Daniyal Qureshi | Symbiosis Law School Pune | 15th March 2020
Pooja Jignesh Doshi Vs. The State of Maharashtra and Ors. MANU/MH/2480/2019
Facts
The petitioner unable to bear a second child, with the consent of her husband opted for the route of surrogacy. A child was born to the surrogate mother, the petitioner subsequently.
Prior to the birth of the child the surrogate mother i.e. the petitioner applied for maternity leave which was denied to the petitioner. Hence the present writ petition under article 21 of the Constitution of India.
Issues
Whether a surrogate mother is entitled to maternity leave.
Judgement
In the present petition the High Court without going into the merits of the case relied on the judgement in Dr. Mrs. Hema Vijay Menon vs. State of Maharashtra by the same court. In this judgement the High court discussed the concept of Motherhood and maternity. The High Court in this matter discussed that Maternity is understood to be a period of pregnancy and the period shortly after child’s birth. The object of maternity leave is to protect the dignity of motherhood and provide a healthy insurance for the wellbeing of the child and the mother and for a healthy bond between the mother and the child. Maternity leave is intended the ends of Social Justice to women and the child. To distinguish between a mother who begets a child biologically and one who begets a child through surrogacy would result in insulting the womanhood and motherhood of the woman who intends to raise a child of surrogacy the same as she would raise a child born from her biologically. A maternity leave to a woman such as petitioner is necessary for the wellbeing of the child as well as the woman. 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. The Petitioner is held entitled to the relief sought for in terms of prayer clause [C]; being that the Earned Leave and Half-pay Leave availed of by her should be entered in the record as maternity leave for the purposes of the leave account and that the said leave availed by the Petitioner during various intervals be converted into maternity leave.
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