Source: Hindustan Times

Why in News?

The Rajasthan High Court has observed that when it comes to granting maternity leave, there is no distinction between a biological mother and a mother who has had a child through surrogacy.

What is the Background of the Case?

• The petitioner who had begotten twins through the surrogacy process, applied for maternity leave of 180 days.
• The application was rejected by the state authorities citing that there is no corresponding provision in the Rajasthan Service Rules, 1951.
• The present petition was filed challenging the above said order of the Rajasthan Government.
• The state's argument was that Rule 103 of Rajasthan Service Rules, 1951 does not envision the provision of maternity leave to a mother (commissioning mother) who has given birth to a child through the surrogacy process.
• Following an examination of the State's argument, the court leaned on interpretations of 'maternity benefits' and 'child' as outlined in the Maternity Benefit Act, 1961, along with diverse definitions of 'maternity leave' in common usage.
• Upon reviewing the provisions of the Assisted Reproductive Technology (Regulations) Act, 2021, the Rajasthan High Court (HC) observed that a commissioning mother is recognized as the biological mother of the child and retains full rights over the child.
  • A commissioning mother is a woman who seeks to obtain a child through the rented womb of a surrogate mother.
• The court further noted that the Government has already recognized surrogacy as an option for infertile couples to have a child of their own, through the Surrogacy (Regulation) Act, 2021.

What were the Court’s Observations?

• The Court took note of following cases:
  • Devshree Bandhey v. Chhattisgarh State Power Holding Co.Ltd. & Ors (2017), Chhattisgarh High Court
  • Rama Pandey v. Union of India & Ors. (2015), Delhi High Court
  • Dr. Mrs. Hema Vijay Menon Vs. State of Maharasthra & Ors (2015), Bombay High Court
    • In all three cases, it has been held by various HCs that a female employee who is the commissioning mother would be entitled to maternity leave just like an adoptive mother would be under the applicable rules and regulations.
• Justice Anoop Kumar Dhand has expressed the view that infants born through surrogacy should not be left in the care of others.
  • Instead, they need the love, care, protection, and attention of a mother during their early stages of life.
• The court further held that the right to life under Article 21 of the Constitution of India, 1950 includes the right to motherhood and also the right of every child to full development and hence the order of the state authority was set aside.

What are the Legal Provisions Involved?

Maternity Benefit Act, 1961

• It is an Indian legislation that aims to regulate the employment of women in certain establishments for a certain period before and after childbirth. Some key points are:
  • Applicability: The act applies to all establishments employing ten or more people, including factories, mines, plantations, shops, and other entities.
  • Benefit Period: A woman is entitled to maternity leave of 26 weeks, with the provision to extend it by an additional 4 weeks in case of medical complications or other specified circumstances.
  • Payment during Leave: The employer is required to pay the woman on maternity leave at the rate of her average daily wage for the period of her leave.
  • Medical Bonus: Employers are also required to provide a medical bonus to women who do not avail of the full maternity leave, as long as they have worked for a certain period preceding their pregnancy.
  • Prohibition of Dismissal: During the maternity leave period, it is illegal for employers to dismiss or discharge a woman or give notice of dismissal.
  • Creche Facilities: Establishments with 50 or more employees are required to provide creche facilities and allow women to visit the creche during working hours.

Assisted Reproductive Technology (Regulations) Act, 2021

• The act is aimed at regulation and supervision of the assisted reproductive technology clinics and the assisted reproductive technology banks, prevention of misuse, safe and ethical practice of assisted reproductive technology services for addressing the issues of reproductive health where assisted reproductive technology is required for becoming a parent or for freezing gametes, embryos, embryonic tissues for further use due to infertility, disease or social or medical concerns and for regulation and supervision of research and development and for matters connected therewith or incidental thereto.
• The act defines:
  • Infertility under Section 2(j) as the inability to conceive after one year of unprotected coitus or other proven medical condition preventing a couple from conception.
  • Commissioning couple under Section 2(e) as an infertile married couple who approach an assisted reproductive technology clinic or assisted reproductive technology bank to obtain the services authorised of the said clinic or bank.