Bombay High Court: Deciding the question that arose for consideration of the Court as to whether a biological mother upon giving birth to a child in execution of an agreement of surrogacy is entitled to seek leave under the maternity leave rules, the Division Bench of Anoop V. Mohta and G.S. Kulkarni, JJ as an interim relief, directed the grant of maternity leave to the petitioner who had obtained motherhood through surrogacy.
The Court categorically observed “Having considered even Rules 551(C) and (E) of the Child Adoption Leave and Rules*, we find that a case is made out for grant of interim relief in terms of prayer clause (b) as there is nothing in Rules 551(C) and (E) as referred above, which would disentitle maternity leave to a women who has attained motherhood through surrogacy procedure.”
Relying upon a Division Bench judgment of the Bombay High Court in Dr. Hema Vijay Menon v. State of Maharashtra, 2015 SCC OnLine Bom 6127 wherein it was observed in para 7:
“7. … A woman cannot be discriminated as far as maternity benefits are concerned, only on the ground that she has obtained the baby through surrogacy. Though the petitioner did not give birth to the child, the child was placed in the secured hands of the petitioner as soon as it was born. A newly born child cannot be left at the mercy of others. A maternity leave to the commissioning mother like the petitioner would be necessary. A newly born child needs rearing and that is the most crucial period during which the child requires the care and attention of his mother. There is a tremendous amount of learning that takes place in the first year of the baby’s life, the baby learns a lot too. Also the bond of affection has to be developed. A mother, as already stated herein above would include a commissioning mother or a mother securing a child through surrogacy. Any other interpretation would result in frustrating the object of providing maternity leave to a mother who has begotten the child.”
The case is now posted for disposal on March 11, 2016. [Amisha Girish Ramchandani v. Divisional Manager (Personnel Branch) Mumbai CST, 2016 SCC OnLine Bom 71, order dated January 29, 2016]
*Ed.: The Indian Railway Establishment Code (Vol.1) contain the rules governing general conditions of service applicable to Railway servants. Chapter 5 deals with the Leave Rules called the Railway Services (Liberalised Leave) Rules, 1949 of which Rule 551 deals with maternity leave, Rule 551(C) deals with Child Adoption Leave and Rule 551(E) is with reference to Child Care Leave. http://www.indianrailways.gov.in/railwayboard/uploads/codesmanual/est-code-I/estbl-vol1-chap5-p41-p57.htm#551
