Author: Himanshu Gupta is a 3rd year B.A., LL. B (Hons.) student at NMIMS School of Law, Mumbai. INTRODUCTION
The rights of surrogate mothers under labour laws have been a subject of perpetual debate and a never-ending struggle for them. One such fight is their struggle to avail of maternity leave/benefits under the Maternity Benefits Act, 1961 (“1961 Act”) in the postnatal phase. While the 1961 Act and various State Rules are completely silent upon recognizing this right of surrogate mothers, it is the Courts where their hope lies in the pursuit of justice. In this regard, the Rajasthan High Court in the case of Chanda Keswani v. State of Rajasthan (“Keswani”) followed the progressive stance taken by various other High Courts of India previously and granted maternity leave to a surrogate mother.
The High Court categorically held that “there is no distinction between the natural, biological and surrogate or commissioning mothers and all of them have fundamental right to life and motherhood, contained under Article 21 of the Constitution of India and children born from the process of surrogacy have the right to life, care, protection, love, affection and development through their mother, then certainly such mothers have right to get maternity leave for above purpose.”
The aforesaid judgement poses an important question as to the status of surrogate mothers in terms of their right to maternity leave. The Court further called for specific legislation for surrogates and commissioning mothers in this regard.
The author of this article attempts to trace the legal position of surrogate mothers under the 1961 Act and also attempts to compare the provision of India with other countries. The author further argues that surrogate mothers should be recognized under the 1961 Act with reference to laws of various international jurisdictions including the USA, Australia, New Zealand and Canada.
BRIEF BACKGROUND
The petitioner in the present case was married to her husband in 2007 and since the couple was not having any issue from the wedlock, the petitioner along with her husband decided to have children through the process of surrogacy. The process of surrogacy was done and twin children were born out of it.
The case arose out of an application made by the petitioner to the State authorities for granting maternity leave to take care of her children. The State declined her application for grant of leave on the ground that the provisions under the Rajasthan Service Rules, 1951 (“1951 rules”) are silent for grant of maternity leave to the mother, who got children through the process of surrogacy. Thus, the petitioner approached the Hon’ble Rajasthan High Court by way of a writ petition under Article 226 of the Indian Constitution challenging the order of the State of declining her leave application.
The petitioner argued that the Rajasthan Services Rules was enacted in 1951 and at that time there was no such procedure as surrogacy. However, as a result of development in medical sciences parents can now adopt to alternative procedures such as surrogacy. Citing examples of similar rules in Delhi and Maharashtra, the petitioner further argued that the Delhi High Court and the Bombay High Court in Rama Pandey vs. Union of India & Ors. and, Dr. Ms. Pooja Jignesh Doshi vs. The State of Maharashtra & Anr respectively have granted maternity leaves to the surrogative mother.
On the other hand, the respondent placed reliance on Rule 103 of the 1951 rules and argued that it is silent on the grant of such maternity leave and hence the request put forth by the petitioner should be declined.
The High Court while endorsing the progressive nature of medical sciences held that a woman can become a mother through various means including surrogacy. The Court further held that the laws relating to maternity leave are beneficial provisions and must be construed beneficially to impart social justice.
Interpreting Rule 74 of the 1951 rules, the Court further opined “We do not find anything in Rule 74 which disentitles the petitioner to maternity leave, like any other female government servant, only because she has attained motherhood through the route of surrogacy procedure.” Hence, the Court granted maternity leave to the petitioner for the child born through surrogacy.
POSITION OF SURROGATE MOTHERS IN INDIA
The Keswani case is yet another achievement for surrogate mothers as it tries to establish an equitable ground based on which maternity benefits can be availed in the absence of specific legislation. The 1961 Act which is the principal legislation for maternity benefits in India entitles all women employees up to a maximum of twelve weeks paid leave that is, six weeks up to and including the day of her delivery and six weeks immediately following that day on fulfilment of certain conditions provided under the Act.
The question that needs attention is who can be a ‘mother’ for the purpose of the 1961 Act as the term ‘mother’ is not defined in the Act. At this juncture, it becomes imperative to address whether surrogates can be treated as mothers and will be entitled to the benefits of this Act. In the absence of legislation providing maternity benefits to surrogate mothers, reliance should be placed on various judicial pronouncements in this regard.
For instance in the case of K. Kalaiselvi Vs. Chennai Port Trust, the High Court of Madras while interpreting Rule 3A of the Madras Port Trust (Leave) Regulation, 1987 held that the rule should be interpreted to include a child born out of surrogacy procedure and thus provided maternity benefits to the surrogate mother.
Further, the High Court of Chhattisgarh in the case of Smt. Sadhana Agrawal Vs. State of Chhattisgarh held that there exists no difference between a biological mother, a natural mother and a mother who has begotten a child by surrogacy procedure. The State by treating them differently violates their right to life prescribed under Article 21 of the Indian Constitution which includes the right to motherhood and the right to every child to full development. Hence, the State Government is unjustified in denying maternity leave to the mother who has begotten children by way of surrogacy procedure. The Court further held that the petitioner (who was the intended mother of the child) should be treated as a ‘mother with newborn babies’ and therefore is entitled to all the benefits of the postnatal phase with effect from the date of birth of children.
Furthermore, in the case of Pratibha Himral v. State of Himachal Pradesh, the Himachal Pradesh High Court while explaining the reasoning behind the grant of maternity leave opined there exist two major factors behind the grant of maternity leave, one is the health issues of the mother and the child and other is the crucial period for creating a bond of affection between the two. The Court further held that to differentiate between a mother who begets a child through adoption and a natural mother, who gives birth to a child, would result in insulting womanhood. Motherhood never ceases with the birth of the child, and a commissioning mother cannot be refused paid maternity leave.
Thus, it can be very well construed that maternity leave is granted to a woman not only for her mental or physical needs but for a greater purpose which is to build a bond between the mother and the child. Hence, in these circumstances, a bond between a surrogate mother and the child is equally important and thus maternity leave should be extended to surrogate mothers as well.
INTERNATIONAL PERSPECTIVE: WHAT IS IN FOR INDIA?
Article 11 of the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) of which India is a signatory states that all state parties should take appropriate measures and grant the right to paid leave from work to women employees.
Further, Article 25(2) of the Universal Declaration of Human Rights states that “Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.” Thus, emphasizing the importance of early mother-child relations.
These international frameworks underscore the need for analysing the legal position of maternity leave in different jurisdictions. For instance, in the United States of America, the Family and Medical Leave Act, 1993 (“FMLA”) governs the provision for maternity leave. The FMLA grants 12 work-weeks of unpaid leave after the birth of the child and to care for the newborn child within one year of birth. The FMLA further provides 12 weeks leave to mothers to bond with the newly born child after a surrogate gives birth to it.
The position in Australia with regard to maternity leave is governed under the Paid Parental Leave Act, 2010. The Australian Paid Parental Leave Rule, 2021 grants paid maternity leave to both, the mother giving birth and the gaining parent of the child born out of surrogacy. Hence, recognizing the rights of surrogate mothers and respecting the bonding period between the child and the mother.
In the case of New Zealand, the Parental Leave and Employment Protection Act, 1987 governs the provision for maternity leave. A female employee is entitled to a maximum of fourteen weeks’ maternity leave from the date of the delivery. “In a surrogacy situation, both the birth mother and the new primary carer are fully entitled to primary carer leave and parental leave payments (if they meet the eligibility criteria). The birth mother’s entitlements do not end when she hands over care of the child”.
Furthermore, the position in Canada is also liberal in nature wherein surrogate mothers are entitled to maternity leaves upon birth of the child.
CONCLUDING REMARKS
Article 42 of the Indian Constitution directs the State to make provisions to secure humane working conditions and maternity leave. The need for maternity leave was felt long back by the makers of the Indian Constitution and hence its importance cannot be underestimated. Denial of maternity leave to surrogate mothers can have dire consequences as the Hon’ble High Court has linked maternity leave with Article 21 of the Indian Constitution in the Keswani case itself.
It can be construed that in the absence of specific legislation and ambiguity surrounding the word ‘mother’ in the 1961 Act, various Courts of the country have adopted a modern and liberal approach and granted maternity benefits to surrogate mothers. These decisions have promoted equality and raised hope in female employees who are unable to procreate without assisted reproductive techniques.
International standards respect and give equal treatment to surrogate and birth mothers and thus, India should imbibe these Western principles and acknowledge the rights of surrogate mothers and stand true to the ideals postulated by the Constitution.
The landmark ruling of the Supreme Court of California in Anna Johnson Vs. Mark Calvert which paved the way towards the development of surrogacy cannot be overlooked. The Court while upholding the decision of the lower Court held that genetic parents are the natural parents of the child gestated through a surrogate. Henceforth, it is the intending mother who deserves space to build a bond with the child. The state must strive to grant maternity leave and benefits to a mother who has begotten a child through surrogacy.
With the slow increase in female workforce participation in India, judgements like the Keswani case come as a ray of hope to the women intending to work. An overhaul to the existing position of law should reflect as a positive move safeguarding the female labour force and thus motivating more females to join the workforce. To conclude, it seems an opportune moment for the Indian legislatures to revisit its position on leave policies and surrogacy which has also been emphasized by the High Court in the Keswani case.
Comments