Surrogacy no bar for maternity leave, Court says

The judge said the purpose of the rule on maternity leave was to allow for bonding between the child and its parents

A mother who has had a child through surrogacy cannot be treated differently from an adoptive mother, the Madras High Court has ruled.

Coming to the aid of a Chennai Port Trust official who had a baby through surrogate procedure, and who sought maternity leave, the High Court directed the Port to grant her leave as is given for adoptive mothers.

Justice K. Chandru said he did not find anything immoral or unethical about the petitioner having a child through a surrogate arrangement. For all practical purposes, the petitioner is the girl child’s mother and her husband is its father, he said.

The petitioner is entitled to leave akin to persons granted leave under Rule 3-A of the Madras Port Trust (Leave) Regulations. The Judge also directed the authorities to include the child’s name in the family medical insurance card.

The petitioner said she had put in 24 years of service at the Port Trust. Her son died in a road accident on January 31, 2009, when he was 20. After her son’s birth, she underwent uterus removal due to some problems.

In order to have a child later, she entered into an arrangement with a hospital here for surrogacy. Under the procedure, a girl child was born on February 8, 2011. To take care of the child, she applied for maternity leave. But she was informed that she was not entitled to the leave for having a surrogate child.

She was granted two months’ leave as a special case in September 2011 but it was subsequently cancelled. Her request to include the newborn in the family medical insurance card was also rejected.

She challenged the rejection of the leave and sought a consequential direction to grant her leave under Rule 3-A of the Madras Port Trust (Leave) Regulations, which is applied in the case of adoptive parents.

Justice Chandru said the purpose of the rule was to allow for bonding between the child and parents. Even in the case of an adoption, the adoptive mother does not give birth to the child, yet the necessity of bonding between the mother and child had been recognised by the Centre. Therefore, the petitioner was entitled for leave in terms of Rule 3-A, he said.

The Judge made a reference to the All India Services (Leave) Rules, wherein the Centre had recognised paternity leave too. Child care leave was given to a woman member of the service.