In a landmark decision, the Orissa High Court has ruled that a woman who becomes a mother through surrogacy is entitled to maternity leave, recognizing the necessity of such leave for the healthy upbringing of a newborn. The Single Bench of Dr. Justice Sanjeeb Kumar Panigrahi granted judicial sanction to this vital right, emphasizing the benefit for both the woman and the child.
The Case
The petitioner, employed as the Joint Director (Accounts) at Gopabandhu Academy of Administration, applied for maternity leave from October 25, 2018, to April 22, 2019, after attaining motherhood through surrogacy on October 20, 2018. She also requested earned leave from April 23, 2019, to September 9, 2019, and resumed duty on September 10, 2019. Her leave applications were forwarded to the Finance Department for approval.
However, the Finance Department’s Under Secretary returned the application, questioning the validity of such leave under the current government servant leave rules, which did not explicitly cover surrogacy. This prompted the petitioner to approach the High Court.
Court’s Observations
The Court noted that Rule 194 of the Odisha Service Code allows 180 days of maternity leave for female employees, including those who adopt a child up to one year old. However, there was no provision for women who attain motherhood through surrogacy. Referencing the Rajasthan High Court’s decision in Smt. Chanda Keswani v. State of Rajasthan and the Bombay High Court’s ruling in Dr. Mrs. Hema Vijay Menon v. State of Maharashtra, the Court underscored that maternity leave should be granted to surrogacy mothers to ensure equal treatment and support.
Justice Panigrahi emphasized, “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 Court also cited the Supreme Court’s decision in Anuj Garg v. Hotel Association of India, highlighting the need to interpret laws in light of medical advancements and societal changes. Recognizing surrogacy as a legitimate means of parenthood aligns with India’s progressive stance on reproductive rights and gender equality.
Conclusion
The Court directed the State to grant 180 days of maternity leave to the petitioner and incorporate provisions in the Rules for maternity leave for commissioning mothers. This ensures equal treatment for children born through surrogacy and their mothers.
