Mothers of Surrogate Babies entitled for Maternity Leave

In a recent case of Rama Pandey vs. Union of India & ORS, a Central Government female employee, who became mother of twins by way of surrogacy pregnancy, was denied 180-day maternity leave on the ground that she wasn’t the biological mother. The female employee was asked to seek permission of the Central Civil Services under Rule 43 of the Central Civil Services (Leave) Rules, 1972.

The female employee approached the Delhi High Court to seek relief vide a Writ Petition under Article 226 of the Constitution. The female employee stated that her position as a commissioning mother is similar to that of a biological mother who bears and carries the child till delivery. However the Centre in its defense stated that that there is no provision for grant of maternity leave to female employees, who took recourse to the surrogacy route for procreating a child. Further stated that if such leave is granted to the commissioning mother, it could set a precedent in future to a single male or female parent or to same sex parents who may take recourse to surrogacy

The Delhi High Court ruled in favour of the female employee stating that those who have children through surrogacy are entitled to maternity leave which includes pre- and post-natal period and that the commissioning mother is the legal mother of the child..

The High Court observed that the word “maternity” as appearing in government rules – with advancement of science and technology – should be given a meaning which includes within it the concept of motherhood attained via the surrogacy route. The High Court in furtherance its observation laid down guidelines to streamline the policies for maternity benefit policy for surrogate mothers.

The Guidelines framed are as under:-

  1. A female employee, who is the commissioning mother, would be entitled to apply for maternity leave under sub-rule (1) of Rule 43 of the Central Civil Services (Leave) Rules, 1972.
  2. The competent authority based on material placed before it would decide on the timing and the period for which maternity leave ought to be granted to a commissioning mother who adopts the surrogacy route.
  3. The scrutiny would be keener and detailed, when leave is sought by a female employee, who is the commissioning mother, at the pre-natal stage. In case maternity leave is declined at the pre-natal stage, the competent authority would pass a reasoned order having regard to the material, if any, placed before it, by the female employee, who seeks to avail maternity leave. In a situation where both the commissioning mother and the surrogate mother are employees, who are otherwise eligible for leave (one on the ground that she is a commissioning mother and the other on the ground that she is the pregnant women), a suitable adjustment would be made by the competent authority.
  4. In so far as grant of leave qua post-natal period is concerned, the competent authority would ordinarily grant such leave except where there are substantial reasons for declining a request made in that behalf. In this case as well, the competent authority will pass a reasoned order.