Important Provisions of Surrogacy (Regulation) Act, 2021

1. Short title and commencement.—(1) This Act may be called the Surrogacy (Regulation) Act, 2021.

(2) It shall come into force on such date2 as the Central Government may, by notification in the Official Gazette, appoint.

^1. Received the assent of the President on the 25th December, 2021.

^2. January 25, 2022 [Vide Noti. No. S.O. 292(E), dated 20-1-2022].

2. Definitions.—(1) In this Act, unless the context otherwise requires,—

(a) “abandoned child” means a child born out of surrogacy procedure who has been deserted by his intending parents or guardians and declared as abandoned by the appropriate authority after due enquiry;

(b) “altruistic surrogacy” means the surrogacy in which no charges, expenses, fees, remuneration or monetary incentive of whatever nature, except the medical expenses and such other prescribed expenses incurred on surrogate mother and the insurance coverage for the surrogate mother, are given to the surrogate mother or her dependents or her representative;

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Whether working mother can be denied custody of child born through surrogacy?

In our view, the professional and social obligations and activities of
the mother need not necessarily have an adverse impact on the upbringing
and safety of the minor child. In today‟s day and age, women are actively
pursuing their professions and avocations. They are also socializing as their
peers, friends, family and colleagues. That does not mean that they are
necessarily failing in performance of their maternal obligations. In fact,
working women are, by and large, having to put in extra time and effort to
keep both ends up, and they are doing it successfully. The child is an infant.
At this age, the child has little understanding of the actions and conduct of
the parents, particularly, those acts and conduct which take place outside the
child‟s environment.
 IN THE HIGH COURT OF DELHI AT NEW DELHI
 Judgment delivered on: 01.05.2018
W.P.(CRL) 357/2018

KIRAN LOHIA  Vs THE STATE GOVT OF NCT OF DELHI & ORS 
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MR. JUSTICE P.S.TEJI

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Whether maternity leave can be granted to woman who secured child through surrogacy?

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. 
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

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Bombay HC;Woman who obtains child through surrogacy is entitled to get maternity leave

The   learned   counsel   appearing   for   the   Petitioner   has
placed on record a Division Bench Judgment dated 22nd July 2015 of

this   Court   (Coram:   Smt   Vasanti   A.Naik   &   A.M.Badar,   JJ)   in   Writ
Petition No.3288 of 2015 (Dr.MRS HEMA VIJAY MENON VS STATE
OF MAHARASHTRA & ORS)  whereby it is specifically observed in
paragraph 7 as under :
“7. 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   herein   above   wold   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.”   
3.          Having considered even Rule 551 (C) and (E) of Child
Adoption Leave and Rules,  we find that a case is made out for grant
of interim relief in terms of prayer clause (b) as there is nothing in
Rule  551  (C)   and  (E)   as  referred   above,   which   would   dis­entitle
maternity leave to a women who has attained motherhood through
surrogacy procedure.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1727 OF 2015
Mrs Amisha Girish Ramchandani  .. Petitioner
vs
The Divisional Manager
(Personnel Branch) Mumbai CST

CORAM : ANOOP V. MOHTA &
                                                          G.S.KULKARNI, JJ.
 29 JANUARY, 2016.

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