7/14/2019 Parents of Surrogate Child entitled to maternity, paternity leave, Bom HC

Parents of Surrogate Child entitled to maternity

and paternity leave, Bombay HC
barandbench.com/bombay-hc-surrogate-child-parents-entitled-maternity-leave-paternity-leave

July 13, 2019

Bar & Bench July 13 2019

Omkar Gokhale 

The Bombay High Court recently reiterated that the parents of a surrogate child are
also entitled to paternity and maternity leave.

Last week, a Division bench of Chief Justice Pradeep Nandrajog and Justice NM
Jamdar noted that the issue is no longer res-integra observing,

"... 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 paternity leave."

In particular, it referred to the Delhi High Court's 2015 decision in Rama Pande v.
Union of India, as well as the Bombay High Court's subsequent decision in Dr. Mrs
Hema Vijay Menon v. State of Maharashtra.

The Court passed the order while directing the Savitribai Phule Pune University to
adjust and record the leave taken by a professor, after the birth of her surrogate
daughter, as maternity leave.

The petitioner-professor was unable to bear a second child. Therefore, the couple
had opted for surrogacy. A surrogate mother delivered a baby girl on November 5,
2012.

Prior to the expected date of delivery, the petitioner-professor had sought maternity
leave from the University to take care of the child. Ordinarily, since Savitribai Pune
University is a State University, the employees are entitled to 120 days of paid
maternity leave.

However, the Pune university denied petitioner's request on the ground that its
maternity leave policy did not allow maternity leave in the case of a surrogate child.
Since the petitioner was not the biological mother of the child, she was denied
maternity leave.

The petitioner later approached the State Higher and Technical Education
department to review its policy and grant maternity leave. When the department did
not respond, the professor approached the Bombay High Court in 2015. Before the
High Court, she prayed for the conversion of leaves taken by her to take care of her
daughter, as maternity leave.

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7/14/2019 Parents of Surrogate Child entitled to maternity, paternity leave, Bom HC

The High Court observed that the authorities should have had taken note of the
prior rulings which had laid down that maternity leave benefits are also available to
parents of surrogate children.

In view of the settled law, the Court proceeded to declare that the petitioner
professor would also be entitled to maternity leave for child born through
surrogacy. It, therefore, allowed the plea and ordered,

"... 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."

[Read Order]

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