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Himachal Pradesh High Court says teacher who had a child through a surrogate entitled to avail maternity leave

The petitioner was blessed with a baby through surrogacy treatment and had applied for maternity leave.

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The Himachal Pradesh High Court on Thursday, while allowing a petition, considered the question whether a woman employee, a Language Teacher on contract basis with the government, is entitled to avail maternity leave even if she is engaging surrogate parents to conceive a child?

The facts of the case is that the petitioner joined as a Language Teacher on contract basis and is currently posted at Government Senior Secondary School, Showad, District Kullu. The petitioner was blessed with a baby on 10.09.2020 through surrogacy treatment. The petitioner had applied for maternity leave to the Principal, Government Senior Secondary School, Showad, District Kullu, (respondent No.4), who in turn forwarded the same to Deputy Director, Higher Education, Kullu, (respondent No.3) seeking clarification as to whether the petitioner is entitled for maternity leave on surrogacy. However, no action whatsoever was taken on the application of the petitioner. The petitioner then approached the High Court seeking direction to the respondents to sanction/grant the maternity leave to her.

The respondents contended the petition on the ground that the only ground taken for non-grant of the leave was that as per Notification of H.P. Government issued vide Finance Department No. Fin.(C)-A(3)-1/2008 Loose dated 21.12.2017, maternity leave is admissible on adoption of a child as per Rule 43(1) of CCS (Leave) Rules 1972 for 180 days, but there is no clarification in the notification regarding admissibility of maternity leave to a female Government employee on surrogacy.

A Single-Judge Bench of Justice Tarlok Singh Chauhan after hearing the submission from both the Parties, held that it is no longer res integra that a female contractual employee/ad hoc employee is entitled to maternity leave at par with the female regular employee. Reference in this regard can conveniently be made to the judgment rendered by the Division Bench of this Court of which one of us (Justice Tarlok Singh Chauhan) was a member in ‘State of H.P. and others versus Sudesh Kumari’ 2015 (1) Him. L.R.(DB) 36.

Once, the respondents admit that the minor child is that of the petitioner, then she is entitled to the leave akin to the persons, who are granted leave in terms of the rules. The purpose of the rules is for proper bonding between the child and parents. Even, in the case of adoption, the adoptive mother does not give birth to the child, yet the necessity of bonding of the mother with the adopted child has been recognized by the Central Government, further observed by the Court.

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The Bench has also referred to the Article 42 of the Constitution of India reads as under:

“ Provision for just and humane conditions of work and maternity relief:- The State shall make provision for securing just and humane conditions of work and for maternity relief.”

The Court while allowing the Petition said that

“Not only are the health issues of the mother and the child considered while providing for maternity leave, but the leave is provided for creating a bond of affection between the two. To distinguish between a mother who begets a child through surrogacy and a natural mother, who gives birth to a child, would result in insulting womanhood and the intention of a woman to bring up a child begotten through surrogacy. Motherhood never ends on the birth of the child and a commissioning mother cannot be refused paid maternity leave. A woman cannot be discriminated as far as maternity benefits are concerned, only on the ground that she has obtained the baby through surrogacy. A newly born child cannot be left at the mercy of others as it needs rearing and that is the most crucial period during which the child requires care and attention of his mother. The tremendous amount of learning that takes place in the first year of the baby’s life, the baby learns a lot too. A bond of affection has also to be developed.”

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