Surrogate Mothers Entitled to Leave: HC

KOCHI (KERALA): Expressing concern over lack of rules and regulations on surrogacy, the Kerala High Court on Tuesday observed that there should not be any discrimination towards women who adopt the method while granting maternity leave and other benefits.

The court also observed that even in the absence of statutory frame work, surrogacy in India is not illegal. 

Justice Dama Seshadri Naidu issued the directive while on a petition filed by Geetha, Deputy General of Manager the Kerala Livestock Development Board, challenging her employer’s decision to decline her maternity leave to look after a baby obtained through surrogacy.

The Board rejected her request on the ground that the Board’s regulations did not allow providing leave to a woman employee who got a baby through surrogacy.

Counsel for the petitioner Thushara James submitted that maternity, either through biological process or through surrogacy is one of the same for all the intended benefits.

Motherhood does not end with a delivery of a baby, but continues, with more vigour, through the process of child-rearing, which is an equally difficult task.

The court said the petitioner was entitled to all post-delivery benefits sans the leave for improving the health of the mother after delivery.

Child specific statutory benefits, if any, could be extended to the petitioner. She is eligible for two breaks of the prescribed duration for nursing the child until the child attains the age of 15 months.

The petitioner also contended that motherhood was an integral part of womanhood and with the advanced assisted reproduction techniques in place, one could not cling to the traditional meaning of the maternity.

Sumathi Dandapani, counsel for the Board, submitted that the petitioner went on leave with an excuse that she has to take care of a newborn and cited the staff rule which stated that maternity leave need not be provided in the case of surrogacy.

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