. Motherhood never ends on the birth of the child and a commissioning mother like the petitioner cannot be refused paid maternity leave. A woman cannot be discriminated, as far as 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 secured hands of the petitioner as soon as it was born. A newly born child cannot be left at the mercy of others. Maternity leave to the commissioning mother like the petitioner would be necessary. A newly born child needs the attention of the 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. Also, the bond of affection has to be developed. A mother, as already stated hereinabove, 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.

Following the said decision, the Court held that the petitioner was entitled to maternity leave for the child born through surrogacy. It was ordered that various leaves availed of by the petitioner be converted to maternity leave as prayed for by the petitioner.[Pooja Jignesh Doshi v. State of Maharashtra, 2019 SCC OnLine Bom 1433, decided on 03-07-2019]

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