Maternity leave for surrogate mothers- the boon and the bane

Dr G P Naik

Email naik@talentavenues.com Phone 09243470110

The Delhi High Court on 29^th Jan 2016 ruled in the case of a central government employee that surrogate mothers who have children through surrogacy are entitled to maternity leave which includes pre- and post-natal period. A similar judgement was delivered by the High Court of Kerala in respect of a state government employee on 6^th January 2015.

The earlier rulings of various courts have extended the maternity leave also to working women adopting the child. Therefore now there are three categories of working women eligible for maternity leave namely (1) woman delivering the child after becoming pregnant (2) woman adopting the child of some other woman and (3) woman engaging some other woman to carry her pregnancy, deliver the child and handover the child to her.

Legal aspects

Working women are eligible for 12 weeks (84 days) of maternity leave for child birth under ESI Act 1948 (payable by ESIC) or under Maternity Benefits Act  (payable by employer) as the case may be. The government employees are eligible for up to six months maternity leave under service rules applicable to them. Maternity leave is with full pay. Law makers then, had no inkling that courts will go to the extent of including child adoption and surrogacy for maternity benefit.

Purpose of maternity leave

The primary purpose of maternity leave is to protect the working women from health hazards arising out of pregnancy and child delivery. That is why half of the maternity leave is allowed to be availed before delivery and remaining half to be availed post delivery.

But unfortunately the courts in extending the benefit of maternity leave have ignored the importance of real women who deliver the baby for adoption or who share their womb for surrogacy. The courts, no doubt have delivered justice to one category of working women capable of attaining alternative motherhood without answering large many number of questions.

Who is a surrogate mother?

Surrogate mother is the one who carries in her womb, the progeny of another woman, delivers the baby only to be handed over to the woman who wants to attain alternative motherhood. In the process this hapless woman makes a supreme service to mankind by risking her health and aborting her motherhood feelings.

Unfortunately society has failed to call her as mother, rather she is called as surrogate woman and the other woman who receives the baby without delivering it, is called as mother.

LEGAL CONFUSION

Real mother: If both the women (1) one who carries the other woman’s  progeny in her womb  and (2) the woman who gets the child delivered by another woman,  are working women,   who should get the maternity leave, first woman, second woman or both. Unfortunately the courts are keeping quite on this matter.

Pre-natal leave: Pre-natal maternity leave is for the wellbeing of pregnant woman and the child in her womb.  Why should, an adopting woman or women receiving surrogate child be entitled to pre-natal leave, when she is not carrying the pregnancy, requiring rest and relaxation.

Adopting children older than six months: Even if we assume for the sake of argument, that maternity leave is for child care and not the for care of women who delivered the baby, whether maternity leave should be given to a woman who adopts, a child who is more than six months old. Because the maternity leave has to be availed, for twelve weeks (for industrial employees) or six months (for government employees) has to start at least at the time of child birth and end by the time the child attains three months or six months of age as the case may be.

Death of child: In case of a natural maternity, the woman is eligible for full leave of 12 weeks, even if the child dies, during this 12 weeks/ six months. The courts are not clear, about maternity leave if the adopted or surrogate child dies during this 12 weeks period.

Medical benefits: Whether the woman adopting a child or receiving child through surrogacy is eligible for medical benefits associated with maternity, without having a medical condition to qualify for the same.

Medical benefit for woman who is not your employee: Whether medical benefits associated with maternity can be extended to the woman who is not employed in your organization, but she carries the pregnancy and delivers the baby to fulfil the aspiration of your female employee.

How about working men: Historically maternity benefit is given only to working women and not working men, by assuming that it is the working women who have to deal with their health and medical conditions arising out of pregnancy and child delivery. If the woman who adopt a child or get a child through surrogacy can be given maternity benefit, why not extend it to working men who want to have a child through adoption and surrogacy.

Equality before law: There are lot of working men, not having children for various reasons. Should they not be given the maternity benefit for becoming fathers either through adoption or through surrogacy, failing which the constitutional right of equality before law becomes meaningless?

Women in industrial establishments: Whether the benefits from above judgments can be extended to working women in industrial establishment is a puzzle left to the wisdom of every individual. Legally speaking, both the judgments mentioned above are not applicable to industrial establishments and they are applicable only to government department employees. The court should have extended this judgement to women employed in industrial establishments also, in order avoid hearing another case on the same subject.

Missing link of humanism: Courts are not aware, why any woman agrees to carry in her womb by risking her life and dignity, the baby of and for another woman. Only the women from marginalised sections of the society will take up this job due to compelling circumstances. It is true that no one represented such marginalised women in the above cases, but it would have been fair if courts had looked at this matter.