The Himachal Pradesh High Court in the case of Sushma Devi v. State of Himachal Pradesh and Ors. was considering the question of whether a woman employed on a contract basis with the Government is entitled to avail maternity leave even in case where she gets the child through arrangement by surrogate parents.

The Petitioner was working as a language teacher on a contractual basis at a government school. She had applied for a maternity leave to the Principal who the forwarded her application to the Deputy Director of Higher Education to seek clarification as to whether the petitioner is entitled for maternity leave on surrogacy. However, no action whatsoever was taken, constraining her to file the instant petition.

The Court held that:

1. The purpose of Rule 43 of CCS (Leave) Rules, 1972 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.
2. Taking a note of the constitutional mandate to provide for just and humane conditions of work and maternity relief under Article 42 of the Constitution, the court observed that it was long felt that the working women were unable to depute their time towards their children due to exigencies of service. Hence, the concept of grant of child care leave was introduced.
3. Reliance on the Bombay High Court judgement in Hema Vijay Menon v. State of Maharashtra & Ors., wherein it was observed that the object of the maternity leave is to protect the dignity of motherhood by providing for full and healthy maintenance to the woman and her child.
4. 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.
5. A woman cannot be discriminated, as far as maternity benefits are concerned, only on the ground that she has obtained the baby through surrogacy.
6. Respondents are directed to sanction/grant maternity leave to the petitioner in terms of Rule 43(1) of the CCS (Leave) Rules, 1972.

– Esha Shah, Paralegal