Surrogate Mothers Have Right To Get Maternity Leave ; Denying It Is Insult To Motherhood: : Rajasthan HC
The Rajasthan High Court held that surrogate mothers also have right to get maternity leave and denying it is insult to motherhood.
The Jaipur Bench of the High Court said that if the government provides maternity leave to adoptive mother, then it would be improper to refuse the same to surrogate mother.
The Court held thus in a writ petition filed under Article 226 of the Constitution by a woman who was aggrieved by the order of the State denying her maternity leave benefits.
A Single Bench of Justice Anoop Kumar Dhand observed, “Right to life under Article 21 of the Constitution of India includes the right to motherhood and also the right of every child to full development. If the Government can provide maternity leave to an adoptive mother, it would be wholly improper to refuse to provide maternity leave to a mother who begets a child through the surrogacy procedure and as such, there cannot be any distinction between an adoptive mother who adopts a child and a mother who begets 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 the surrogate mother.”
The Bench said that motherhood is the mother of all civilizations and family as a social institution is considered as the backbone of the society. It added by saying that no civilisation could have passed without recognising the power of mother and often figuratively projected her as Goddess.
“Mother is she who can take place of all others, but whose place no one else can take”, remarked the Court.
Advocate Rajesh Kapoor appeared on behalf of the petitioner while Additional Advocate General V.B. Sharma appeared on behalf of the respondents.
In this case, the issues involved in the petition were:
- Whether any distinction can be made by the State Government to a natural mother, a biological mother and a mother who has begotten a child by surrogacy procedure?
- Whether a surrogate mother/commissioning mother can be deprived to get maternity leave?
- Whether denying maternity leave to surrogate mother amounts to violation of right to life under Article 21 of the Constitution of India?
- Whether the right to life includes the right to motherhood and also the right of every child to full development?
In this case, after following the process of surrogacy, the petitioner had begotten twins and she applied before the State authorities for getting maternity leave for taking care of the newly born babies. However, the State refused to grant the same to the petitioner vide an order indicating therein that there was no provision under the Rajasthan Service Rules, 1951 (for short “the Rules of 1951”) for grant of maternity leave to the mother, who got children through the process of surrogacy. Being aggrieved by this, the petitioner was before the Court.
The High Court in the aforesaid context of the case noted, “The bond between mother and her child is special one. It remains unchanged by time or distance. It is the purest love-unconditional and true. It is understanding of any situation and forgiving any kind of mistakes. …. A child born to a family sees the world first through the eyes of his/her mother and develops his/her skills through the vision of the family.”
The Court said that a female can become mother not only by giving birth to a child but also by adopting a child and now with the development of medical science, surrogacy is also an option for a female or couple to have their child.
“The provision relating to grant of maternity benefits is a beneficial provision, which is intended to achieve the social justice and therefore, it must be construed beneficially. … Maternity means the period during pregnancy and shortly after the child's birth. If maternity means motherhood, it would not be proper to distinguish between a natural and biological mother and a mother who has begotten a child through surrogacy. The object of maternity leave is to protect the dignity of motherhood by providing for full and healthy maintenance of the woman and her child”, the Court emphasised.
The Court further noted that maternity leave is intended to achieve the object of ensuring social justice to women as the motherhood and childhood both require special attention and that not only are the health issues of the mother and the child considered while providing for maternity leave but the leave is provided for creating a bond of affection between the two.
“Surrogacy is a blessing for infertile couples. A woman carrying a baby in her womb for others by transfer of embryo or gametes created using the intended parents is called surrogacy. It has been proclaimed in India from ancient times and it was known by the terms ‘Niyoya Dharma’. The ancient history of our country indicates that several great heroes were born through surrogacy. Surrogacy has been recognized by the Government now, that is why the Surrogacy (Regulation) Act, 2021 (for short ‘the Act of 2021’) has been enacted which deals with the provisions of regularization of surrogacy and surrogacy procedures”, also said the Court.
The Court held that once the surrogacy has been recognized by the Legislature, by enacting the Act of 2021 and a female can now become mother through the procedure of surrogacy, then she cannot be denied the benefit of maternity leave, after birth of the child through surrogacy process.
The Court ruled that no distinction can be made by the State Government to a natural mother, a biological mother and a mother who has begotten a child through surrogacy method.
“… the right to life contained under Article 21 of the Constitution of India includes the right of motherhood and the right of the child to get love, bond of affection and full care and attention. Therefore, the action of the State-respondent is quite unjustified in denying maternity leave to the surrogate mother (the petitioner) for taking care of her twins born through surrogacy method”, observed the Court.
The Court said that making a difference between natural biological mother and surrogate/commissioning mother would amount to the insult of motherhood. It added that newly born babies through this process cannot be left at the mercy of others, as these infants need love, care, protection, and attention of mother during the early crucial time after their birth i.e., infancy, as the bond of love and affection develops between the mother and children during this period after birth.
“… this is high time for the Government to bring appropriate Legislation in this regard for grant of maternity leave to the surrogate and commissioning mothers”, concluded the Court.
Accordingly, the High Court disposed of the applications.
Cause Title- Smt. Chanda Keswani v. State of Rajasthan & Anr. (Neutral Citation: 2023:RJ-JP:33972)
