LI Network
Published on: November 09, 2023 at 10:37 IST
In a significant ruling, the Jaipur bench of the Rajasthan High Court has affirmed that maternity leave cannot be denied to mothers who have children through surrogacy.
Justice Anoop Kumar Dhand, in a single-judge decision, declared that mothers who opt for surrogacy must not face discrimination when it comes to maternity leave.
The Court emphasized that denying maternity leave to surrogate mothers would infringe upon their right to life as enshrined in Article 21 of the Indian Constitution. It argued that the right to life includes the right to motherhood and the right of every child to full development.
The Court underlined that if the government provides maternity leave to an adoptive mother, it would be unjust to deny the same right to a mother who has a child through surrogacy.
The judgment stressed that there should be no distinction between a natural mother, a biological mother, and a mother who has children through surrogacy.
The Court expressed that making such distinctions would insult the concept of motherhood and highlighted the significance of the bond between a mother and her child during the early stages of infancy.
It explained that babies born through surrogacy need the love, care, protection, and attention of their mother during this crucial period of development.
The judgment was rendered in response to a plea filed by a woman who had twins through surrogacy. She sought maternity leave as per the Rajasthan Service Rules, 1958, but her request was initially denied due to the absence of provisions in the rules for granting maternity leave to couples with children through surrogacy.
The Court ordered the state authorities to provide the petitioner with her entitled 180 days of maternity leave. It emphasized that courts in India, including the Rajasthan High Court, have consistently held that there should be no discrimination in granting maternity leave to biological or surrogate mothers.
While issuing this significant ruling, the Court acknowledged that the law does not specifically address this matter and recommended that the government introduce appropriate legislation to address maternity leave for surrogate and commissioning mothers.
The Court directed the High Court Registry to forward a copy of the order to the Union Ministry of Law and Justice and the Principal Secretary of the Department of Law and Legal Affairs, Government of Rajasthan for necessary action.