Biological mother who has obtained the baby through surrogacy can claim the post-delivery maternity leave to take care of the new born

Kerala High Court: Dealing with an urgent issue as to whether a ‘biological mother’ is entitled to the maternity leave in a case where she has obtained the baby through surrogacy, a bench of D.S. Naidu J. gave a landmark judgment in favour of the genetic/biological mother. The Court held that a mother who has obtained the baby through surrogacy is entitled to all the benefits an employee could have on post-delivery, i.e. the child specific statutory benefits.

In the instant case, the respondents refused to grant maternity leave to the petitioner (an employee in the Government of Kerala undertaking) to take care of the new born on the ground that the Kerala Livestock Development Board Ltd Rules and Regulations, 1993 only provide maternity leave envisaged under ‘normal circumstances’. The learned Counsel for the petitioner Dr. Thushara James contended that “motherhood does not end with the delivery of a baby, but continues, with more vigour, through the process of child rearing, which is an equally difficult task”. The Counsel also referred various international treaty obligations and conventions to which India is signatory and contended that “when the municipal law is silent, the international covenants and treaties can be made applicable”. She further contended that “provision of the Maternity Benefit Act, 1961 does not maintain any distinction between maternity by way of natural process and by way of ART”. The learned Senior Counsel for the respondent Sumathi Dhandapani contended that “in the face of its own Regulations having statutory force, it is not bound by the provisions of the Maternity Benefit Act. Rule 50 of the Staff Rules and Regulations does not provide for leave in the case of surrogacy”.

The Court examined the statutory scheme of the Maternity Benefit Act, 1961 and noted that “there cannot be any discrimination regarding the genetic mother in extending the statutory benefits to the extent they are applicable”. The Court also examined the international treaties and conventions and noted that “welfare of the child shall be the primary consideration”. The Court went through the decision of Madras High Court in Kalaiselvi v. Chennai Port of Trust 2013 SCC OnLine Mad 811, where it was held that a women employee was entitled to avail ‘child care leave’ even in case where she got a child through an arrangement of surrogacy, and held that “though the petitioner has not undergone any pre-natal phase, however, from the day one, after the delivery , the petitioner is required to be treated as the mother with the new born, and thus without discrimination, the petitioner is entitled to all the benefits that accrue to an employee after the delivery”. P. Geetha v. The Kerala Livestock Development Board Ltd., 2015 SCC OnLine Ker 71, decided on 06-01-2015.

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