Women having child by surrogacy entitled to maternity leave: Delhi HC

A woman who is in government service and has a child through surrogacy, is also entitled to maternity leave, the Delhi High Court ruled on Friday holding that denial of leave would be detrimental to both mother and child.

Justice Rajiv Shakdher said that confining maternity leave to only where a female employee herself carries a child, "would be turning a blind eye to the advancement that science has made". The court also said that the word ''maternity'' would also cover a situation where a female employee engages services of another woman to conceive a child with or without the genetic material being supplied by her and/or her male partner.

The court arrived at this ruling while partially agreeing with the Centre's argument that the word maternity can be attributed to only those female employees, who conceive and carry the child during pregnancy.

"In my view, the argument is partially correct, for the reason that the word maternity pertains to the character, condition, relation or state of a mother. In my opinion, where a surrogacy arrangement is in place, the commissioning mother continues to remain the legal mother of the child, both during and after the pregnancy.

"Therefore, according to me, maternity is established vis-a-vis the commissioning mother, once the child is conceived, albeit in a womb, other than that of the commissioning mother," the judge said. "It follows thus, to my mind, that the commissioning mother''s entitlement to maternity leave cannot be denied only on the ground that she did not bear the child.

"This is dehors (other than) the fact that a commissioning mother may require to be at the bedside of the surrogate mother, in a given situation, even at the pre-natal stage," he added.