Shimla: The High Court, in its landmark decision, has ruled that a woman employee on a contract basis is entitled to avail maternity leave even in case she gets the child through surrogacy.

The Division Bench comprising of Justice Tarlok Singh Chauhan and Justice Sandeep Sharma passed these orders on the petition filed by a woman Language Teacher, of District Kullu, who is working on a contract basis and who was blessed with a baby in September 2020 through surrogacy.

She had applied for maternity leave, but no action was taken on her application.

While hearing the petition, the Court observed

“it is no longer res integra that a female contractual employee/adhoc employee is entitled to maternity leave at par with female regular employee on the grounds of fair play and social Justice and there cannot be any discrimination.”

The Court further observed that “once the respondents admit that the minor child is that of petitioner, then she is entitled to the leave akin to the persons, who are granted leave in terms of the leave rules.” The Court said that even, in the case of adoption the adoptive mother does not give birth to the child, yet the necessity of bonding of the mother with the adopted child has been recognized by the Central Government.

Bahra University

The Court also observed that Article 42 of the Constitution of India provides that the State shall make provision for securing just and humane conditions of work and for maternity relief and it was long felt that the working women were unable to depute their time towards their children due to exigencies of service. Hence, the concept of a grant of child care leave was introduced to ensure the welfare of the child so as to enable the mother to avail child care leave whenever she feels that the child needs the care, the bench further ruled.

The Court also observed that not only the health issues of the mother and the child are considered while providing for maternity leave, but the leave is provided for creating a bond of affection between the two. To distinguish between a mother who begets a child through surrogacy and a natural mother, who gives birth to a child, would result in insulting womanhood and the intention of a woman to bring up a child begotten through surrogacy.

Motherhood never ends on the birth of the child and a commissioning mother cannot be refused paid maternity leave. A woman cannot be discriminated, as far as maternity benefits are concerned, only on the ground that she has obtained the baby through surrogacy. A newly born child cannot be left at the mercy of others as it needs rearing and that is the most crucial period during which the child requires care and attention of his mother. The tremendous amount of learning takes place in the first year of the baby’s life and a bond of affection has also to be developed.

Disposing of the petition, the Court directed the State to sanction maternity leave to the petitioner in terms of Rule 43(1) of the CCS(Leave) Rules, 1972.