HP HC | Whether a contractual woman employee is entitled to avail maternity leave in case of a surrogate child? HC analyses

Himachal Pradesh High Court: A Division Bench of Tarlok Singh Chauhan and Sandeep Sharma JJ. allowed the petition.

The facts of the case are such that the petitioner joined as a Language Teacher on a contract basis and is currently posted at Government Senior Secondary School, Showad, District Kullu. The petitioner was blessed with a baby on 10.09.2020 through surrogacy treatment from Fortis La Femme Hospital. The petitioner had applied for maternity leave to the Principal, Government Senior Secondary School, Showad, District Kullu( respondent No.4), who in turn forwarded the same to 3rd respondent i.e. Deputy Director, Higher Education, Kullu, seeking clarification as to whether the petitioner is entitled for maternity leave on surrogacy. However, no action whatsoever was taken on the application of the petitioner, constraining her to file the instant petition, seeking therein a direction to the respondents to sanction/grant the maternity leave to the petitioner.

Counsel for the respondent Mr. Ashok Sharma, Mr. Vikas Rathore, Mr. Vinod Thakur, Mr. Shiv Pal Manhans, Mr. Bhupinder Thakur and  Mr. Yudhbir Singh Thakur submitted that the only ground taken for non grant of the leave was that as per Notification of H.P. Government issued vide Finance Department dated 21.12.2017, maternity leave is admissible on adoption of a child as per Rule 43(1) of CCS (Leave) Rules 1972 for 180 days, but there is no clarification in the said notification regarding admissibility of maternity leave to a female Government employee on surrogacy.

The Court relied on judgment Baby Manji Yamada v. Union of India, (2008) 13 SCC 518 to define surrogacy as

“8. Surrogacy is a well known method of reproduction whereby a woman agrees to become pregnant for the purpose of gestating and giving birth to a child she will not raise but hand over to a contracted party. She may be the child’s genetic mother (the more traditional form for surrogacy) or she may be, as a gestational carrier, carry the pregnancy to delivery after having been implanted with an embryo. In some cases surrogacy is the only available option for parents who wish to have a child that is biologically related to them.”

The Court further relied on judgment State of H.P. v. Sudesh Kumari, 2014 SCC Online HP 4844, and observed that a female contractual employee/adhoc employee is entitled to maternity leave at par with the female regular employee.

The Court further relied on judgment Rama Pandey v. Union of India, 2015 SCC Online Del 10484 and observed that the commissioning mother’s entitlement to maternity leave cannot be denied only on the ground that she did not bear the child.

The Court relied on judgment Hema Vijay Menon v. State of Maharashtra, 2015 SCC OnLine Bom 6127 and in view of the decision rendered by Chhattisgarh High Court in Devshree Bandhe v. Chhattisgarh State Power Holding Company Limited, 2017 Labour Industrial Cases 1506 / WPS No. 101/2017] observed that the working women were unable to depute their time towards their children due to exigencies of service. Hence, the concept of grant of child care leave was introduced to ensure the welfare of the child so as to enable the mother to avail child care leave whenever she feels that the child needs the care. This is in tune with the international covenants and treaties to which India is a signatory.

It was also observed that the object of maternity leave is to protect the dignity of motherhood by providing for full and healthy maintenance to the woman and her child. Maternity leave is intended to achieve the object of ensuring social justice to women. Motherhood and childhood both require special attention. Not only are the health issues of the mother and the child considered while providing for maternity leave, but the leave is provided for creating a bond of affection between the two.

The Court stated that “to distinguish between a mother who begets a child through surrogacy and a natural mother, who gives birth to a child, would result in insulting womanhood and the intention of a woman to bring up a child begotten through surrogacy. Motherhood never ends on the birth of the child and a commissioning mother 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. A newly born child 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. The tremendous amount of learning that takes place in the first year of the baby’s life, the baby learns a lot too. A bond of affection has also to be developed.”

The Court thus held that “the respondents are directed to sanction/grant maternity leave to the petitioner in terms of Rule 43(1) of the CCS (Leave) Rules, 1972.”

In view of the above, petition was allowed.[Sushma Devi v. State of Himachal Pradesh, 2021 SCC OnLine HP 416, decided on 04-03-2021]


Arunima Bose, Editorial Assistant has reported this brief.

One comment

  • Thanks for sharing this informative blog. Looking forward to more blogs.

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