Rights of a Commissioning Mother to Obtain Maternity Leave

Introduction

Firstly, let us understand the meaning of a ‘commissioning’ mother. According to the Assisted Reproductive Technology (Regulations) Act, of 2021, an infertile married couple who approaches an Assisted Reproductive Technology Clinic (ART Clinic) or an Assisted Reproductive Technology Bank (ART Bank) for the purpose of bearing a child through surrogacy is referred to as a commissioning couple. Likewise, a commissioning mother would be the mother who seeks to obtain a child through a rented womb of a surrogate mother. However, the commission mother remains the biological mother of the child and retains all rights in respect of the child.

The Madras High Court in the case K. Kalaiselvi v Chennai Port Trust[1] held that a commissioning mother has been judicially recognized as one who is similarly circumstanced, as an adoptive mother.

Through this blog, the authors try to address the dispute relating to the grant of maternity leave to commissioning mothers, when the child has been born out of a surrogate mother.    

Delhi High Court

This issue was first addressed in the Rama Pandey v Union of India (2013)[2] case. Herein, the Petitioner had entered an arrangement with, one, Ms Aarti, wife of Mr Surya Narayan (hereafter referred to as the surrogate mother). The arrangement required the surrogate mother to bear a child by employing the In-Vitro Fertilization (IVF) methodology. The methodology used and agreed upon required the genetic father to fertilize, In-Vitro, the ovum supplied by a designated donor. The resultant embryo was then required to be transferred and implanted in the surrogate mother. This arrangement, along with other terms and conditions, which included the rights and obligations of the commissioning parents, as also those of the surrogate mother, was reduced to a written agreement. Later, the Petitioner and her husband were gifted with twins.

The dispute arose when the Petitioner’s application for a Child-Care Leave (CCL) was rejected by her employer, being a government organization. Similarly, the Petitioner filed a Writ Petition before the Delhi High Court, and the matter was heard at length before the pronouncement of a definitive judgement in this regard.

The Court observed that there are two stages to pregnancy, the pre-natal and post-natal stages. Those pregnant female employees, who are constitutionally strong and do not face medical complications, (more often than not) avail a substantial part of their maternity leave in the period commencing after delivery. Rules and regulations framed in this regard by most organizations do not provide for bifurcation of maternity leave, that is, the division of leave between pre-natal and post-natal stages.  The reason why a substantial part of the leave is availed of by the female employees post-delivery is that the challenging part of bringing a new life into the world begins thereafter, in the post-natal period. Thus, it is evident that except for the physiological changes and difficulties, all other challenges of child-rearing are common to all female employees, irrespective of the manner in, which she chooses, to bring a child into this world.

Furthermore, a commissioning mother needs to bond with the child and take over the role of a breastfeeding mother, immediately after the delivery of the child. Therefore, the commissioning mother would become the principal caregiver upon the birth of a child (regardless of the fact that a child, in certain circumstances, might be bottle-fed). So, a commissioning mother’s entitlement to maternity leave cannot be denied on the ground that she did not bear the child.

Bombay High Court

Thereafter, a similar issue came before the Bombay High Court in the Hema Vijay Menon v State of Maharashtra (2015)[3] case. Herein, the Petitioner being aggrieved by the death of her 15-year-old son mutually decided with her husband to opt for surrogacy. The issue before the court was whether a mother is entitled to avail maternity leave, though she begets the child through surrogacy.

The Bombay High Court went on to explain the nuances of this issue. According to the court, ‘maternity’ (as also defined in the Oxford Dictionary) means the state of motherhood or motherliness. Maternity means and involves the period during pregnancy and shortly after the child’s birth. The object of maternity leave is to protect the dignity of motherhood by providing full and healthy maintenance of the woman and the child. In this view, the objective and intention behind providing a maternity leave should not be restricted to the health concerns of the mother, but also the health concerns and upbringing of the child. A bond and affection must be created between the mother and the child in the first year of his or her birth. Further, the broader object that the rules and regulation regarding maternity leave seek to achieve is ensuring social justice for women.  

Thereby, 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 or her birth. If an attempt is made to distinguish between the two, it 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 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 cannot be refused paid maternity leave. A woman cannot be discriminated against, 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. Maternity leave for the commissioning mother is 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. Therefore, 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.

“Right to life” under Article 21 of the Constitution of India includes the ‘right to motherhood’ and ‘the right of every child to full development.’ If the government can provide maternity leave to an adoptive mother, it must provide maternity leave to a mother who begets a child through the surrogacy procedure.

Himachal Pradesh High Court

In the recent judgement delivered in Sushma Devi v State of Himachal Pradesh and Ors.  (2021) 170 FLR 410, the Himachal Pradesh High Court dealt with the question regarding whether a woman employee working as Language Teacher on a contract basis with the Government is entitled to avail of maternity leave even in the case where she gets the child through an arrangement by surrogate parents.

While dealing with this issue, the High Court referred to various previous rulings made in this regard. The High Court cited another division bench ruling of the Himachal Pradesh High Court in ‘State of H.P. v. Sudesh Kumari’ (2015)[4], which held that the claim for maternity leave is based on fair play and social justice and no discrimination whatsoever could be made. If any discrimination is being made, then it is in breach of Article 14 and violative of the fundamental right of equality before the law. Further, the court also cited Municipal Corporation of Delhi v. Female Workers (2003)[5],  Rama Pandey v Union of India[6] and the Hema Vijay Menon v State of Maharashtra case[7].

The court, concurring with all the above-mentioned judgements stated that no discrimination can be made between a mother who begets a child through surrogacy and a natural mother and the maternity leave for a commissioning mother cannot be denied.

Conclusion

The said position of the Indian judiciary is with respect to female government employees. Private employees are governed by the terms and conditions of their respective agreements with the employer. Maternity rights under private agreements can vary depending on the organization. However, as pointed out by the Bombay High Court in the Hema Vijay Menon[8] case (mentioned above), the ‘right to motherhood’ and ‘right of the child to full development’ form part of the Right to Life under Article 21, which is a fundamental right granted to every citizen of the country. Thereby, even private employees can enforce such rights as fundamental rights against their employers, in case the employers deny granting them a paid maternity leave at the post-natal stage.