The Delhi High Court is the next in line to grant maternity benefits to government employees who have had their child through surrogacy. In a well detailed decision, Hon’ble Justice Mr. Rajiv Shakdher ruled that the commissioning mother’s entitlement to maternity leave cannot be denied only on the ground that she did not bear the child. This is the fact that a commissioning mother may require to be at the bed side of the surrogate mother, in a given situation, even at the pre-natal stage. The court further went on to state
the word ‘maternity’ can be attributed to only those female employees, who conceive and carry the child during pregnancy. In my view, the argument is partially correct, for the reason that the word ‘maternity’ pertains to the ‘character, condition, relation or state of a mother. In my opinion, where a Black’s Law Dictionary , 6th Edition at page 977 surrogacy arrangement is in place, the commissioning mother continues to remain the legal mother of the child, both during and after the pregnancy. To cite an example : suppose on account of a disagreement between the surrogate mother and the commissioning parents, the surrogate mother takes a unilateral decision to terminate the pregnancy, albeit within the period permissible in law for termination of pregnancy – quite clearly, to my mind, the commissioning parents would have a legal right to restrain the surrogate mother from taking any such action which may be detrimental to the interest of the child. The legal basis for the court to entertain such a plea would, in my view, be, amongst others, the fact that the commissioning mother is the legal mother of the child. The basis for reaching such a conclusion is that, surrogacy, is recognized as a lawful agreement in the eyes of law in this country. [See Baby Manji Yamada v. Union of India, (2008) 13 SCC 518]. In some jurisdictions though, a formal parental order is required after child birth.
Relying heavily on the decision of the Madras High Court in the Kalaiselvi case and the Kerala High Court in the Kerala Livestock Development Board case, the Court went to rule that A female employee, who is the commissioning mother, would be entitled to apply for maternity leave under sub-rule (1) of Rule 43.
The full decision is available as below for reference:
http://blog.indiansurrogacylaw.com/wp-content/uploads/2016/03/Rama_Pandey-Del_HC.pdf