The Himachal Pradesh High Court on Thursday, March 4, ruled that a woman employee cannot be refused maternity leave even if she becomes a mother through surrogacy.
A division bench consisting of justice Tarlok Singh Chauhan and justice Sandeep Sharma issued the order on the petition filed by a woman language teacher employed on contract in Kullu district.
The woman became a mother through surrogacy on September 9, 2020, but her maternity leave application was denied.
Hearing her petition, the court stated that a woman contractual or ad hoc employee was entitled to maternity leave on the same terms as a regular woman employee, and there should be no discrimination.
The court went on to say that if the respondents acknowledge that the minor child was that of the petitioner, she was entitled to the leave in the same way as others who were entitled under the leave rules.
'Motherhood Doesn't End At Birth Of Child'
The court further said that distinguishing between a surrogate mother and a natural mother would be disrespectful to womanhood and a woman's intention to raise a child born through surrogacy.
According to Hindustan Times, the court said, "Even in the case of adoption, the adoptive mother does not give birth to the child, yet the central government has recognised the necessity of bonding of the mother with the child."
The bench said, "Motherhood should not end with an infant's birth, and a commissioning mother cannot be denied paid maternity leave. In terms of maternity care, a mother cannot be denied benefits only because she had the baby through surrogacy. An infant cannot be left at the mercy of another when it takes rearing, which is the most crucial time in which the child requires the mother's care and attention."
Bond Of Affection Between Mother And Child
The court also cited Article 42 of the Constitution, which states that the state shall provide just and humane working conditions and maternity relief since it has long been believed that working women were unable to devote their time to their children due to service obligations.
As a result, the concept to grant childcare leave was adopted to guarantee the child's safety by allowing the mother to take time off if she thinks the child requires care, according to the court.
It said that the maternity leave was given to foster an affectionate relationship between the mother and child.