Surrogate mothers have right to maternity leave: Rajasthan High Court
From the High Court of Judicature for Rajasthan, Bench at Jaipur, related to a civil writ petition (S.B. Civil Writ Petition No. 7853/2020). The petitioner, Smt. Chanda Keswani, is seeking maternity leave after having twins through the surrogacy process.
The key points highlighted in the order are:
Background and Quote: The document begins with a quote emphasizing the special bond between a mother and a child, highlighting the significance of motherhood in society.
Legal Issue: The main legal issue addressed in the petition is whether a distinction can be made by the State Government regarding maternity leave for a natural mother, a biological mother, and a mother who has obtained a child through surrogacy.
Factual Matrix: After the surrogacy process, the petitioner applied for maternity leave, but the State refused, stating that there is no provision for maternity leave for mothers who have children through surrogacy in the Rajasthan Service Rules, 1951.
Petitioner’s Arguments: The petitioner argues that with advancements in medical science and the recognition of surrogacy, the rules should be interpreted to include maternity leave for mothers who have children through surrogacy. The petitioner cites judgments from other High Courts in similar cases.
Respondent’s Arguments: The State argues that there is no provision in the Rules of 1951 for granting maternity leave to surrogate mothers, and, therefore, the petitioner is not entitled to it.
Legal Analysis: The court reviews Rule 103 of the Rules of 1951, which deals with maternity leave, and emphasizes the need for a broad and beneficial interpretation of maternity leave provisions.
Interpretation of Maternity Leave: The court discusses the concept of maternity leave and how it aims to protect the dignity of motherhood, considering the health of both the mother and the child.
Surrogacy Recognition: The court acknowledges the recognition of surrogacy in recent legislation, including the Surrogacy (Regulation) Act, 2021.
Judicial Precedents: The court refers to judgments from other High Courts (Delhi, Chhattisgarh, Bombay, and Himachal Pradesh) that granted maternity leave to commissioning mothers in surrogacy cases.
Conclusion: The court concludes that a female can become a mother through surrogacy, and she cannot be denied maternity leave. The court directs the respondents to grant maternity leave to the petitioner.
In essence, the court recognizes the evolving landscape of reproductive technology and surrogacy and interprets existing rules to ensure that commissioning mothers through surrogacy are entitled to maternity leave.
