Orissa High Court: In an application under Articles and of the , regarding the maternity benefits to a mother who had begotten her child through process of surrogacy, Dr. S.K. Panigrahi, J. allowed the application and held that if the Government could provide maternity leave to an adoptive mother, it would be wholly improper to refuse to provide maternity leave to commissioning mother. Hence, the Court held that maternity leave should be granted to female employees who become mothers through surrogacy to ensure equal treatment and support for all new mothers, irrespective of how they become parents.
Factual Matrix
The petitioner joined the Orissa Finance Service and served in different departments of the State. Presently she was functioning as the Financial Advisor of State Police Housing Welfare Corporation, Bhubaneswar. The petitioner’s case was that she was unable to conceive a child, so she opted for surrogate motherhood and accordingly entered into a Gestational Surrogacy Agreement along with her husband as “Commissioning Parents” with a “Surrogated Mother” on 30-01-2018. The surrogate mother delivered the child on 25-10-2018. It was submitted that since there were no female members in her family to look after the new-born baby and after much prolonged waiting the petitioner could became a mother through surrogacy, so the petitioner applied for maternity leave on 20-10-2018 which was granted from dated 25-10-2018 to 22-04-2019. Subsequently, in continuation to the Maternity leave, on 10-04-2019 she applied for earned leave of 140 days from 23-04-2019 to 09-09-2019.
When the petitioner joined on 10-09-2019, the Joint Commissioner, Gopabandhu Academy granted maternity leave of the petitioner for a period of 180 days i.e. w.e.f. 25-10-2018 to 22-04-2019 as per Finance Department office Memorandums and allowed her to draw her pay as admissible during the period of leave. The Under-Secretary to the Government intimated that the entire leave period of petitioner i.e. from 25-10-2018 to 09-09-2019 with reference to extant leave Rules may be examined and if necessary, the proposal for sanction of leave for the said period may be re-submitted to the Finance Department and accordingly Service Book along with leave application of the petitioner were returned back for taking further action.
Analysis and Decision
The Court reiterated that maternity leave of a female Government employee is governed by Rule 194 of Odisha Service Code read with Finance Department Office Memorandum (‘FDOM’) No. 51856/F dated 07-12-2011 in which Rule- 194(b) was modified enhancing the existing limit of maternity leave of 90 days to 180 days. Regarding the motherhood through adoption for a female Government employee, FDOM. No.31056/F dated 18-11-2016 is available where a leave of 180 days is granted to female employee on adoption of a child upto one year of age in line with maternity leave as admissible to natural mothers for proper care of adopted child. However, there is no provision of maternity leave for the purpose of rearing of child blessed through surrogacy.
The Court referred Chanda Keswani v. State of Rajasthan, wherein, it was opined that the word ‘maternity leave’ was not defined under the Rajasthan Service 1951, but Rule 103 of the 1951 Rules, indicated that the maternity leave might be granted to a female Government servant for a period of 180 days twice and nowhere the words mother and child were defined under 1951 Rules or . The Court opined that a female could become a mother not only by giving birth to a child but also by adopting a child and now with the development of medical science, especially by the Assisted Reproductive Technology (ART), surrogacy was also an option for a female or couple to have their child. The Court stated that the provision related to the grant of maternity benefits was a beneficial provision intended to achieve social justice and therefore it must be construed beneficially.
The Court said that right to life under Article of the includes the right to motherhood and also, the right of every child to full development. Hence, if the Government could provide maternity leave to an adoptive mother, it would be wholly improper to refuse to provide maternity leave to a mother who had begotten a child through surrogacy after implanting an embryo created by using either the eggs or sperm of the intended parents in the womb of surrogate mother. Thus, the Court held that maternity leave should be granted to employees who become mothers through surrogacy to ensure equal treatment and support for all new mothers, irrespective of how they become parents. The Court observed that the initial period after the birth of a child is crucial for the mother’s involvement in caregiving and nurturing, which is pivotal for the child’s development and providing maternity leave for these mothers ensures that they have the necessary time to create a stable and loving environment for their child, promoting the well-being of both the mother and the child.
Placing reliance upon Anuj Gang v. Hotel Association of India , the Court reiterated that the rules and regulations in force should be interpreted in light of advancements in medical science and changes in societal conditions and it is imperative that the provisions concerning maternity benefits are structured to encourage and support women’s participation in the workforce. The Court on referral to , which aims to protect the employment of women during maternity and ensure their full health, said that it should be interpreted in an inclusive manner that encompasses all forms of motherhood. The Court also said that international conventions to which India is a signatory, such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), mandates equal treatment and non-discrimination in matters related to employment and maternity.
Therefore, while allowing the petition, the Court quashed the impugned letters and directed the State and the Authorities concerned to sanction 180 days maternity leave to the petitioner, within three months of the communication of the order. The Department concerned was also directed to incorporate this aspect in the relevant provisions of the rules to treat a child born out of surrogacy in the similar manner as a child born out of the natural process and provide the commissioning mother with all the benefits provided thereto.
[Supriya Jena v. State of Odisha, Writ Petition (Civil) No.30616 of 2020, Decided on: 25-06-2024]
Advocates who appeared in this case :
For the petitioner: Senior Advocate D.P. Nanda
For the respondent: AGA D.Mund
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