Maternity Leave Should Be Granted To Employees Who Become Mothers Through Surrogacy: Orissa High Court

The Orissa High Court held that the maternity leave should be granted to employees who become mothers via surrogacy to ensure equal treatment and support for all new mothers.

The Court held thus in a writ petition filed by a female employee working in Orissa Finance Service, challenging the Finance Department Letter.

A Single Bench of Justice S.K. Panigrahi observed, “Maternity leave should be granted to employees who become mothers through surrogacy to ensure equal treatment and support for all new mothers, irrespective of how they become parents. Additionally, the initial period after the birth of a child is crucial for the mother's involvement in caregiving and nurturing, which is pivotal for the child's development.”

The Bench said that if the Government could provide maternity leave to an adoptive mother, it would be wholly improper to refuse to provide maternity leave to a mother who had begotten a child through surrogacy procedure after implanting an embryo created by using either the eggs or sperm of the intended parents in the womb of surrogate mother.

Senior Advocate D.P. Nanda appeared on behalf of the petitioner while AGA D. Mund appeared on behalf of the opposite parties.

Facts of the Case -

The petitioner started her career by joining Orissa Finance Service in 1995 vide appointment letter of the State Government, Finance Department and served in different departments of the State. Presently, she was functioning as the Financial Advisor of Odisha State Police Housing Welfare Corporation. After considerable time of the marriage, she failed to conceive a child and hence, she opted for surrogate motherhood. Accordingly, she entered into a Gestational Surrogacy Agreement along with her husband as “Commissioning Parents” with a woman as “Surrogated Mother” in 2018. The aforesaid surrogate mother conceived the child who took birth in October 2018. It was submitted by the petitioner that since there was no female member in the family to look after the new born baby, so she applied for maternity leave which was granted from October 2018 to April 2019.

Subsequently, in continuation to the maternity leave, she applied for Earned Leave of 140 days from April-September 2019. The Finance Department allowed her to draw her pay as admissible during the period of leave and further passed an order that the period of leave is counted as ‘Nil’ towards increment under Rule-79(a)(i) of the Orissa Service Code and also directed that such period will not be debited to her leave account. It was informed to her that so far as the motherhood of female govt. employee is concerned, the term ‘Maternity’ was not defined in Odisha Service Code i.e., by way of surrogacy or rent-a-womb. Hence, it was stated that sanction of maternity leave to a surrogate mother is not available due to non-existence of specific provision for the same. Being aggrieved by such decision, the petitioner approached the High Court.

The High Court in the above context of the case noted, “… right to life under Article 21 of the Constitution includes the right to motherhood and also, the right of every child to full development. … Recognizing and supporting surrogacy as a legitimate means of becoming a parent aligns with India's progressive stance on reproductive rights and gender equality.”

The Court added that providing maternity leave for surrogate mothers ensures that they have the necessary time to create a stable and loving environment for their child, promoting the well-being of both the mother and the child.

“It is well settled law that the rules and regulations in force should be interpreted in light of advancements in medical science and changes in societal conditions. … It is imperative that the provisions concerning maternity benefits are structured to encourage and support women's participation in the workforce”, it said.

Furthermore, the Court observed that the Maternity Benefit Act, 1961, which aims to protect the employment of women during maternity and ensure their full health, should be interpreted in an inclusive manner that encompasses all forms of motherhood.

“Additionally, international conventions to which India is a signatory, such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), mandate equal treatment and non-discrimination in matters related to employment and maternity”, it also noted.

Accordingly, the High Court allowed the writ petition, quashed the impugned letter, and directed the State to sanction 180 days’ maternity leave to the petitioner within three months.

Cause Title- Supriya Jena v. State of Odisha & Ors.

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