Surrogate Parents are entitled to Maternity and Paternity Leave

Sejal Makkad | Amity Law School, Amity University Chhattisgarh | 4th June 2020

Dr.  Pooja Jignesh Doshi v. The State of Maharashtra and Another 

Facts

1. The petitioner sought to have a 2^nd child in her life and despite of giving a birth she chose the way of surrogacy with the consent of her husband.
2. The surrogate mother gave birth to a girl child.
3. The petitioner prior to delivery of child with expected date of delivery applied for maternity leave.
4. The petitioner’s application was rejected on the grounds that law does not provides for maternity benefits when there is a surrogated child.
5. Aggrieved with above rejection petitioner filled the petition before the Hon’ble High Court of Bombay.

Issues 

1. Whether the policies and rules for maternity benefits applies when there is a surrogated child?

Judgement 

The Hon’ble High Court held by referring the judgement of given in the case of Rama Pande vs. Union of India, held that even in case of birth by surrogacy the parents who have lent the ova and the sperm would be entitled to avail leave. The mother being entitled to maternity leave and the father is also entitled for paternity leave.

Further the court also held that an amendment in the Maternity Benefit Amendment Act, 2017 introduced an explicit provision in the Maternity Benefit Act,1961, it provides that even a commissioning mother (i.e. A biological mother who uses her egg to create an embryo implanted in any other woman) shall be entitled to get paid maternity leave of 12 weeks from the date the child is handed over to the commissioning mother. Further, the High Court of Bombay has also held that a commissioning father is also entitled to paternity leave. Till date, paternity leave is not compulsory provided in India, and is largely discretionary.