As an encouraging move, the Government of Kerala has allowed maternity leave for 6 months and other benefits to intended mothers of children born through surrogacy. The following is the  copy of the governmental order passed in this regard:

http://blog.indiansurrogacylaw.com/wp-content/uploads/2016/05/Kerala-Maternity-Leave-surrogacy.pdf

 

The Madras High Court had ruled that a woman who had a child through surrogacy is entitled to the maternity benefits and leave. In case of K. Kalaiselvi vs. Chennai Port Trust.

The Madras High Court had decided the question if a commissioning mother is entitled to maternity benefits after the birth of the child. In this particular case, the commissioning mother was an employee of the Chennai Port Trust. She had a son aged about 20 years, who met his death in a road accident in the year 2009. She took up a surrogacy arrangement with a Hospital in Chennai and had been blessed with a female child born through surrogacy in the year 2011.

She had applied for maternity leave, which was partially granted. Her request to include the child born through surrogacy in the FMI card was rejected. The commissioning mother had also submitted all documents to demonstrate that the child born through surrogacy was her legal child and that she had all such rights as a parent having a child through normal means. The same was not accepted by her employer.

Aggrieved by the order refusing her maternity benefits, she moved the Madras High Court praying that she be declared to be the legal mother of the child and be provided with maternity benefits as would be applicable to natural birth. It was argued on behalf of the commissioning mother that surrogacy is only a scientific advancement, which has not been incorporated into the rules for maternity benefit. Though such a specific rule does not exist for surrogacy, it exists for adoption. That being the case, the commissioning mother be entitled for maternity benefits as she would be entitled. The Chennai Port Trust formally objected stating that there is no specific provision for maternity benefits for children born through surrogacy and the same may not provided to the commissioning mother.

Hon’ble Justice K. Chandru decided the issue with the following observation:

15. This court do(es) not find anything immoral and unethical about the petitioner having obtained a child through surrogate arrangement. For all practical purpose, the petitioner is the mother of the girl child G.K. Sharanya and her husband is the father of the said child. When once it is admitted that the said minor child is the daughter of the petitioner and at the time of the application, she was only one day old, she is entitled for leave akin to persons who are granted leave in terms of Rule 3-A of the Leave Regulations. The purpose of the said rule is for proper bonding between the child and parents. Even in the case of adoption, the adoptive mother does not give birth to the child, but yet the necessity of bonding of the mother with the adoptive child has been recognised by the Central Government. Therefore, the petitioner is entitled for leave in terms of Rule 3-A. Any other interpretation will do violence to various international obligations referred to by the learned counsel for the petitioner. Further, it is unnecessary to rely upon the provisions of the Maternity Benefit Act for the purpose of grant of leave, since that act deals with actual child-birth and it is mother centric. The Act do not deal with leave for taking care of the child beyond 6 weeks, i.e., the post natal period. The right for child care leave has to be found elsewhere. However, this court is inclined to interpret Rule 3-A of the Madras Port Trust (Leave) Regulations, 1987 also to include a person who obtain child through surrogate arrangement.

As has been pointed out by the Hon’ble Madras High Court, maternity leave is the time when a mother would be able to bond with the child. The bonding is not a luxury for a parent, but a basic necessity of any parent. The Chennai Port Trust should have provided the commissioning mother the maternity benefits as she may be entitled to otherwise.