Women staff having surrogacy child to get maternity leave: Himachal Pradesh HC

A Division Bench of Justices Tarlok Singh Chauhan and Sandeep Sharma passed the order on the petition filed of teacher Sushma Devi of Kullu district, who is working on contract and blessed with a baby on September 10, 2020 through surrogacy.

She applied for maternity leave, but no action was taken on her application.

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

"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 adopted child has been recognised by the Central government," the court said.

It observed that Article 42 of the Constitution provides the state shall make provision for securing just and humane conditions of work and for maternity relief and it was long felt that the 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 so as to enable the mother to avail childcare leave whenever she feels that the child needs the care.

The judges also observed not only the health issues of the mother and the child are considered while providing for maternity leave, but the leave is provided for creating a bond of affection between the two.

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 takes place in the first year of the baby's life and a bond of affection has also to be developed," added the judges.