Surrogate mothers have right to maternity leave: Rajasthan High Court

The Jaipur bench of the Rajasthan High Court on Wednesday held that maternity leaves cannot be denied to a mother who begets child through the process of surrogacy [Chanda Keswani vs State of Rajasthan]..Single-judge Justice Anoop Kumar Dhand ruled that a mother cannot be discriminated as far as maternity leave is concerned, only because she begot the child through the process of surrogacy.The Court said that denying maternity leaves to surrogate mothers would violate their right to life under Article 21 of the Constitution of India."Right to life under Article 21 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 Court held.It said that no distinction can be made by the State between a natural mother, a biological mother and a mother who has begotten a child through surrogacy. "Because the right to life contained under Article 21 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 is quite unjustified in denying maternity leave to the surrogate mother (the petitioner) for taking care of her twins born through surrogacy method. Making a difference between natural biological mother and surrogate/commissioning mother would amount to insult of motherhood," the Court opined.It further clarified that babies born through surrogacy cannot be left at the mercy of others since they infants need the love, care, protection and attention of mother during their infancy since the bond of love and affection develops between the mother and children during this period after birth."Motherhood is the mother of all civilizations. Family as a social institution is considered as the backbone of the society. No civilization could have passed without recognizing the power of mother and often figuratively projected her as Goddess. 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. .The order was passed on a plea filed by a woman who begot twins through the process of surrogacy. After the birth of the twins, the petitioner sought to avail the Maternity leaves as per the Rajasthan Service Rules, 1958.However, she was denied maternity leaves on the ground that there is no provision under the 1958 Rules to grant maternity leave to couple having children through surrogacy.While ordering the State authorities to grant the petitioner her 180 days maternity leaves, the bench noted that though courts across the country have held that there can be no discrimination in granting such leaves to biological or surrogate mothers. "Once, it has been held by the several High Courts of our Nation including this Court that there is no distinction between the natural, biological and surrogate or commissioning mothers and all of them have fundamental right to life and motherhood, contained under Article 21 and children born from the process of surrogacy have the right to life, care, protection, love, affection and development through their mother, then certainly such mothers have right to get maternity leave," the Court underscored.The Court, however, noted that the law was silent in this regard and hence urged the government to bring appropriate legislation. "Hence, 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," the judge recommended.It ordered the High Court Registry to forward the copy of the order to the Union Ministry of Law and Justice as well as to the Principal Secretary, Department of Law and Legal Affairs, Government of Rajasthan for action..Advocates Rajesh Kapoor and Harshad Kapoor appeared for the Petitioner.Additional Advocate General Dr V B Sharma represented the State..[Read Judgment]