is nothing in Rule 74 of the the Maharashtra Civil Services (Leave)
Rules, 1961, which would disentitle a woman, who has attained
motherhood through the surrogacy procedure to maternity leave.
Rule 74 provides for maternity leave to a female government
employee. 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. It is worthwhile to note that by the
Government Resolution dated 28.07.1995, maternity leave is not
only provided to a natural mother but is also provided to an
adoptive mother, who adopts a child on its birth. The only reason
for refusing maternity leave to the petitioner is that there is nothing
in the Government Resolution, dated 28.07.1995 for providing
maternity leave to the mother who begets the child through
surrogacy. If the Government Resolution, dated 28.07.1995
provides maternity leave to an adoptive mother, it is difficult to
gauge why maternity leave should be refused to the mother, who
secures the child through surrogacy. In our view, there cannot be
any distinction whatsoever between an adoptive mother that
adopts a child and a mother that begets a child through a surrogate
mother, after implanting an embryo in the womb of the surrogate
mother. In our view, the case of the mother who begets a child
through surrogacy procedure, by implanting an embryo created by
using either the eggs or sperm of the intended parents in the womb
of the surrogate mother, would stand on a better footing than the
case of an adoptive mother. At least, there cannot be any
distinction between the two. Right to life under Article 21 of the
Constitution of India includes the right to motherhood and also the
right of every child to full development. If the government can
provide maternity leave to an adoptive mother, it is difficult to
digest the refusal on the part of the Government to provide
maternity leave to a mother who begets a child through the
surrogacy procedure. We do not find any propriety in the action on
the part of the Joint Director of Higher Education, Nagpur, of
rejecting the claim of the petitioner for maternity leave. The action
of the respondent Nos. 1 to 3 is clearly arbitrary, discriminatory
and violative of the provisions of Articles 14 and 21 of the
Constitution of India. It is useful to refer to the unreported
judgment of the Delhi High Court in the case of Rama Pande vs.
Union of India, and relied on by the learned counsel for the
petitioner, in this regard.
9. Hence, for the reasons aforesaid, the writ petition is
allowed. The impugned communication dated 07.05.2015 is
quashed and set aside. It is hereby declared that the petitioner is
entitled to the maternity leave for a period of one year from the
date of the birth of the child i.e. 04.12.2014.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 3288 OF 2015
Dr. Mrs. Hema Vijay Menon,
V
State of Maharashtra,
CORAM : SMT. VASANTI A. NAIK &A.M. BADAR, JJ.
Dated: JULY 22, 2015.
Citation: 2016(5) ALLMR622
2. The short question that arises for consideration in this
petition is, whether a mother is entitled to avail maternity leave,
though she begets the child through surrogacy.
3. Few facts giving rise to the petition are stated thus:
The petitioner is a highly qualified Lecturer who has
participated in several National and International Seminars and
Symposiums in law and is often invited as a guest faculty at several
institutions to deliver lectures on various subjects of law. On
28.07.2010, the petitioner lost her only son who was 15 years of
age. The petitioner and her husband suffered severe mental
trauma due to the loss of their only son and decided to bear a child.
The petitioner went through five cycles of In Vitro Fertility (IVF)
procedures at Jaslok Hospital, Mumbai, to conceive the child,
however, due to certain ailments, the petitioner was incapacitated
to bear the child and the attempts were unsuccessful. Upon the
failure of IVF procedures at Jaslok Hospital at Mumbai, the
petitioner was asked by an eminent Doctor at the Jaslok Hospital to
opt for the surrogacy procedure. After consultation with her
husband, the petitioner decided to have a child through surrogacy
arrangement. In furtherance of the said desire, in March 2013, an
embryo was successfully transplanted in the womb of a surrogate
mother. On 04.12.2014, the surrogate mother went into labour
and the petitioner and her husband rushed to Mumbai. The
surrogate mother delivered a baby boy and the said child was
immediately placed in the hands of the petitioner and her husband.
It is worthwhile to mention that the petitioner has spent an amount
of Rs.45,00,000/ (Rs. Forty five lakh) for the surrogacy procedure.
With a view to look after the newly born baby, the petitioner
applied for maternity/ child care leave to the Principal of the
respondent No. 4 – College as according to the petitioner, the
petitioner was entitled to maternity leave in view of the provisions
of Maharashtra Civil Services (Leave) Rules, 1981, which recognize
the right of a woman to maternity leave and are applicable to the
Lecturers like the petitioner. The petitioner also sought support
from the Government Resolution dated 28.07.1995, that provides
for maternity leave to the adoptive mother in the same manner as
is available to a natural mother. The Principal of the respondent
No. 4 – College approved the leave and the proposal was forwarded
to the Joint Director of Higher Education, for necessary action. To
the surprise of the petitioner, the Respondent No. 3 the Joint
Director of Higher Education, Nagpur informed the respondent No.
4 – Principal of the College, by the impugned communication dated
07.05.2015, that there was no provision for granting maternity
leave to a mother who begets a child through surrogacy procedure,
in the Government Resolution dated 28.07.1995. The petitioner
has challenged the communication dated 07.05.2015, by this
petition.
4. Shri Dhore, the learned counsel for the petitioner
submitted that an employee mother, like the petitioner, is entitled
to maternity leave under the provisions of the Maharashtra Civil
Services (Leave) Rules, and also in terms of the Government
Resolution dated 28.07.1995. It is submitted that merely because
the petitioner has begotten a child through surrogacy procedure,
maternity leave cannot be denied to the petitioner. It is
submitted that the object of providing maternity leave is not only
related to the health concerns of the mother but is also related with
the health concern and the upbringing of the child. It is submitted
that a bond of affection has to be created between the mother and
the child in the first year of his/ her birth. It is submitted that
there is nothing in the provisions of Rule 74 of the Maharashtra
Civil Services (Leave) Rules and the Government Resolution dated
28.07.1995 which disentitles the petitioner from availing the
maternity leave. It is submitted that the action of the respondent
No. 3 in declining permission to the petitioner to avail the
maternity leave is arbitrary and discriminatory and the impugned
order is liable to the set aside. The learned counsel for the
petitioner relied on the unreported judgment of the Delhi High
Court, dated 17.07.2015 in the case of Rama Pande vs. Union of
India, which in turn has referred to some of the reported judgments
of the other High Courts.
5. Ms. Udeshi, the learned Assistant Government Pleader
appearing for the respondent Nos. 1 to 3, supported the action of
the Joint Director of Higher Education and submitted that the
Government Resolution dated 28.07.1995 provides for maternity
leave to an adoptive mother but it does not provide for maternity
leave to a mother, who has secured the child through surrogacy. It
is submitted that the Resolution of the Finance Department of the
State Government, dated 28.07.1995 was rightly considered by the
Joint Director of Higher Education, to refuse maternity leave to the
petitioner. It is, however, not disputed that a natural mother and
an adoptive mother is entitled to a paid maternity leave for one
year from the date of the birth of the child.
6. Shri Bhole, the learned counsel for the respondent No.
4 – College, supported the case of the petitioner and submitted that
it is inappropriate on the part of the respondent No. 3 – Joint
Director of Higher Education, Nagpur, to refuse maternity leave to
the petitioner on the ground that the petitioner had begotten the
child through surrogacy.
7. On hearing the learned counsel for the parties, it
appears that the Joint Director of Higher Education, Nagpur, was
not justified in refusing maternity leave to the petitioner. According
to Oxford English Dictionary, maternity means motherhood.
Maternity means the period during pregnancy and shortly after the
child's birth. If Maternity means motherhood, it would not be
proper to distinguish between a natural and biological mother and
a mother who has begotten a child through surrogacy or has
adopted a child from the date of his/ her birth. The object of
maternity leave is to protect the dignity of motherhood by
providing for full and healthy maintenance of the woman and her
child. Maternity leave is intended to achieve the object of ensuring
social justice to women. Motherhood and childhood both require
special attention. Not only are the health issues of the mother and
the child considered while providing for maternity leave but the
leave is provided for creating a bond of affection between the two.
It is said that being a mother is one of the most rewarding jobs on
the earth and also one of the most challenging. To distinguish
between a mother who begets a child through surrogacy and a
natural mother who gives birth to a child, would result in
insulting womanhood and the intention of a woman to bring up
a child begotten through surrogacy, as her own. A commissioning
mother like the petitioner would have the same rights and
obligations towards the child as the natural mother. Motherhood
never ends on the birth of the child and a commissioning mother
like the petitioner cannot be refused paid maternity leave. A
woman cannot be discriminated, as far as maternity benefits are
concerned, only on the ground that she has obtained the baby
through surrogacy. Though the petitioner did not give birth to the
child, the child was placed in the secured hands of the petitioner as
soon as it was born. A newly born child cannot be left at the mercy
of others. A maternity leave to the commissioning mother like the
petitioner would be necessary. A newly born child needs rearing
and that is the most crucial period during which the child requires
the care and attention of his mother. There is a tremendous
amount of learning that takes place in the first year of the baby's
life, the baby learns a lot too. Also, the bond of affection has to be
developed. A mother, as already stated hereinabove, would include
a commissioning mother or a mother securing a child through
surrogacy. Any other interpretation would result in frustrating the
object of providing maternity leave to a mother, who has begotten
the child.
8. As rightly pointed out on behalf of the petitioner, there
is nothing in Rule 74 of the the Maharashtra Civil Services (Leave)
Rules, 1961, which would disentitle a woman, who has attained
motherhood through the surrogacy procedure to maternity leave.
Rule 74 provides for maternity leave to a female government
employee. 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. It is worthwhile to note that by the
Government Resolution dated 28.07.1995, maternity leave is not
only provided to a natural mother but is also provided to an
adoptive mother, who adopts a child on its birth. The only reason
for refusing maternity leave to the petitioner is that there is nothing
in the Government Resolution, dated 28.07.1995 for providing
maternity leave to the mother who begets the child through
surrogacy. If the Government Resolution, dated 28.07.1995
provides maternity leave to an adoptive mother, it is difficult to
gauge why maternity leave should be refused to the mother, who
secures the child through surrogacy. In our view, there cannot be
any distinction whatsoever between an adoptive mother that
adopts a child and a mother that begets a child through a surrogate
mother, after implanting an embryo in the womb of the surrogate
mother. In our view, the case of the mother who begets a child
through surrogacy procedure, by implanting an embryo created by
using either the eggs or sperm of the intended parents in the womb
of the surrogate mother, would stand on a better footing than the
case of an adoptive mother. At least, there cannot be any
distinction between the two. Right to life under Article 21 of the
Constitution of India includes the right to motherhood and also the
right of every child to full development. If the government can
provide maternity leave to an adoptive mother, it is difficult to
digest the refusal on the part of the Government to provide
maternity leave to a mother who begets a child through the
surrogacy procedure. We do not find any propriety in the action on
the part of the Joint Director of Higher Education, Nagpur, of
rejecting the claim of the petitioner for maternity leave. The action
of the respondent Nos. 1 to 3 is clearly arbitrary, discriminatory
and violative of the provisions of Articles 14 and 21 of the
Constitution of India. It is useful to refer to the unreported
judgment of the Delhi High Court in the case of Rama Pande vs.
Union of India, and relied on by the learned counsel for the
petitioner, in this regard.
9. Hence, for the reasons aforesaid, the writ petition is
allowed. The impugned communication dated 07.05.2015 is
quashed and set aside. It is hereby declared that the petitioner is
entitled to the maternity leave for a period of one year from the
date of the birth of the child i.e. 04.12.2014. Rule is made absolute
in the aforesaid terms with no order as to costs.
No comments:
Post a Comment