The Hon’ble Himachal Pradesh HC on 04th Mach, 2021 remarked that a surrogate woman, getting a child through arrangement by surrogate parents, is entitled to benefit maternity leave under Rule 43(1) of Central Civil Services (Leave) Rules, 1972 (hereinafter referred as “CCS”).
The Hon’ble HC Witnessing and pronounced that “it would be an insult to womanhood to make a distinction between a mother who delivers the child through surrogacy and a natural mother who gives birth to a child”
The observation came from the Hon’ble division bench while looking into the petition led by a surrogate mother seeking maternity leave benefits.
The Hon’ble bench is of the view “Motherhood never ends after delivering the child and a commissioning mother cannot be denied to paid maternity leave. A woman cannot be distinguished, as far as maternity benefits are concerned, on the basis that she has obtained the baby through surrogacy. A newly born child cannot be left at the mercy of others as it needs nurturing and that is the most critical period during which the child needs the care and attention of his mother.”
The petitioner was employed as a language teacher on a contractual basis posted at a Government school. She was blessed with a baby all through surrogacy treatment. Given the same, the petitioner had applied for maternity leave to the Principal of the School who in turn forwarded her request to the Deputy Director of Higher Education seeking clarification if the petitioner being a surrogate mother, is eligible for maternity leave on surrogacy.
The Hon’ble HC while examining the subject of surrogacy at length, relied on the judgment delivered by the Hon’ble Apex Court, wherein the Hon’ble Court noted various forms of surrogacy including traditional, gestational, altruistic, and commercial surrogacy.
While referring to the Rule 43 of CCS (Leave) Rules, 1972 on Maternity Leave, the Hon’ble Court observed Purpose of Adoption under section 7 of Hindu Adoption and Maintenance Act “Once, the defendants admits that the child born is that of the petitioner, then the petitioner is entitled to the leave.”
The Hon’ble HC also mentioned that the very object of “maternity leave is to protect the dignity of motherhood by providing healthy maintenance of the woman and her child. Maternity leave is aimed to achieve the object of ensuring social justice to women.”
The Hon’ble HC after observing the constitutional mandate under Article. 42 of the Constitution of India which provides “that the State shall make provision for securing just and humane conditions of work and for maternity relief”, the Hon’ble High Court went ahead to determine that “It was long felt that the working women were unable to provide enough time to their children due to necessities of service. Therefore, the notion of the grant of child care leave was incorporated to safeguard the wellbeing of the child 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 conventions and treaties to which India is a signatory.”
Consequently, the Hon’ble HC approved the petition and directed the defendant government department to sanction/grant maternity leave to the surrogate mother under the CCS (Leave) Rules, 1972.
Case: Sushma Devi vs. State of Himachal Pradesh and others
Citation: CWP No.4509 of 2020.
Coram: Hon’ble Mr. Justice Tarlok Singh Chauhan, Hon’ble Mr. Justice Sandeep Sharma.
Counsel: Mr. Kush Sharma, Advocate vice Mr. Raj Negi, Advocate. Mr. Ashok Sharma, Advocate General with Mr. Vikas Rathore, Mr. Vinod Thakur, Mr. Shiv Pal Manhans, Additional Advocate Generals, Mr. Bhupinder Thakur and Mr. Yudhbir Singh Thakur, Deputy Advocate Generals.
