Challenging the railway communication rejecting her application, the woman argued that if the maternity leave was refused, it would certainly violate the right of a child to develop a bond with the mother and would also not be compatible in the society.
A Central Railway (CR) employee, who recently had a child through surrogacy, enjoys the same benefits of maternity leave as any other working woman, under the Child Adoption Leave and Rules, the Bombay High Court has ruled.
A division bench of justices Anoop Mohta and G S Kulkarni, while directing the railways to grant 180-day maternity leave to the complainant, said, "There is nothing in the rules that dis-entitles maternity leave to a woman who has attained motherhood through surrogacy procedure."
The woman, who works as a nurse at the Dr Babasaheb Ambedkar Hospital in Byculla, had approached the court after the railways refused to grant her leave on the grounds that there were no rules under the leave rules of Railways that would allow such a leave.
In her petition filed through advocates Sandeep Shinde and Tanya Goswami, the woman said she got married in 2004 but could not conceive for a long period. In 2012, she decided to go for surrogacy. Accordingly, an agreement was entered into with a surrogate. When the surrogate mother completed 33 weeks of pregnancy, the petitioner applied for a maternity leave but her application was rejected.
Challenging the railway communication rejecting her application, the woman argued that if the maternity leave was refused, it would certainly violate the right of a child to develop a bond with the mother and would also not be compatible in the society.
Reliance was also placed on a recent judgment of the Nagpur bench of the Bombay High court, in which it was said, "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 mother 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."
Accordingly, by way of interim relief, the bench directed the railways to grant maternity leave to the woman.
What is surrogacy?
Surrogacy is a form of assisted reproductive technology (ART) adopted by couples who are unable to conceive a baby for various reasons. It is an arrangement where a woman lends her womb as a surrogate mother for the embryo of the commissioning parents. The surrogate mother carries pregnancy, which is genetically unrelated to her, and develops the embryo in
her womb till the delivery of a full-grown child. The child is thereafter handed over to the genetic parents.
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