Rajasthan High Court: In a writ petition filed under Article 226 of the Constitution, Anoop Kumar Dhand, J. opined that a mother could not be discriminated, as far as maternity leave was concerned, only because she had begotten the child through the process of surrogacy. Newly born babies through this process could not be left at the mercy of others. The bond of love and affection develops between the mother and children during the period after birth, as these infants needed love, care, protection and attention of mother during the early crucial time after their birth. Thus, the Court set aside the impugned order and directed the respondent to sanction 180 days maternity leave to the petitioner.
Background
In the instant case, after following the process of surrogacy, the petitioner had begotten twins and thereafter, she applied for the maternity leave before the State authorities. However, the State refused to grant the same to the petitioner vide impugned order dated 23-06-2020, stating that there was no provision under the Rajasthan Service Rules, 1951 (‘1951 Rules’) for grant of maternity leave to the mother, who got children through the process of surrogacy.
Thus, aggrieved by the impugned order dated 23-06-2020, the petitioner filed the present writ petition under Article 226 of the Constitution.
Analysis, Law and Decision
The Court opined that the word ‘maternity leave’ was not defined under the 1951 Rules, but Rule 103 of the 1951 Rules, indicated that the maternity leave might be granted to a female Government servant for a period of 180 days twice. The Court opined that prior to the substitution of Rule 103 to the 1951 Rules, there was a provision of granting maternity benefits under the Maternity Benefit Act, 1961 (‘1961 Act’) to the women before and after the child-birth who were employed in certain establishment for certain period. As per Section 3(b) of the 1961 Act, child included still-born child, but nowhere the words mother and child were defined under 1951 Rules or 1961 Act.
The Court opined that a female could 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 was also an option for a female or couple to have their child. The provision related to the grant of maternity benefits was a beneficial provision intended to achieve social justice and therefore it must be construed beneficially.
The Court opined that the maternity meant the period during pregnancy and shortly after the child’s birth and if the maternity meant motherhood, it would not be proper to distinguish between a natural and biological mother and mother who had begotten a child through surrogacy. The Court opined that the “object of maternity leave is to protect the dignity of motherhood by providing for full and healthy maintenance of the woman and her child. Maternity leave is intended to achieve the object of ensuring social justice to women as the 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 opined that surrogacy was a blessing for infertile couples and a woman who carried a baby in her womb for others by transfer of embryo or gametes created using the intended parents was called surrogacy. Surrogacy had been proclaimed in India from ancient times and it was known as ‘Niyoya Dharma’. The Court opined that once the surrogacy had been recognized by the legislature by enacting the Surrogacy (Regulation) Act, 2021 and a female could now become mother through the procedure of surrogacy, then she could not be denied the benefit of maternity leave, after birth of the child through surrogacy process.
The Court relied on Dev Shree B Andhey v. Chhattisgarh State Power Holding Co. Ltd., 2017 SCC OnLine Chh 1763; Sadhna Agrawal v. State of Chhattisgarh, 2017 SCC OnLine Chh 19; Rama Pandey v. Union of India, 2015 SCC OnLine Del 10484; Hema Vijay Menon v. State of Maharashtra, 2015 SCC OnLine Bom 6127 and Sushma Devi v. State of Himachal Pradesh, 2021 SCC OnLine HP 416 and opined that right to life under Article 21 of the Constitution included the right to motherhood and also, the right of every child to full development. If the Government could provide maternity leave to an adoptive mother, it would be wholly improper to refuse to provide maternity leave to a mother who had begotten a child through surrogacy procedure after implanting an embryo created by using either the eggs or sperm of the intended parents in the womb of surrogate mother.
The Court relied on P. Geetha v. Kerala Livestock Development Board Ltd., 2015 SCC OnLine Ker 71 and opined that it was ipso facto clear that no distinction could be made by the State Government to a natural mother, a biological mother and a mother who had begotten a child through surrogacy method. Right to life contained under Article 21 of the Constitution included the right of motherhood and also, the right of the child to get love, bond of affection and full care and attention.
The Court opined that the State’s action was unjustified in denying maternity leave to the petitioner who was a surrogate mother for taking care of her twins born through surrogacy method. Creating a distinction between natural biological mother and surrogate or commissioning mother would amount to insult of motherhood.
The Court further opined that “a mother cannot be discriminated, as far as maternity leave is concerned, only because she begot the child through the process of surrogacy. 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, as the bond of love and affection develops between the mother and children during this period after birth.”
Thus, the Court quashed and set aside the impugned order dated 23-06-2020 and directed the respondents to sanction 180 days maternity leave to the petitioner, within three months from 08-11-2023. The Court further stated that once it had been held by several High Courts that there was no distinction between the natural, biological, surrogate or commission mothers and all of them had the fundamental right to life and motherhood contained under Article 21 of the Constitution, and children from the process of surrogacy had the right to life, care, protection, and development their mother, then, certainly such mothers had the right to get maternity leave for above purpose, however, the provisions were silent in this regard.
Thus, the Court opined that it was high time for Government to bring appropriate legislation for the grant of maternity leave to the surrogate and commissioning mothers and directed the Registry that the copy of the present order might be forwarded to the Ministry of Law and Justice, Union of India and to the Principal Secretary, Department of Law and Legal Affairs, Government of Rajasthan, for such action as, they might deem fit to take in this behalf.
[Chanda Keswani v. State of Rajasthan, 2023 SCC OnLine Raj 3274, Order dated 08-11-2023]
Advocates who appeared in this case :
For the Petitioner: Rajesh Kapoor with Harshad Kapoor, Advocate;
For the Respondents: V.B. Sharma, Additional Advocate General.
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