CHAPTER-7

JUDICIAL APPROACH

7.1 JUDGEMENTS AND CASES

7.1.1

Baby Manji Yamada vs Union Of India & Anr on 29 September, 2008

chosen a surrogate mother in Anand, Gujarat and

a surrogacy agreement was entered into between the biological father and
biological ... being committed. According to it, in the name of surrogacy a
money making racket is being perpetuated. It is also Supreme Court of India

Supreme Court of India

Baby Manji Yamada vs Union Of India & Anr on 29 September, 2008

Author: . A Pasayat

Bench: Arijit Pasayat, Mukundakam Sharma

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO. 369 OF 2008
Baby Manji Yamada ……………Petitioner
Versus
Union of India & Anr. …………….Respondents

JUDGMENT
Dr. ARIJIT PASAYAT, J.

1. This petition under Article 32 of the Constitution of India, 1950

(hereinafter for short 'the Constitution') raises some important
questions.
2. Essentially challenge is to certain directions given by a Division
Bench of the Rajasthan High Court relating to production/custody of a
child Manji Yamada. Emiko Yamada, claiming to be grandmother of

566
 the child, has filed this petition. The Writ Petition before the Rajasthan
High Court was filed by M/s. SATYA, stated to be an NG0, the
opposite party No. 3 in this petition. The D.B. Habeas Corpus Writ
Petition No. 7829 of 2008 was filed by M/s. SATYA wherein the
Union of India through Ministry of Home Affairs, State of Rajasthan
through the Principal Secretary, The Director General of Police,
Government of Rajasthan and the Superintendent of Police Jaipur City
(East), Jaipur were made the parties. There is no dispute about Baby
Manji Yamada having been given birth by a surrogate mother. It is
stated that the biological parents Dr. Yuki Yamada and Dr. Ikufumi
Yamada came to India in 2007 and had chosen a surrogate mother in
Anand, Gujarat and a surrogacy agreement was entered into between
the biological father and biological mother on one side and
the surrogate mother on the other side. It appears from some of the
statements made that there were matrimonial discords between the
biological parents. The child was born on 25th July, 2008. On 3rd
August, 2008 the child was moved to Arya Hospital in Jaipur
following a law and order situation in Gujarat and she was being
provided with much needed care including being breastfed by a
woman. It is stated by the petitioner that the genetic father Dr. Ifukumi
Yamada had to return to Japan due to expiration of his visa. It is also
stated that the Municipality at Anand has issued a Birth Certificate
indicating the name of the genetic father.
3. Stand of respondent No. 3 was that there is no law governing
surrogation in India and in the name of surrogation lot of irregularities
are being committed. According to it, in the name of surrogacy a
money making racket is being perpetuated. It is also the stand of the
said respondent that the Union of India should enforce stringent laws
relating to surrogacy. The present petitioner has questioned the locus
standi of respondent No. 3 to file a habeas corpus petition. It is pointed
out that though custody of the child was being asked for but there was
not even an indication as to in that’s alleged illegal custody the child
was. It is stated that though the petition before the High Court was
styled as a "Public Interest Litigation" there was no element of public

567
 interest involved. Learned counsel for respondent No. 3 with reference
to the counter- affidavit filed in this Court had highlighted certain
aspects relating to surrogacy. The learned Solicitor General has taken
exception to certain statements made in the said counter affidavit and
has submitted that the petition before the High Court was not in good
faith and was certainly not in public interest.
4. We need not go into the locus standi of respondent No. 3 and/or
whether bonfires are involved or not. It is to be noted that the
Commissions For Protection of Child Rights Act, 2005 (hereinafter for
short 'the Act') has been enacted for the constitution of a National
Commission and State Commissions for protection of child rights and
children's courts for providing speedy trial of offences against children
or of violation of child rights and for matters connected therewith or
incidental thereto. Section 13 which appears in Chapter III of the Act is
of considerable importance. The same reads as follows:

"13. Functions of Commission.

(1) The Commission shall perform all or any of the following

functions, namely:-

(a) examine and review the safeguards provided by or under any law
for the time being in force for the protection of child rights and
recommend measures for their effective implementation;

(b) present to the Central Government, annually and at such other

intervals, as the Commission may deem fit, reports upon the working
of those safeguards;

(c) inquire into violation of child rights and recommend initiation of

proceedings in such cases;

(d) examine all factors that inhibit the enjoyment of rights of children
affected by terrorism, communal violence, riots, natural disaster,
domestic violence, HIV/AIDS, trafficking, maltreatment, torture and

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exploitation, pornography and prostitution and recommend appropriate
remedial measures.

(e) look into the matters relating to children in need of special care and
protection including children in distress, marginalized
and disadvantaged children, children in conflict with law, juveniles,
children without family and children of prisoners and recommend
appropriate remedial measures;

(f) study treaties and other international instruments and undertake

periodical review of existing policies, programmes and other activities
on child rights and make recommendations for their effective
implementation in the best interest of children;

(g) Undertake and promote research in the field of child rights;

(h) spread child rights literacy among various sections of the society
and promote awareness of the safeguards available for protection of
these rights through publications, the media, seminars and other
available means;

(I) inspect or cause to be inspected any juvenile custodial home, or any

other place of residence or institution meant for children, under the
control of the Central Government or any State Government or any
other authority, including any institution run by a social organisation;
where children are detained or lodged for the purpose of treatment,
reformation or protection and take up with these authorities for
remedial action, if found necessary;

(j) inquire into complaints and take suo motu notice of matters relating
to, -

(i) deprivation and violation of child rights;

(ii) non-implementation of laws providing for protection and

development of children;

569
 (iii)non-compliance of policy decisions, guidelines or
instructions aimed at mitigating hardships to and ensuring
welfare of the children and to provide relief to such children, or
take up the issues arising out of such matters with appropriate
authorities; and

(k) such other functions as it may consider necessary for the

promotion of child rights and any other matter incidental to the
above functions

2) The Commission shall not inquire into any matter which is pending
before a State Commission or any other Commission duly constituted
under any law for the time being in force."

5. Surrogacy is a well known method of reproduction whereby a woman

agrees to become pregnant for the purpose of gestating and giving birth to a
child she will not raise but hand over to a contracted party. She may be the
child's genetic mother (the more traditional form for surrogacy) or she may be,
as a gestational carrier, carry the pregnancy to delivery after having been
implanted with an embryo. In some cases surrogacy is the only available
option for parents who wish to have a child that is biologically related to them.
The word "surrogate", from Latin "subrogare", means "appointed to act in the
place of". The intended parent(s) is the individual or couple who intends to
rears the child after its birth.

6. In "traditional surrogacy" (also known as the Straight method) the surrogate

is pregnant with her own biological child, but this child was conceived with
the intention of relinquishing the child to be raised by others; by the biological
father and possibly his spouse or partner, either male or female. The child may
be conceived via home artificial insemination using fresh or frozen sperm or
impregnated via IUI (intrauterine insemination), or ICI (intra cervical
insemination) which is performed at a fertility clinic. '

7. In "gestational surrogacy" (also known as the Host method) the surrogate

becomes pregnant via embryo transfer with a child of which she is not the

570
biological mother. She may have made an arrangement to relinquish it to the
biological mother or father to raise, or to a parent who is themselves unrelated
to the child (e. g. because the child was conceived using egg donation, germ
donation or is the result of a donated embryo). The surrogate mother may be
called the gestational carrier.

8. "Altruistic surrogacy" is a situation where the surrogate receives no

financial reward for her pregnancy or the relinquishment of the child (although
usually all expenses related to the pregnancy and birth are paid by the intended
parents such as medical expenses, maternity clothing, and other related
expenses).

9. "Commercial surrogacy" is a form of surrogacy in which a gestational

carrier is paid to carry a child to maturity in her womb and is usually resorted
to by well off infertile couples who can afford the cost involved or people who
save and borrow in order to complete their dream of being parents. This
medical procedure is legal in several countries including in India where due to
excellent medical infrastructure, high international demand and ready
availability of poor surrogates it is reaching industry proportions. Commercial
surrogacy is sometimes referred to by the emotionally charged and potentially
offensive terms "wombs for rent", "outsourced pregnancies" or "baby farms".

10. Intended parents may arrange a surrogate pregnancy because a woman

who intends to parent is infertile in such a way that she cannot carry a
pregnancy to term. Examples include a woman who has had a hysterectomy,
has a uterine malformation, has had recurrent pregnancy loss or has a healthy
condition that makes it dangerous for her to be pregnant. A female intending
parent may also be fertile and healthy, but unwilling to undergo pregnancy.

11. Alternatively, the intended parent may be a single male or a male

homosexual couples.

12. Surrogates may be relatives, friends, or previous strangers. Many surrogate

arrangements are made through agencies that help match up intended parents
with women who want to be surrogates for a fee. The agencies often help

571
manage the complex medical and legal aspects involved. Surrogacy
arrangements can also be made independently. In compensated surrogacies the
amount a surrogate receives varies widely from almost nothing above
expenses to over $ 30,000. Careful screening is needed to assure their health
as the gestational carrier incurs potential obstetrical risks.

13. In the present case, if any action is to be taken that has to be taken by the
Commission. It has a right to inquire into complaints and even to take suo
motu notice of matters relating to, (i) deprivation and violation of child rights
(ii) non-implementation of laws providing for protection and development of
children and (iii) non-compliance of policy decisions, guidelines or
instructions aimed at mitigating hardships to and ensuring welfare of the
children and to provide relief to such children, or take up the issues arising out
of such matters with appropriate authorities.

14. It appears that till now no complaint has been made by anybody relating to
the child, the petitioner in this Court.

15. We, therefore, dispose of this writ petition with a direction that if any
person has any grievance, the same can be ventilated before the Commission
constituted under the Act. It needs no emphasis that the Commission has to
take into account various aspects necessary to be taken note of.

16. Another grievance of the petitioner is that the permission to travel so far as
the child is concerned including issuance of a Passport is under consideration
of the Central Government; but no orders have been passed in that regard. The
other prayer in the petition is with regard to an extension of the visa of the
grandmother of the child requesting for such an order.

17. Learned Solicitor General, on instructions, stated that if a comprehensive

application, as required under law, is filed within a week, the same shall be
disposed of expeditiously and not later than four weeks from the date of
receipt of such application. If the petitioner has any grievance in relation to the
order to be passed by the Central Government, such remedy, as is available in
law may be availed.

572
18. The writ petition is accordingly disposed of without any order as to costs.
All proceedings pending in any High Court relating to the matter which we
have dealt with in this petition shall stand disposed of because of this order.

...........................................J. (Dr. ARIJIT PASAYAT)

...........................................J. (Dr. MUKUNDAKAM SHARMA) New Delhi:

September 29, 2008

7.1.2

Harihara Varma vs Girija Menon

Basis of an oral agreement of surrogacy as the petitioner did not have

any issues out of the lawful wedlock ... purchased by the petitioner for the
implementation of the surrogacy agreement. The petitioner alleges that the
respondent has gone back

Kerala High Court

Harihara Varma vs Girija Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE
&
THE HON'BLE MR. JUSTICE BABU MATHEW P.JOSEPH
WEDNESDAY, THE 5TH DAY OF SEPTEMBER 2012/14TH BHADRA
1934
OP (FC).No. 2488 of 2012 (R)IA.NO.527/2012 IN OP.351/2012 of FAMILY
COURT, PALAKKAD
PETITIONER: HARIHARA VARMA,
S/O LATE BHASKARA VARMA, AGED 60 YEARS,
PANCHAJANIAM
MANAPPULLIKAVU, YAKKARA AMSOM, PALAKKAD.

……..BY ADV. SRI.B.JAYASURYA

573
RESPONDENT: GIRIJA MENON,AGED 48 YEARS
D/O KARUNAKARA MENON, KARUN BHAVAN,
VENNAKKARA
NOORANI, PALAKKAD-678004.

THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON

05-09-2012, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
PIUS C. KURIAKOSE &
……..BABU MATHEW P. JOSEPH, JJ.
------------------------------------------------
O. P. (FC) No.2488 of 2012
------------------------------------------------
Dated this the 5th day of September, 2012

JUDGMENT

1. Pius C. Kuriakose, J This Original Petition under Article 227 of the

Constitution is directed against Ext.P3 order passed by the Family Court,
Palakkad. Ext.P3 is passed by the Family Court in I.A.527/12 in O.P.351/12.
The O.P was for a decree of permanent prohibitory injunction restraining the
respondent from interfering with the petitioner's entry into and enjoyment of
the petition schedule properties. It is admitted that the respondent is in
occupation of the petition schedule properties. The I.A. was for a temporary
injunction in the lines of the perpetual injunction which was sought for in the
Original Petition.

2. The case of the petitioner was that drama of a marriage was conducted
between him and the respondent on the basis of an oral agreement of
surrogacy as the petitioner did not have any issues out of the lawful wedlock
he had with one Vimala Devi. According to the petitioner, the agreement
between the parties was that a total amount of ` 5 lakhs will be paid by the
petitioner to the respondent provided the respondent conceives his child.
According to the petitioner the first installment of ` 1 lakh is already paid. The

574
respondent was accommodated in the petition schedule property which was
purchased by the petitioner for the implementation of the surrogacy
agreement. The petitioner alleges that the respondent has gone back on the
terms of the agreement and hence, he has repudiated the agreement and he
does not want the respondent to occupy the property at all.

3. Serious counter affidavit was filed by the respondent. Significantly

absolutely no evidence and much less documentary evidence was produced by
the petitioner to substantiate his case of having entered into surrogacy
agreement and having staged drama of marriage along with the respondent.
The learned Judge of the Family Court dismissed the IA holding that no prima
facie case is made out for passage of injunction order against the respondent
who is in actual physical occupation.

4. Having considered the impugned order as well as the submissions addressed

before us by Sri.B.Jayasuriya, the learned counsel for the petitioner in detail,
we are of the view that there is no infirmity about Ext.P3 and much less any
infirmity which will justify the invocation of the supervisory jurisdiction of
this Court under Article 227. Supervisory jurisdiction under Article 227 is a
visitorial jurisdiction which will be invoked only very sparingly. The above
jurisdiction will be invoked only when the order passed by the subordinate
judicial authority is per se illegal in the sense that it offends a clear provision
of law either statutory or settled, or is passed without jurisdiction or is of such
a nature that it can be branded as a perverse order in the sense that such an
order will not be authored by anybody having reasonable training or learning
in law. Gauging Ext.P3 by those parametres, we are sure that the same is not
liable to be corrected under Article 227. We decline jurisdiction and dismiss
the O.P. However, there will be a direction to the learned Judge of the Family
Court, Palakkad to try and dispose of O.P.351/12 at his earliest. Needless to
mention that adequate opportunity should be afforded to both sides to adduce
whatever further evidence they want to for substantiating their rival
contentions. At any rate the learned Judge should ensure that the OP is finally
disposed of within three months of receiving a copy of this judgment.

Sd/-

575
 PIUS C. KURIAKOSE JUDGE
Sd/-

BABU MATHEW P. JOSEPH

JUDGE kns/-

//TRUE COPY// P.A. TO

JUDGE

7.1.3

P.Geetha vs The Kerala Livestock Development ... on 18 June, 2014

Petitioner to look after her baby born through surrogacy process, the
petitioner has filed the present writ petition. Rival Contentions ... attention to
the treatment of the issue of surrogacy and the rights and obligations arising
there from in international arena .

Kerala High Court

P.Geetha vs The Kerala Livestock Development ... on 18 June, 2014

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU
TUESDAY, THE 6TH DAY OF JANUARY 2015/16TH POUSHA, 1936

WP(C).No. 20680 of 2014 (H)

PETITIONER(S): P.GEETHA, GEETHAM, PRATHEEKSHA NAGAR,
KILIKOLLOOR P.O., KOLLAM-691 004.

……………….BY
ADVS.SRI.M.GOPIKRISHNAN NAMBIAR
DR.THUSHARA JAMES
SRI.P.GOPINATH
SRI.P.BENNY THOMAS
SRI.K.JOHN MATHAI
SRI.JOSON MANAVALAN

576
 SRI.KURYAN THOMAS
RESPONDENTS:
1. THE KERALA LIVESTOCK DEVELOPMENT BOARD LTD.,
GOKULAM, PATTOM, THIRUVANANTHAPURAM-695 004
REPRESENTED BY ITS MANAGING DIRECTOR.
2. STATE OF KERALA REPRESENTED BY THE SECRETARY
TO GOVERNMENT, AGRICULTURAL DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.

……….R1 BY SR.ADV. SMT.SUMATHY DANDAPANI

SRI.MILLU DANDAPANI
……….R2 BY SR.GOVERNMENT PLEADER SRI.V.VIJULAL

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON

06-01-2015, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
APPENDIX IN WP(C).No. 20680 of 2014 (H)
PETITIONER'S EXHIBITS:

EXT.P1. TRUE COPY OF THE LEAVE APPLICATION DATED 18/6/2014

SUBMITTED BY THE PETITIONER

EXT.P2. TRUE COPY OF THE LETTER DATED 10/7/2014 BY THE 1ST

RESPONDENT

EXT.P3. TRUE COPY OF THE LETTER DATED 16/7/2014 BY THE 1ST

RESPONDENT

RESPONDENT'S EXHIBITS: NIL.

/TRUE COPY/
P.S. TO JUDGE
Dama Seshadri Naidu, J.

577
-------------------------------------------
W.P.(C)No.20680 of 2014 H
--------------------------------------------
Dated this the 6th day of January, 2015

JUDGMENT

Introduction:

Jean-Louis de Lolme's popular assertion that English parliament can do

everything but make a woman a man, and man a woman, may have illustrated
the putative omnipotence of British Parliament, but science has gaily mocked
at it, in course of time. Once IBM's Chairman predicted, wrongly though, that
there would be a world market for may be five computers. Science never
ceases to surprise us: it always outwits us, out- paces us; and makes us either
change or become irrelevant. Law is no exception: the West is grappling with
the same sex marriages; and most of the law enforcement agencies have been
facing issues like virtual world vandalism, identity theft, and torrent copy right
violations, to name a few. Now, we have to add to that, the split motherhood.

2. For Robert Brown all love begins and ends with motherhood, by which a
woman plays the God. Glorious it is as the gift of nature, being both
sacrosanct and sacrificial, though; now again, science has forced us to alter our
perspective of motherhood. It is no longer one indivisible instinct of mother to
bear and bring up a child. With advancement of reproductive science, now, on
occasions, the bearer of the seed is a mere vessel, a nursery to sprout, and the
sapling is soon transported to some other soil to grow on. Now, it is Law's turn
to appreciate the dichotomy of divine duty, the split motherhood.

Facts:

3. Briefly stated, having joined just about a year ago, the petitioner is a Deputy
General Manager working in the first respondent Board, a Government of
Kerala undertaking. After remaining childless for over twenty years, the
petitioner, along with her husband, had recently entered into an arrangement

578
with a fertility clinic in Hyderabad, Telengana State, to have a baby through
surrogate procedure. In fact, a baby was born on 18.06.2014 through a host
mother, and handed over to the petitioner, the genetic mother.

4. With a view to looking after the new born baby, the petitioner is said to
have submitted Exhibit P1 application for leave with effect from 19.06.2014
'as applicable for child birth in the normal process'. The first respondent,
however, through Exhibit P2 letter dated 10.07.2014, informed the petitioner
that the Staff Rules and Regulations do not permit any leave to the employees
on maternity ground other than the maternity leave envisaged under 'normal
circumstances'.

5. It appears that the first respondent has further informed the petitioner
through Exhibit P3 letter dated 16.07.2014 that the petitioner could avail
herself of loss of pay leave on medical ground. Under those circumstances,
being aggrieved by the refusal of the first respondent to grant leave for the
petitioner to look after her baby born through surrogacy process, the petitioner
has filed the present writ petition.

Rival Contentions:

Petitioners:

6. Dr.Thushara James, the learned counsel for the petitioner, has initially
explained all the nuances of this emerging branch of maternity. She has
submitted that in that particular arrangement the petitioner had, the surrogate
mother only underwent the gestational process, without much of emotional
quotient, as the petitioner and her husband remained the genetic parents. Thus,
as per the arrangement, as soon as the surrogate mother had been delivered of
the baby, it had to be handed over to the petitioner, and it was done. Now, a
toddler of days could not be left to the care of others.

7. The learned counsel has drawn my attention to the treatment of the issue of
surrogacy and the rights and obligations arising there from in international
arena. According to her, in the USA different states have adopted different

579
approaches, whereas in a country like Israel, it is state controlled. The learned
counsel has also stressed that, though it sounds pejorative, now for many
developed countries, India has become a destination for what is called
'Fertility Tourism'.

8. In the process of justifying the claim of the petitioner for maternity leave,
the learned counsel for the petitioner has underlined all the statutory
developments in the field of Assisted Reproductive Technology (ART) across
the world, with a specific reference to India. She has submitted that India has
already come with a draft Bill, namely, The Assisted Reproductive
Technologies (Regulation) Bill, 2010, Chapter VII of which deals with the
rights and duties of parents, donors, surrogates and children. The learned
counsel has taken the Court through certain aspects of the recommendations
made by the Indian Council for Medical Research (ICMR), as well as the
228th report of the Law Commission of India.

9. The learned counsel for the petitioner has submitted that maternity either
through biological process or through surrogacy is one and the same, and that
for all intents and purposes the commissioning parents are the natural parents,
with same set of rights and obligations. According to her, motherhood does
not end with delivery of a baby, but continues, with more vigour, through the
process of child rearing, which is an equally difficult task. To stress the
accepted practice of surrogacy from the days time immemorial, the learned
counsel has made a Biblical reference to Genesis 16:2 of the New Testament
(King James Version): "And Sarai said unto Abram, Behold now, the LORD
hath restrained me from bearing: I pray thee, go in unto my maid; it may be
that I may obtain children by her. And Abram hearkened to the voice of
Sarai."

10. As to the international treaty obligations, the learned counsel has referred
to Article 25(2) of the Universal Declaration of Human Rights, 1948, Articles
4, 10 (1), 10(2) and 10(3) of the International Convention on Civil & Political
Rights, 1966, Articles 17 and 33 of the Beijing Declaration and Platform for
Action - Fourth World Conference on Women, 1995, Articles 1, 3, 6 and 18(2)
of the Convention on the Rights of the Child, apart from Articles 2, 5(b),

580
11(2)(a), 12(2) and 16 of the Convention on the Elimination of all Forms of
Discrimination against Women, 1979. With reference to the above, she
contends that, to most of the international treaties, India is a signatory and that
it is obligatory for the country to honour those commitments, without taking
shelter under statute law. The learned counsel contends that right of women to
fertility or to have children is an integral part of her empowerment. In that
regard, she has drawn my attention to certain aspects pertaining to women and
child protection in Millennium Development Goals, 2000, adopted at the UN
Millennium Summit, 2000, as well as to Articles 1, 2(1), 3, 4 (4) and 6(7), and
the preamble of Maternity Protection Convention, 2000.

11. Having copiously quoted from international covenants, the learned counsel
has contended that when the municipal law is silent, the international
covenants and treaties can be made applicable. In this regard, the learned
counsel has relied on Lotus Case, 1927 (France v. Turkey) decided by the
Permanent Court of International Justice (PCIJ) and Vishaka v. State of
Rajasthan1.

12. Referring to Sections 3(b), 5, 27 and 28 of the Maternity Benefit Act,

1961, the learned counsel would contend that the very Act does not maintain
any distinction between maternity by way of natural process and by way of
ART. According to her, denying the petitioner the maternity 1 (1997) 6 SCC
241 benefit is an instance of invidious discrimination affecting her
fundamental right as a woman. In that regard, the learned counsel has drawn
my attention to Articles 21 and 42 of the Constitution of India.

13. The learned counsel for the petitioner has contended that with the
changing times, statutes should be broadly interpreted to keep pace with the
march of time. In that regard, the learned counsel has relied on Laxmi Video
Theatres v. State of Haryana2.

14. The learned counsel has drawn my attention to a decision of the Hon'ble
Madras High Court Kalaiselvi v. Chennai Port Trust3 to underline the need
and necessity of providing the maternity benefits to the genetic mother as well.
She has referred to Rule 18(1)(b) of the All India Service (Leave) Rules, 1955,

581
to underline the factum that the Union Government permits even paternity
leave. 2 (1993) 3 SCC 715 3 2013 (2) KLT 567

15. Finally, the learned counsel has submitted that Rule 52 of Kerala
Livestock Development Board Limited Staff Rules & Regulations, 1993,
provides for Extraordinary Leave and that the petitioner ought to have been
sanctioned the said extraordinary leave without any loss of pay.

16. Thus, summing up her submissions, the learned counsel for the petitioner
has urged this Court to allow the writ petition, with a direction to the first
respondent to provide all maternity benefits to the petitioner, as if she had
undergone the process of pregnancy and had been delivered of a baby.

Respondents:

17. Smt.Sumathi Dhandapani, the learned Senior Counsel for the respondent
Board, has strenuously opposed the claims and contentions of the petitioner.
She has submitted that, though the petitioner, holding a key post, has not
completed her probation, she has gone on leave unauthorized with an excuse
that she has to take care of a newborn baby. The learned Senior Counsel has
further submitted that in the face of its own Regulations having statutory
force, the respondent Board is not bound by the provisions of the Maternity
Benefit Act.

18. In tune with the counter affidavit filed by the respondent Board, the
learned Senior Counsel has contended that as per the Staff Rules and
Regulations, a female employee is entitled to 180 days' maternity leave, but it
cannot be provided on the grounds other than those specified under Clauses 44
and 50 of the Regulations. According to her, Rule 50, which exclusively deals
with maternity leave, does not provide for leave in the case of surrogacy.

19. Expatiating on her submissions, the learned Senior Counsel has contended
that in the case of gestational surrogacy, the biological mother does not carry
the pregnancy and give birth to the child. In the present instance, since the

582
petitioner has undergone neither pregnancy nor delivery of child, she is not
entitled to any maternity benefits, which include leave as well.

20. Adverting to the Associated Reproductive Technology (Regulation) Bill,

the learned Senior Counsel has submitted that as it has not yet been made into
law, no provision of the said Bill can be enforced. According to her, the very
object of granting maternity leave is for the health and safety of the foetus, as
well as the mother, during the advanced stages of pregnancy and for
restoration of the mother's health post-delivery.

21. The learned Senior Counsel has also underlined the fact that despite what
is said to be the disentitlement of the petitioner to have any maternity leave,
the respondent Board has been considerate enough in granting 62 days of
extraordinary leave to the petitioner. She has also further contended that as the
first respondent Board is a Government of Kerala undertaking, the provisions
of the All India Services (Leave) Rules, 1955, have no application. In the same
vein, the learned Senior Counsel repelled the contention of the petitioner as to
the applicability of Article 42 of the Constitution of India.

22. Placing reliance on Union of India v. C. Krishna Reddy4, the learned

Senior Counsel has submitted that a mandamus can be granted only when an
authority refuses to discharge a statutory duty imposed upon him or her.

23. To underline the nuances of surrogacy, the learned Senior Counsel has
placed reliance on Baby issue of applicability of international covenants and
conventions in the domestic sphere, the learned Senior Counsel has placed
reliance onGramophone Co. of India Ltd. v. Birendra Bahadur Pandey6.

4 AIR 2004 SC 1194 5 (2008) 13 SCC 518 6 (1984) 2 SCC 534

24. The learned Senior Counsel has contended that unless the statute permits,
Courts would not be willing to grant relief merely on ethical or moral
considerations. In that regard, she has placed reliance on A. Arulin Ajitha Rani
v. Principal, Film and Television Institute of Tamil Nadu7 and Nasiruddin v.
Sita Ram Agarwal8.

583
25. Finally, the learned Senior Counsel has placed reliance on Z. v. A
Government Department, as reported in [2014] EUECJ C-363/12, to highlight
that under similar circumstances European Court of Justice has refused to
grant relief to a biological mother. Thus, summing up her submissions, the
learned Senior Counsel has urged this Court to dismiss the writ petition as
devoid of any merit.

26. Heard Dr.Thushara James, the learned counsel for the petitioner and
Mrs.Sumathi Dhandapani, the learned Senior Counsel for the respondent
Board, apart from perusing the record.

7 AIR 2009 MADRAS 7 8 (2003) 2 SCC 577 Issues:

i. Whether the petitioner is entitled to maternity leave, having had a child

through the process of surrogacy, she herself being the genetic or biological
mother?

ii. Whether, in the face of a particular legislative field having been occupied
by an extant domestic enactment, the International Law conventions and treaty
obligations can be enforced through Municipal Courts?

iii. Whether the dichotomy in maternity is admissible, so that pre-natal and

post-natal periods can be viewed distinctly in relation to two different women?
Discussion:

In re: Issue No.1

27. The issues of surrogacy and the dichotomous motherhood have their birth
pangs as nascent aspects of law; they seek to be reared in the cradle of
common law, i.e., case law, in the absence of the comfort of the statute law.

28. The issue is simple: the petitioner, being the genetic mother
commissioning a surrogate to bear her child, sought maternity leave as if she
underwent the maternity, for her child rearing is as vital as child bearing.

584
29. An effort is made to decide the issue within the statutory scheme, if at all,
governing the issue, without ad hominem considerations. Indeed, both the
learned counsel have made extensive references to international covenants and
treaties, as well as case law; all of them have been referred to while
reproducing their submissions. For adjudicatory purposes referring many of
them may not be necessary, but they have faithfully been adverted to only to
underline the diligent efforts made by both the learned counsel in assisting the
Court on deciding an issue which is, more or less, res integral.

30. In Baby Makers, (Harper Collins India, 2014), a study on surrogacy in

India, the author, Gita Aravamudan, poses a question thus: "Woman, womb,
mother ... in our minds, the creation, sustenance and nurturing of life hinges
on the blending of these words into synonymity. But does being a 'mother'
necessarily include the whole gamut of actions like conceiving, carrying,
bearing and rearing a child? She describes the disturbing scenario in the
prologue as follows:

"Today, babies can be ordered over email, created in Petri dishes from frozen
genetic material, and grown in wombs that are considered to be nothing more
than gestational vessels . Today, human eggs are traded like any other
commodity and fertile women sell their eggs to sterile women for the creation
of babies to whom they are not genetically related."

31. Even in the absence of statutory frame work, surrogacy in India is not
illegal, thus the country becoming a favorite destination for international
destitutes of children. Before referring to the specifics, it is appropriate to
appreciate the essential terminology employed in this field. Going by the
glossary provided in 'Baby Makers' (Harper Collins), Gestational Surrogacy
(GS) is a treatment process in which another woman, known as the gestational
surrogate, undergoes the embryo transfer process and then carries the
pregnancy to term. GS may be achieved with the intending mother's eggs or
with eggs from a donor. Artificial Insemination Surrogacy (AIS) occurs when
a surrogate mother becomes pregnant after being inseminated with sperm.
After the birth, the surrogate mother relinquishes all parental rights and the
child is given to the person(s) whose baby she carried. The Assisted

585
Reproductive Technology (ART) comprises a group of therapies that
manipulates the egg and/or sperm and/or early conception in order to establish
a sustainable pregnancy. These procedures all stem from the basic IVF
process.

32. In Baby Manji Yamada v. Union of India9 the Hon'ble Supreme

Court, apart from tracing the etymological roots of surrogacy, has delineated
different types of 9 (2008) 13 SCC 518 surrogacy, such as traditional
surrogacy (also known as the Straight method), gestational surrogacy (also
known as the Host method), which is the case here, altruistic surrogacy, and
commercial surrogacy.

33. As stated above, the petitioner and her husband, being childless for more
than two decades, had a baby through gestational surrogacy and took custody
of the baby on the very day of birth in terms of the surrogacy agreement. The
petitioner, being an executive in the first respondent Board, has applied for
maternity leave. The employees of the first respondent Board are governed by
the provisions of the Kerala Livestock Development Board Limited Staff
Rules & Regulations, 1993 ('the Staff Rules' for brevity). Chapter IV of the
Staff Rules deals with Leave Rules, which mandate that leave cannot be
claimed as a matter of right, and that under exigent circumstances, the leave
sanctioning authority has the discretion to refuse, postpone, curtail or revoke
leave of any description and/or to recall to duty any employee on leave. The
kinds of leave that can be provided are: Casual Leave, Compensation Leave,
Special Casual Leave, Earned Leave, Half Pay Leave, Maternity Leave,
Special Disability Leave, Extra Ordinary Leave and Study Leave. Rule 50
provides for maternity leave as under:

"MATERNITY LEAVE:

i. Maternity leave may be granted to a female employee, not covered by the

ESI Act, up to 90 days from the date of commencement of leave.

ii. Maternity leave for a period not exceeding 42 days may be granted in case
of miscarriage including medical termination of pregnancy.

586
iii. Application for Maternity leave should be supported by medical certificate
from a Government Medical Officer or Medical Practitioner registered in Part-
A/Class-A of the Register of Modern Medicines, Indigenous Medicines or
Homoeopathic Medicines.

iv. Maternity leave may be combined with leave of any kind other than casual
leave and special casual leave. Leave applied for in continuation of the
Maternity leave may be granted for the continued medical attention of the
mother or child. Application for the continuation of such leave should be
supported by a medical certificate.

v. Maternity leave under this rule shall not be allowed if the employee has
three or more living children.

vi. An employee on Maternity leave will be eligible to draw during the period
of leave, the full pay and allowances at the rate she had been drawing prior to
her proceeding on Maternity leave.

(Emphasis added)

34. Rule 50 of the Staff Rules, as can be seen, clearly provides for leave up to
ninety days from the date of commencement of maternity leave. Maternity
benefit is admissible to insured women in the event of confinement or
miscarriage etc., for twelve weeks and the rate of about hundred percent of the
wages. It also specifies that maternity benefit is admissible in the case of
confinement and also in the case of miscarriage. This benefit is also
admissible for sickness arising out of pregnancy/ miscarriage or confinement
for a specified period, additionally. The rate of this benefit is equal to or a
little more than the wages i.e. double the standard benefit rate. Maternity
benefit continues to be payable even in the death of an insured woman during
her delivery or immediately following the date of her delivery leaving behind
a child , for the whole of that period and in case the child also dies, during the
said period, until the death of the child.

35. Now, we may examine the statutory scheme of the Maternity Benefit Act,
1961 ('the Act' for brevity), which is both literally and figuratively the parent

587
enactment. It is an Act to regulate the employment of women in certain
establishments for certain periods before and after the child-birth and to
provide maternity benefit and certain other benefits.

36. In terms of Section 2 of the Act, it applies, in the first instance, to every
establishment being a factory, mine or plantation; to every shop or
establishment within the meaning of any law for the time being in force in
relation to shops and establishments in a State, in which ten or more persons
are employed, or were employed, on any day of the preceding twelve months.
In fact, by way of proviso, it is provided that the State Government may, with
the approval of the Central Government, after giving not less than two months'
notice of its intention of so doing, by notification in the Official Gazette,
declare that all or any of the provisions of this Act shall also apply to any other
establishment or class of establishments, industrial, commercial, agricultural
or otherwise. There is no gainsaying the fact that the Staff Rules of the first
respondent Board are applied within the statutory framework of the Act.

37. Section 3 of the Act, the lexical provision, defines "delivery" as the birth
of a child, and "maternity benefit" as the payment referred to in sub-section (1)
of Section 5. It also defines "miscarriage", which need not be referred to in the
present context.

38. Section 4 of the Act prohibits employment of, or work by, women during
certain periods of pregnancy. Section 5 declares the right of the employee to
payment of maternity benefit at a specified rate, apart from specifying the
maximum period of leave that can be granted. Sections 5A and 5B provide for
the payment and of maternity benefit and its continuance in certain specified
cases. Section 6, in turn, elaborates on Section 5 as to the manner of payment
of the maternity benefit. Section 9 provides for the leave on miscarriage; and
Section 10, for leave during illness arising out of pregnancy, delivery,
premature birth of child, or miscarriage.

39. It can be seen that the Act focuses on conception, gestation and delivery. It
intends to protect the health of the pregnant woman and collaterally the in-
vitro child. The leave is not for bringing up the child. If it were so, a leave of a

588
few days and compensation of a few thousand rupees are woefully inadequate
to serve the said purposes.

40. Section 11 deals with nursing breaks, and it is as follows:

"11. Nursing Breaks: Every woman delivered of a child who returns to duty
after such delivery shall, in addition to the interval for rest allowed to her, be
allowed in the course of her daily work two breaks of the prescribed duration
for nursing the child until the child attains the age of fifteen months."

41. During the post-natal period, we may observe, apart from having leave for
the purpose of convalescing from the labour related health deficiencies, the
mother can also have nursing breaks, which are of short duration. Any
provision, analogous to Rule 3-A of Madras Port Trust (Leave) Regulations,
1987, as seen in Kalaiselivi, which is discussed more elaborately below, is not
to be found either under the Act or the Staff Rules.

42. Indeed, there cannot be any discrimination regarding the genetic mother in
extending the statutory benefits to the extent they are applicable, as is evident
from the discussion on issue No.3 below.

In re: Issue No.2:

International Law vis-`-Vis Municipal Law:

43. If we examine Convention No.183 of International Labour Organisation,

to which India is a signatory, by way of revision of the Maternity Protection
Convention (Revised), 1952, the General Conference of the ILO issued
guidelines in its 88th Session on 30th May, 2000. A perusal of those
provisions amply establishes that maternity has been viewed holistically and
more emphasis has been laid on pregnancy and child birth.

44. Indeed, the Assisted Reproductive Technologies (Regulation) Bill, 2010, is

still nebulous and has not attained a concrete shape of a statute to have any
enforceability. The provisions, at best, remain the intention of the legislature
without enforceability. A reference to that does not yield any result. At any

589
rate, as a matter of apophasis, if we look at Chapter VII thereof, it yields
nothing in the manner of maternity leave.

45. The Universal Declaration of Human Rights, 1948, inter alia, declares that
motherhood and childhood are entitled to special care and assistance. All
children, whether born in or out of wedlock, shall enjoy the same social
protection. In terms of the Convention on the Rights of Child, Article 3 thereof
mandates that in all actions concerning children, whether undertaken by public
or private social welfare institutions, courts of law, administrative authorities
or legislative bodies, the best interests of the child shall be the primary
consideration. The nations are required to take all appropriate legislative and
administrative measures. Article 6 focuses on the development of child.

46. The learned counsel for the petitioner has placed reliance on Laxmi Video
Theatres v. State of Haryana10 to stress the need of dynamic and progressive
interpretation of statutes. In this case the question that fell 10 (1993) 3 SCC
715 for consideration was whether a video parlor wherein a pre-recorded
cassette of a cinematograph film is exhibited through the medium of
VCR/VCP falls within the ambit of the definition of 'cinematograph', as
contained in the Cinematograph Act, 1952, etc. In that context, the Hon'ble
Supreme Court has observed thus:

"7. We are in agreement with this view. The definition of the expression
`cinematograph' contained in Section 2(c) of the Cinematograph Act, 1952 and
Section 2(a) of the Act is an inclusive definition which includes any apparatus
for representation of moving pictures or series of pictures. The said definition
cannot be confined in its application to an apparatus for representation of
moving pictures or series of pictures which was known on the date of the
enactment of the said provision. It must be given a meaning which takes into
account the subsequent scientific developments in the field in accordance with
principle of statutory construction laid down in Senior Electric Inspector v.
Laxmi Narayan Chopra5. In that case it has been held --

"[I]n a modern progressive society it would be unreasonable to confine the

intention of a Legislature to the meaning attributable to the word used at the

590
time the law was made, for a modern Legislature making laws to govern a
society which is fast moving must be presumed to be aware of an enlarged
meaning the same concept might attract with the march of time and with the
revolutionary changes brought about in social, economic, political and
scientific and other fields of human activity. Indeed, unless a contrary
intention appears, an interpretation should be given to the words used to take
in new facts and situations, if the words are capable of comprehending them."

47. The learned counsel for the petitioner has contended that there is no bar on
applying the international covenants or treaties in the domestic sphere, so long
as there is no Municipal Law that expressly prohibits their application. In that
regard, she has relied on Lotus Case, 1927 (France v. Turkey) decided by the
Permanent Court of International Justice (PCIJ).

48. In this celebrated case on International Law, the facts are that a collision
occurred on the high seas between a French vessel and a Turkish vessel.
Victims were Turkish nationals and the alleged offender was French. The
question was whether Turkey could exercise its jurisdiction over the French
national under international law? Turkey, having arrested, tried and convicted
a foreigner (a French national) for an offence which he is alleged to have
committed outside her territory, claimed that it had been authorized to do so
by reason of the absence of a prohibitive rule of international law. In that
context, the plea of Turkey was that under international law everything which
is not prohibited is permitted. In other words, the contention is that under
international law every door is open unless it is closed by treaty or by
established Custom. This plea was accepted by the Permanent Court of
International Justice. I regret my inability to see any application of the ratio of
the above case in the present factual matrix, here the adjudication is not inter-
state to invoke the default principle of international law.

49. In Vishaka v. State of Rajasthan11 the Hon'ble Supreme Court has held
that any International Convention not inconsistent with the fundamental rights
and in 11 (1997) 6 SCC 241 harmony with its spirit must be read into the
domestic legislation to enlarge the meaning and content thereof, so as to
promote the object of the constitutional guarantee. The executive power of the

591
Union is, therefore, available till the Parliament enacts legislation to expressly
provide measures needed to curb the evil.

Monism and Dualism

50. Before considering the international covenants cited at the Bar by the
learned counsel for the petitioner, it is pertinent to examine the concepts
regarding the nation's treaty obligations vis-`-vis Municipal Law, with
reference to the jurisprudential concepts of Monism and Dualism in the sphere
of International Law. According to Parry & Grant's Encyclopedic Dictionary
of International Law (Oxford, 3rd Edn.), those concepts have been defined
thus:

"Monism: `Monists believe that international and domestic law form one legal
system and that international law is hierarchically superior. Provisions of
international law would thus override conflicting provisions of domestic law':
von Glahn and Taulbee, Law among Nations (8th ed.), 124. `Since
international law' can thus be seen as essentially part of the same legal order as
municipal law, and as superior to it, it can be regarded as incorporated in
municipal law, giving rise to no difficulty in principle in its application as
international law within states:' I Oppenheim 54. Cf. dualism.

Monism thus defined, very much in accordance with the views of Hans
Kelsen, presents real theoretical and practical difficulties, not least in
reconciling it with State sovereignty and the actual practice of States. Cassese,
International Law (2nd ed.), 216 provides a modern assessment of monism:
`The Kelsenin monistic theory, and admirable theoretical construction was in
advance of its time; in many respects it was utopian and did not reality of
international relations. However, for all its inconsistencies and practical
pitfalls, it had a significant ideological impact. It brought new emphasis to the
role of international law an s controlling factor of State conduct.' For a brief
account of the history of monistic though, see O' Connell, International Law
(1965),Vol.1,38-

41. Dualism: The theory according to which `international law and the internal
law of states are totally separate legal systems. Being separate systems

592
international law would not as such form part of the internal law of a state: to
the extent that in particular instances rules of international law may apply
within a state they do so [by] virtue of their adoption by the internal law of the
state, and apply as part of that internal law and not as international law. Such a
view avoids any question of the supremacy of the one system over the other
since they share on common field of application: each is supreme in its own
sphere': I Oppenheim 53.

(Emphasis original)

51. Jurisprudentially India is Dualistic, but Article 51

(C) exhorts the nation to respect the international covenants. On the other
hand, Article 253 speaks of Parliament's power to give effect to International
conventions. Contradistinguished, the USA is Monistic in terms of Article VI
of the American Constitution. When we consider the value of the International
Covenants in Municipal Courts, it is to be observed that it has no direct
binding effect on the Municipal Law of the State, the reason being that treaties
are made by the executive as per Article 53, but the laws are made by the
legislature. In other words, in the absence of any constitutional provision like
Article VI of the American Constitution, insistence on the automatic
engrafting of International Law to Internal Law falls foul of the doctrine of
separation of powers.

52. At any rate, while interpreting any constitutional provision, in terms of

Article 367(1), it is required to be interpreted like a statute, liberally, rather
than with 'the austerity of tabulated legalism'. In fact, over the time, the
Hon'ble Supreme Court has observed that the interpretation of the internal law
shall be imbued with the spirit of international law covenant, when the
domestic law is uncertain or ambiguous; when the common law is uncertain or
incomplete; when there is an occasion to exercise discretion by the Courts;
when the matters of public policy are before the Courts; when the Convention
is part of community law; and when, lawfulness of the exercise of
administrative discretion is being considered.

593
53. In Gramophone Co. of India Ltd. v. Birendra Bahadur Pandey12, under
Copy Right Act, 1957, the 12 (1984) 2 SCC 534 expression 'Import' has fallen
for interpretation. The question required to be decided was whether copy
righted material in transit via India could be termed as 'import' falling within
the mischief of the municipal law. The Hon'ble Supreme Court has examined
two questions: first, whether international law is, of its own force, drawn into
the law of the land without the aid of municipal statute, and second, whether,
so drawn, it overrides municipal law in case of conflict and held as follows:

"5. There can be no question that nations must march with the international
community and the municipal law must respect rules of international law even
as nations respect international opinion. The comity of nations requires that
rules of international law may be accommodated in the municipal law even
without express legislative sanction provided they do not run into conflict with
Acts of Parliament. But when they do run into such conflict, the sovereignty
and the integrity of the Republic and the supremacy of the constituted
legislatures in making the laws may not be subjected to external rules except
to the extent legitimately accepted by the constituted legislatures themselves.
The doctrine of incorporation also recognizes the position that the rules of
international law are incorporated into national law and considered to be part
of the national law, unless they are in conflict with an Act of Parliament.
Comity of nations or no, municipal law must prevail in case of conflict.
National courts cannot say yes if Parliament has said no to a principle of
international law. National courts will endorse international law but not if it
conflicts with national law. National courts being organs of the national State
and not organs of international law must perforce apply national law if
international law conflicts with it. But the courts are under an obligation
within legitimate limits, to so interpret the municipal statute as to avoid
confrontation with the comity of nations or the well established principles of
international law. But if conflict is inevitable, the latter must yield."

54. In Selvi v. State of Karnataka13, a three-Judge Bench of the Hon'ble

Supreme Court has observed in paragraph 373 thereof that even though India
is a signatory to a particular Convention, so long as it has not been ratified by

594
Parliament in the manner provided under Article 253 of the Constitution and
so long as we do not have a national legislation, which has provisions
analogous to those 13 (2010) 7 SCC 263 of the Convention, its automatic
enforcement does not arise. It is, however, further held that the Convention
has significant persuasive value since it represents an evolving international
consensus on the nature and specific contents of human rights norms.

55. In W.B. v. Kesoram Industries Ltd.14 at page 401, a Constitution Bench of

the Hon'ble Supreme Court has held thus:

"It is true that the doctrine of "monism" as prevailing in the European

countries does not prevail in India. The doctrine of "dualism" is applicable.
But, where the municipal law does not limit the extent of the statute, even if
India is not a signatory to the relevant international treaty or covenant, the
Supreme Court in a large number of cases interpreted the statutes keeping in
view the same."

56. In the face a particular legislative field having been occupied by an extant
domestic enactment, the International Law conventions and treaty obligations
cannot be enforced through Municipal Courts, though they have 14 (2004) 10
SCC 201 considerable persuasive value in interpreting the Municipal Law.

In Re: Issue No.3:

57. The gravamen of the submissions of the learned counsel for the petitioner
is that motherhood is an integral and inherent part of womanhood and that
with advanced reproduction techniques, one cannot cling on to the traditional
meaning of maternity. She also contends that there ought not to be any
discrimination on account of woman getting a child through surrogacy, for all
practical purposes, that woman shall be treated as the natural biological
mother with all the rights flowing from the acceptance of the said factum,
unhindered. All the international covenants and the domestic declarations only
go to establish that there ought not be any discrimination based on the method
of maternity, or in other words, merely on the ground that the mother did not
actually bear the child in her womb. This being the underlining theme, this

595
Court is prepared to accept, at least polemically, the entire proposition of law
as projected by the learned counsel for the petitioner, as it were, and is further
prepared to examine what should follow in such an eventuality.

58. Sufficient discussion has already been made on the issue of the impact of
international law in the domestic sphere. Now, the proposition is that a genetic
mother is required to be placed on the same pedestal as the natural, biological
mother is placed, or as Oprah Winfrey has said, "Biology is the least of what
makes someone a mother". Indeed, from Darwin's 'On Origin of Species' to
Richard Dawkin's `The Selfish Gene', the Cardinal Principle of Evolution is
observed to be that every senescent being craves to perpetuate its progeny, we
the humans being no exception. In this case, as a matter of legal fiction, if the
petitioner is to be treated as the woman who has undergone the pregnancy and
has been delivered of the baby, what rights accrue to her?

59. Taking this legal fiction a little further, we have to inevitably confront the
dichotomy of the maternity - pre and post natal. Admittedly, the petitioner has
not undergone any pre-natal phase, which in fact was undergone by the
surrogate mother, whose rights are not in issue before this Court. From day
one, after the delivery, the petitioner is required to be treated as the mother
with a newborn baby. Thus, without discriminating, it can be held that the
petitioner is entitled to all the benefits that accrue to an employee after the
delivery, as have been provided under the Act or the Staff Rules. Nothing
more; nothing less, for the petitioner cannot compel the employer to place her
on a higher pedestal than a natural mother could have been placed, after
undergoing the pregnancy. Kalaiselvi:

60. It is pertinent to refer to Kalaiselvi (supra), a decision rendered by the

High Court of Madras. In this case, which was made the sheet-anchor for the
arguments of the learned counsel for the petitioner, Rule 3-A of Madras Port
Trust (Leave) Regulations, 1987 has fallen for consideration. This Rule deals
with leave to female employees on her adopting a child. The question sought
to be addressed was whether a woman employee working in the respondent
Port Trust was entitled to avail herself of maternity leave, to be precise 'child-
care leave' even in case where she got a child through an arrangement of

596
surrogacy. A learned Single Judge of the Hon'ble High Court of Madras
likened the obtaining of a child through surrogacy to adoption and held that
the benefit of Rule 3-A ought to be extended to the said employee as well.
Referring to All India Services (Leave) Rules, 1955, it is observed that the
Central Government has recognized even paternity leave to be granted.

61. In my considered view, the High Court of Madras has justly interpreted
Rule 3-A expansively to take into the fold of adoption even the child obtained
through surrogacy. Thus, the court has declared that a female employee on her
getting a child through surrogacy, instead of adoption, be granted leave of the
kind and admissible (including commuted leave without production of medical
certificate for a period not exceeding 60 days and leave not due) up to one
year subject to the conditions provided in the Rule itself.

62. I am afraid, there is no analogous provision in the Staff Rules governing

the petitioner; as such, notwithstanding the valiant efforts of the learned
counsel for the petitioner, I am unable to persuade myself to hold that
Kalaiselvi (supra) has any relevance in the present factual and legal matrix.
True, the All India Services (Leave) Rules, 1955, provide for paternity leave
under Rule 18 thereof, but they do not have any application to the respondent
Board. It is the extant Rule or Regulation that can be enforced, but this Court
cannot legislate in the name of either interpretation or application of law
occupying some other filed as a matter of parity involving analogous
situations.

63. In A.Arulin Ajitha Rani v. Principal, Film and Television Institute of

Tamil Nadu15, a student of the institute could not secure minimum attendance
of 80% owing to her pregnancy. The question that fell for consideration was
whether the denial of benefit of maternity leave offends the provisions of the
Convention on the Elimination of all Forms of Discrimination against Women
and also Maternity Benefit Act. Holding that Educational Institutions stand on
a different footing from Companies, the learned Division Bench of the High
Court of Madras has held that it is essentially a policy matter left to the
wisdom of legislature.

597
64. In Nasiruddin v. Sita Ram Agarwal16, the issue is the application of
Section 5 of Limitation Act to condone 15 AIR 2009 MADRAS 7 16 (2003) 2
SCC 577 the delay in depositing rent by the tenant in terms of the direction of
a Court under Control of Rent and Eviction proceedings. Their Lordships have
held that in a case where the statutory provision is plain and unambiguous, the
court shall not interpret the same in a different manner, only because of harsh
consequences arising there from.

65. In Union of India v. C. Krishna Reddy17, the issue is concerning the

norms for giving reward for information passed on to the custom authorities. It
is held that the Court cannot ask the authorities to travel beyond the guidelines
on any issue and provide relief there for. In that context, relying on earlier
pronouncements, it is observed thus:

"13. It is well settled by a catena of decisions of this Court that a writ of

mandamus can be granted only in a case where there is a statutory duty
imposed upon the officer concerned and there is a failure on the part of that
officer to discharge the statutory obligation. The chief function of the writ is to
compel performance of public duties 17 (2003) 12 SCC 627 prescribed by
statute and to keep subordinate tribunals and officers exercising public
functions within the limit of their jurisdiction. Therefore, in order that a
mandamus may issue to compel the authorities to do something, it must be
shown that there is a statute which imposes a legal duty and the aggrieved
party has a legal right under the statute to enforce its performance."

66. The learned Senior Counsel for the respondent Board has drawn my
attention to a decision, rendered by the Court of Justice of European Union,
involving maternity leave to a mother who, as a genetic parent, obtained a
baby through surrogacy. Z. v. A Government Department, as reported in
[2014] EUECJ C-363/12, the issue was with regard to the Social policy of
equal treatment of male and female workers as contained in the Directive
2006/54/EC of United Nations Convention on the Rights of Persons with
Disabilities. Ms.Z, a commissioning mother, a post-primary school teacher in
Ireland, who has had a baby through a surrogacy arrangement, has been
refused paid leave equivalent to maternity leave or adoptive leave. Seeking

598
what is termed as equal treatment in employment and occupation by way of
prohibition of any discrimination on the ground of disability, the
commissioning mother questioned her employer's refusal to provide her paid
leave.

67. In November 2010, Ms.Z brought an action against the Government

Department before the Equality Tribunal that the Government Department had
failed to reasonably accommodate her as a person with disability, and that the
Government Department had refused to provide her with paid leave equivalent
to maternity or adoptive leave, although she had undergone in-vitro
fertilization treatment. In those circumstances, the Equality Tribunal decided
to stay the proceedings and to refer the matter to the Court of Justice for a
preliminary ruling on whether there is discrimination on the ground of sex
where a woman - whose genetic child has been born through a surrogacy
arrangement, and who is responsible for the care of her genetic child from
birth - is refused paid leave from employment equivalent to maternity leave
and/or adoptive leave?

68. Article 16 of that directive, headed 'Paternity and Adoption Leave', states:

"This Directive is without prejudice to the right of Member States to recognize

distinct rights to paternity and/or adoption leave. Those Member States which
recognize such rights shall take the necessary measures to protect working
men and women against dismissal due to exercising those rights and ensure
that, at the end of such leave, they are entitled to return to their jobs or to
equivalent posts on terms and conditions which are no less favorable to them,
and to benefit from any improvement in working conditions to which they
would have been entitled during their absence."

69. The Court of Justice of EU considered whether there is any invidious

discrimination in providing the maternity leave to one gender and denying it to
the other. The Justices have held that under identical circumstances once a
commissioning father is not entitled to any maternity or adoptive leave, a
woman, too, cannot claim it. The reasoning goes thus:

599
"[A] commissioning father who has had a baby through a surrogacy
arrangement is treated in the same way as a commissioning mother in a
comparable situation, in that he is not entitled to paid leave equivalent to
maternity leave either. It follows from this that the refusal of Ms. Z's request is
not based on a reason that applies exclusively to workers of one sex.

...

As regards the indirect discrimination referred to in Article 2(1)(b) of

Directive 2006/54, it must be noted that there is nothing in the file in the case
to establish that the refusal to grant the leave at issue puts female workers at a
particular disadvantage compared with male workers."

70. It has eventually held that Article 16, read in conjunction with recital 27 in
the preamble to Directive 2006/54, makes it clear that the directive preserves
the freedom of the Member States to grant or not to grant adoption leave, and
that the conditions for the implementation of such leave, other than dismissal
and return to work, are outside the scope of that directive. Thus, the ratio of
the EU Court boils down to this: it is the domestic law that should govern the
issue.

71. In the absence of any leave provided for bringing up a child, this Court
cannot direct the first respondent Board to provide any leave to the petitioner
for that purpose. In fact, the respondent Board has been considerate enough to
allow the petitioner to go on extraordinary leave for a specified period.

72. The relief sought by the petitioner reads thus: "To direct the first
respondent to grant leave to the petitioner on equal footing in terms of Rule 50
of the Staff Rules and Regulations applicable to the staff and officers of the
first respondent which benefit was granted to employees who got child[ren]
under normal circumstances."

73. I do not see any difficulty in acceding to the above prayer, provided the
dichotomy is applied and only the benefit, namely, the leave that can be given
post- delivery, is extended. Admittedly, the petitioner did not physically bear
the child; as such, she cannot insist on having any leave for convalescing and

600
regaining her health. For child rearing, no specific provision is made a la Rule
3-A of Madras Port Trust (Leave) Regulations, 1987. Resultantly, the only
option left for the petitioner is to avail her of leave under other heads, as has
been specified under Rule 44 of the Staff Rules. In fact, it has already been
noted that the petitioner has been given extraordinary leave, as a special case.

74. Thus, to conclude, this Court declares that there ought not to be any
discrimination of a woman as far as the maternity benefits are concerned only
on the ground that she has obtained the baby through surrogacy. It is further
made clear that, keeping in view the dichotomy of maternity or motherhood,
the petitioner is entitled to all the benefits an employee could have on post-
delivery, sans the leave involving the health of the mother after the delivery.
In other words, the child specific statutory benefits, if any, can, and ought to,
are extended to the petitioner.

75. It is only apt to end this exposition on motherhood with the words of
Margaret Sanger, the American Birth Control Activist and Nurse, who said:
"When motherhood becomes the fruit of a deep yearning, not the result of
ignorance or accident, its children will become the foundation of a new race."

With the above observations, the writ petition stands disposed of. No order as
to costs.Dama Seshadri Naidu, Judge tkv

7.1.4

K.Kalaiselvi vs Chennai Port Trust on 4 March, 2013

From referring to the practice in the Australia where surrogacy was

never treated as legal and in U.K., where ... surrogacy arrangement was legal,
but advertising and other aspects of commercial surrogacy was prohibited
under the Surrogacy Arrangements

Madras High Court K.Kalaiselvi vs Chennai Port Trust on 4 March, 2013

601
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 04.03.2013

CORAM

THE HONOURABLE MR.JUSTICE K.CHANDRU

W.P.No.8188 of 2012 and M.P.Nos.1 and 2 of 2012

K.Kalaiselvi ……………….Petitioner

Vs.

Chennai Port Trust,

rep by the Chairman,

1,Rajaji Salai,

Chennai-600 001. ……………. Respondent

This writ petition is preferred under Article 226 of the Constitution

of India praying for the issue of a writ of certiorarified mandamus to call for
the records of the respondent pertaining to the impugned letter dated
5.12.2011, quash the same and consequently to direct the respondent to grant
the petitioner herein maternity leave on equal footing with the leave granted
under Rule 3A of the Madras Port Trust (Leave) Regulations, 1987, to
adoptive mothers
For Petitioner : Mr.Srinath Sridevan
For Respondent : Mr.M.Devendran for Port Trust
ORDER

1. The short question that arises for consideration in this writ petition is
whether a woman employee working in the Chennai Port Trust is entitled to
avail maternity leave even in case where she gets the child through
arrangement by Surrogate parents?

2. The petitioner is working as an Assistant Superintendent in the Traffic

department of the Chennai Port Trust. She had put in 24 years of service. She

602
is married. Her son (Shyam Sundar) aged 20 years died die to road accident on
31.01.2009. After his birth, the petitioner has removed her uterus due to some
problem on 30.04.2008. Therefore, she in order to have a child had entered
into an arrangement with Prashanth Multispeciality hospital, Chennai to have
a baby through surrogate procedure. Finally with the consent of her husband
and his cooperation, a female baby was born on 08.02.2011 through a host
mother. She had incurred substantial expenditure towards treatment. In order
to look after the newly born baby, she had applied for maternity leave. But she
was informed that she was not entitled for maternity leave (post delivery) for
having a child through surrogate procedure though such a rejection was not
possible in case of a person adopting a child. The petitioner, therefore,
requested for sanction of maternity leave to look after the newly born girl
child and reimburse the medical expenses and also to issue the FMI Card
incorporating the newly born child through her representation, dated
17.6.2011. She sent a reminder on 13.8.2011. However, by proceedings, dated
22.11.2011, she was informed that the Chairman of the Port Trust had granted
her two months period leave as a special case, which will be treated as an
eligible leave. But the leave granted on 17.9.2011 for a period of 59 days from
08.02.2011 to 07.04.2011 vide medical certificate dated 17.09.2011 was
subsequently cancelled. Her request for inclusion of the female child in the
FMI card was also rejected. She was informed by a letter dated 05.12.2011
that inclusion of her daughter name G.K.Sharanya in the FMI Card does not
arise. The petitioner produced before the respondent Port Trust all documents
relating to surrogate arrangement, hospital expenditures incurred by her as
well as the birth certificate given by the Corporation of Chennai evidencing
that the female child was born on 08.02.2011. The name of the parents is
described as the petitioner being the mother and her husband as her father. It is
under these circumstances, writ petition came to be filed seeking to set aside
the order dated 05.12.2011 and for a consequential direction to the Chennai
Port Trust to grant leave to the petitioner on equal footing in terms of Rule 3-
A of the Madras Port Trust (Leave) Regulations, 1987, which benefit was
granted to adoptive parents.

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3. In order to appreciate the contentions, it is necessary to extract Rule 3A,
which reads as follows:

"3-A.Leave to female employees on adoption of a child:

A female employee on her adoption a child may be granted leave of the kind
and admissible (including commuted leave without production of medical
certificate for a period not exceeding 60 days and leave not due) up to one
year subject to the following conditions :

(I) the facility will not be available to an adoptive mother already

having two living children at the time of adoption;

(ii) The maximum admissible period of leave of the kind due and
admissible will be regulated as under:

(a)If the age of the adopted child is less than one month, leave up to one year
may be allowed.

(b)If the age of the child is six months or more, leave up to six months may be
allowed.

(c)If the age of the child is nine months or more leave up to three months may
be allowed."

4. When the writ petition came up on 28.03.2012, this court admitted the writ
petition and in the two direction applications, notice was ordered. On notice
from this court, a counter affidavit has been filed by the respondent, dated
31.5.2012.

5. The facts alleged by the petitioner regarding her marital status and the fact
of her son died in a road accident were admitted. The birth of a child through
surrogate arrangement was also admitted by the respondent. However, it was
informed that on the petitioner sending a proposal, the matter was referred to
the Ministry of Shipping and Surface Transport for clarification and
guidelines. The Ministry in their letter dated 20.9.2011 informed the Port Trust

604
that there was no provision / guidelines available in the CCS (Leave) Rules for
the grant of maternity leave to a female Government employee for looking
after her baby obtained through surrogate procedure. It was based upon the
advice given by the Ministry, the leave given to her was cancelled and it was
treated as eligible leave. Her further request to include the child in the FMI
card was also rejected and it was informed that it cannot be considered. It was
further stated that it was a peculiar case. In our Country getting a child through
surrogate procedure is at a nascent stage. There are no rules or guidelines
available. There is no provision in the Chennai Port Trust (Leave)
Regulations, 1987 granting maternity leave to an employee who underwent
surrogate procedure. No inspiration can be drawn from the Maternity Benefit
Act, 1961. Apart from referring to the practice in the Australia where
surrogacy was never treated as legal and in U.K., where surrogacy
arrangement was legal, but advertising and other aspects of commercial
surrogacy was prohibited under the Surrogacy Arrangements Act, 1985.
Strangely the respondent in paragraph 18 made the following averments:

"18.It is submitted that apart from legal, other issues such as moral, ethical,
psychological and religious are involved in surrogacy procedure. Hence, in
India a comprehensive legislation is very much the need of the hour to address
the complex legal issues related to surrogacy."

6.The question of becoming parents through surrogacy came to be considered

by the Supreme Court in a judgment in Baby Manji Yamada v. Union of
India reported in (2008) 13 SCC 518. Though in that case, there was a dispute
between biological parents and host, the matter was directed to be taken to the
Commission for Protection of Child Rights Act, 2005. But, however various
forms of surrogacy was discussed in the said judgment from paragraph 8 to 16
and it was stated as follows:

"8.Surrogacy is a well-known method of reproduction whereby a woman

agrees to become pregnant for the purpose of gestating and giving birth to a
child she will not raise but hand over to a contracted party. She may be the
child's genetic mother (the more traditional form for surrogacy) or she may be,
as a gestational carrier, carry the pregnancy to delivery after having been

605
implanted with an embryo. In some cases surrogacy is the only available
option for parents who wish to have a child that is biologically related to them.

9. The word surrogate, from Latin subrogare, means appointed to act in the
place of. The intended parent(s) is the individual or couple who intends to
rears the child after its birth.

10. In traditional surrogacy (also known as the Straight method) the surrogate
is pregnant with her own biological child, but this child was conceived with
the intention of relinquishing the child to be raised by others; by the biological
father and possibly his spouse or partner, either male or female. The child may
be conceived via home artificial insemination using fresh or frozen sperm or
impregnated via IUI (intrauterine insemination), or ICI (intracervical
insemination) which is performed at a fertility clinic.

11. In gestational surrogacy (also known as the Host method) the surrogate
becomes pregnant via embryo transfer with a child of which she is not the
biological mother. She may have made an arrangement to relinquish it to the
biological mother or father to rise, or to a parent who is themselves unrelated
to the child (e.g. because the child was conceived using egg donation, germ
donation or is the result of a donated embryo). The surrogate mother may be
called the gestational carrier.

12. Altruistic surrogacy is a situation where the surrogate receives no financial

reward for her pregnancy or the relinquishment of the child (although usually
all expenses related to the pregnancy and birth are paid by the intended parents
such as medical expenses, maternity clothing, and other related expenses).

13. Commercial surrogacy is a form of surrogacy in which a gestational carrier

is paid to carry a child to maturity in her womb and is usually resorted to by
well-off infertile couples who can afford the cost involved or people who save
and borrow in order to complete their dream of being parents. This medical
procedure is legal in several countries including in India where due to
excellent medical infrastructure, high international demand and ready
availability of poor surrogates it is reaching industry proportions. Commercial

606
surrogacy is sometimes referred to by the emotionally charged and potentially
offensive terms wombs for rent, outsourced pregnancies or baby farms.

14. Intended parents may arrange a surrogate pregnancy because a woman

who intends to parent is infertile in such a way that she cannot carry a
pregnancy to term. Examples include a woman who has had a hysterectomy,
has a uterine malformation, has had recurrent pregnancy loss or has a health
condition that makes it dangerous for her to be pregnant. A female intending
parent may also be fertile and healthy, but unwilling to undergo pregnancy.

15. Alternatively, the intended parent may be a single male or a male

homosexual couples.

16. Surrogates may be relatives, friends, or previous strangers. Many surrogate

arrangements are made through agencies that help match up intended parents
with women who want to be surrogates for a fee. The agencies often help
manage the complex medical and legal aspects involved. Surrogacy
arrangements can also be made independently. In compensated surrogacies the
amount a surrogate receives varies widely from almost nothing above
expenses to over $30,000. Careful screening is needed to assure their health as
the gestational carrier incurs potential obstetrical risks."

7.Mr.Srinath Sridevan, learned counsel for the petitioner also referred to a

judgment of the Supreme Court of California in a case relating to Anna
Johnson Vs. Mark Calvert et al., reported in 5 Cal 4th 84, wherein the court
affirmed the judgment of the lower court that genetic parents were the natural
parents of child gestated through surrogate. He also drew attention of this
court to the Universal Declaration of Human Rights evolved by the United
Nations and adopted by the General Assembly on 10.12.1948. He placed
reliance upon Article 25(2) which reads as follows:

"(2) Motherhood and childhood are entitled to special care and assistance. All
children whether born in or out of wedlock, shall enjoy the same social
protection."

607
8.He also referred to the Beijing Declaration and Platform for Action Fourth
World Conference on Women, dated 15.09.1995, wherein the right of all
women to control all aspects of their health, in particular their own fertility is
basic to their empowerment was reaffirmed. Articles 17 and 33 reads as
follows:

"17.The explicit recognition and reaffirmation of the right of all women to

control all aspects of their health, in particular their own fertility, is basic to
their empowerment;

33. Ensure respect for international law, including humanitarian law, in order
to protect women and girls in particular;"

9. He further referred to the Convention on the Rights of the Child by United

Nations General Assembly by a resolution on 20.11.1989, wherein Article
6 reads as follows:

"Article 6.

1. States Parties recognize that every child has the inherent right to life. 2.
States Parties shall ensure to the maximum extent possible the survival and
development of the child."

10. In the light of this, he submitted that the petitioner is undoubtedly the
mother of a minor girl child and she is entitled to develop bondage with the
child obtained through surrogate agreement and there is no moral issue
involved in this matter. In the interest of the child, the petitioner is entitled to
have the leave granted in her favour and in future also she is entitled to have
the name included as her daughter in the FMI card as she is the legitimate
daughter of the petitioner. He further contended that even if the rule does not
contemplate the surrogate arrangement, at the time of enacting of Maternity
Benefit Act, 1961, such a practice was not there. What was not recognized by
the law, at some point of time need not be the same in the light of the changed
situation.

608
11. He referred to a judgment of the Supreme Court in Haryana reported in
(1993) 3 SCC 715, wherein the Supreme Court read within the term
Cinematograph showing of a film under the Video cassette recorder. Though
at the time of enacting of Cinematograph in the year 1952 such a method was
never available, but still took note of the subsequent scientific development in
the field. He referred to the following passage found in paragraphs 7 and 8,
which reads as follows:

"7.We is in agreement with this view. The definition o the expression

'cinematograph' contained in Section 2(c) of the Cinematograph Act, 1952
and Section 2(a) of the Act is an inclusive definition which includes any
apparatus for representation of moving pictures or series of pictures. The said
definition cannot be confined in its application to an apparatus for
representation of moving pictures or series of pictures which was known on
the date of the enactment of the said provision. It must be given a meaning
which takes into account the subsequent scientific developments in the field in
accordance with principle of statutory construction laid down in The Senior
Electric Inspector v. Laxmi Haryana Chopra and Ors. MANU/SC/0221/1961:
[1962] 3 SCR 146. In that case it has been held-

.....In a modern progressive society it would be unreasonable to confine the

intention of a Legislature to the meaning attributable to the word used at the
time the law was made, for a modern Legislature making laws to govern a
society which is fast moving must be presumed to be aware of an enlarged
meaning the same concept might attract with the march of time and with the
revolutionary changes brought about in social, economic, political and
scientific and other fields of human activity. Indeed, unless a contrary
intention appears, an interpretation should be given to the words used to take
in new facts and situations, if the words are capable of comprehending them.
(Pp.156-157)

8. The VCR/VCP were developed in 1970s and achieve the same purpose as
the traditional media for exhibition of moving pictures. There is nothing in the
Act which excludes the applicability of the Act to VCR/VCP."

609
12.He further referred to a judgment of an another judgment in The Senior
Electric Inspector and others Vs. Laxmi Narayan Chopra reported in AIR 1962
SC 159. In that case, the Supreme Court held that the term telegraph line
found in the Indian Electricity Act, 1910 will take within itself the wire used
for the purpose of an apparatus of the post and telegraph wireless section
though legislature in the year 1885 could not have dreamt of a future
discovery of wireless telegraphy. Therefore, he wanted the Maternity Benefit
Act to be interpreted so as to grant maternity leave even for parents who gets
child through surrogacy agreement.

13. Alternatively, he contended that if law can provide child care leave in case
of adoptive parents as in the case of Rule 3-A of the Madras Port Trust
(Leave) Regulations, 1987, then they should also apply to parents like the
petitioner who obtained child through surrogate agreement since the object of
such leave is to take care of the child and developing good bond between the
child and the parents.

14. However, the learned counsel for the Port Trust contended that in the
absence of any specific legal provision, the question of this court granting
leave will not arise.

15.In the light of these rival contentions, it has to be seen whether the
petitioner is entitled for a leave similar to that of the leave provided under
Rule 3-A and whether her child's name is to be included in the FMI Card for
availing future benefits?

16. This court does not find anything immoral and unethical about the
petitioner having obtained a child through surrogate arrangement. For all
practical purpose, the petitioner is the mother of the girl child G.K.Sharanya
and her husband is the father of the said child. When once it is admitted that
the said minor child is the daughter of the petitioner and at the time of the
application, she was only one day old, she is entitled for leave akin to persons
who are granted leave in terms of Rule 3-A of the Leave Regulations. The
purpose of the said rule is for proper bonding between the child and parents.
Even in the case of adoption, the adoptive mother does not give birth to the

610
child, but yet the necessity of bonding of the mother with the adoptive child
has been recognized by the Central Government. Therefore, the petitioner is
entitled for leave in terms of Rule 3-A. Any other interpretation will do
violence to various international obligations referred to by the learned counsel
for the petitioner. Further, it is unnecessary to rely upon the provisions of the
Maternity Benefit Act for the purpose of grant of leave, since that act deals
with actual child birth and it is mother centric. The Act does not deal with
leave for taking care of the child beyond 6 weeks, i.e., the post natal period.
The right for child care leave has to be found elsewhere. However, this court is
inclined to interpret Rule 3-A of the Madras Port Trust (Leave) Regulations,
1987 also to include a person who obtain child through surrogate arrangement.

17. It will not be unnecessary if a reference is made to the All India Services
(Leave) Rules, 1955, wherein the Central Government had recognized even
paternity leave to be granted. Rule 18(D) was introduced with effect from
21.09.2011. The child care leave is given to a female member of the service.
Rule 18(D) reads as follows:

"18(D)Child Care Leave to a female member of the Service--(1)A female

member of the Service having minor children below the age of eighteen years
may be granted child care leave by the competent authority for a maximum of
730 days during her entire service for taking care of up to two children.

(2)During the period of child care leave, such member shall be paid leave
salary equal to the pay drawn immediately before proceeding on leave.

(3)Child care leave may be combined with leave of the kind due and
admissible.

(4)Notwithstanding the requirement of production of medical certificates

contained in sub-rule (1) of rule 13 or rule 14, leave of the kind due and
admissible (including commuted leave not exceeding 60 days and leave not
due) up to a maximum of one year, if applied for, be granted in continuation of
child care leave granted under sub-rule(1).

611
(5)Child care leave may be availed in more than one spell.

(6)Child care leave shall not be debited against the leave account of the
member of the Service."

18. In the result, the writ petition will stand allowed. The respondent Chennai
Port Trust is directed to grant leave to the petitioner in terms of Rule 3-A
recognizing the child obtained surrogate procedure. Further a direction is
issued to the respondent to include the name of the child G.K.Sharanya, as a
member of the petitioner's family and also include her name in the FMI card
forthwith. With reference to the expenditures incurred, since such a procedure
has not been contemplated for the purpose of reimbursement, this court is not
inclined to give any direction with reference to reimbursement of the amounts
involved in such procedure. No costs. Consequently, connected miscellaneous
petitions stand closed.1

04.03.2013 Index: Yes Internet: Yes vvk To the Chairman, Chennai Port
Trust, 1, Rajaji Salai, Chennai-600 001.K.CHANDRU, J.vvk W.P.No.8188 of
2012 04.03.2013

1 Retrieved from https://indiankanoon.org/doc/28691523/ dated 10-Jun-16 11:23:30 AM

612
7.1.5

Varsha Laxman Deshpande vs The Municipal Commissioner on 19 June,

2014

Third child of Respondent Nos.6 and 7 through surrogacy was a boy

and that it was Respondent ... decision to go in for surrogacy. It is stated by the
Petitioner that in: Downloaded on - 22/06/2014

Bombay High CourtVarsha Laxman Deshpande vs The Municipal

Commissioner on 19 June, 2014Bench: R.P. Mohite-Dere

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION NO.4164 OF 2013

Varsha Laxman Deshpande,

Age 44 years, Occ.Advocate,
(Social Worker), R/o.Sai Colony,
Shahu Nagar, Satara ... Petitioner.
V/s.
1. The Municipal Commissioner,
Mumbai Municipal Corporation,
Having Office at 1, Mahapalika Marg,
CST. Mumbai - 400 001.
2. The Health Officer,
Health Department,
BMC, Mumbai.
3. The State Appropriate Authority,
Health Department,
State of Maharashtra, having office
At Arogya Bhavan,
St.George Hospital Campus,
Third Floor, Mumbai.
4. Jaslok Hospital and Research Center,

613
 Through its Director,
Jaslok Hospital & Research Centre,
Dr.G.Deshmukh Road,
Mumbai.
5. Dr.Farija Parikh,MD, Director,
Department of Associate Reproduction
And Genetic, Jaslok Hospital,
IVF Department, 8th Floor,
Jaslok Hospital & Research Center,
Dr.G.Deshmukh Road,
Mumbai.
6. Mr.Shahruk Khan,
R/o.Mannat,
Band Stand, Bandra,
Mumbai.
7. Mrs.Gauri Khan
R/o.Mannat,
Band Stand, Bandra,
Mumbai. .............. Respondents
Mr.Uday P. Warunjikar, for the Petitioner.
Mr.M.P.S. Rao, Senior Counsel A/W Ms.Seena Ranade, for
Respondent Nos.1 and 2 - B.M.C.
Mr.Subodh Desai, for Respondent Nos.4 and 5.
Mr.Pranav Badheka a/w Mr.Zeeshan Syed, i/b Mr.Dhirajkumar Totala i/b
AZB and Partners, for Respondent Nos.6 and 7.
Ms.U.V.Kejariwal, APP for the Respondent No.8 - State.
CORAM: REVATI MOHITE DERE, J.
Reserved on : 6th March, 2014
Pronounced on: 19th June, 2014
ORDER:
1. Rule. Rule is made returnable forthwith with the consent of the 3/27
wp.4164.2013.doc parties and is taken up for final disposal at the stage of
admission. Counsel for the respondents waives service of notice.

614
2. By this petition, the Petitioner who is an Advocate, has impugned the order
dated 23rd October, 2013 passed by the Additional Chief Metropolitan
Magistrate, 37th Court, Esplanade, Mumbai, whereby the Petitioner's
application, preferred under Section 28(3) of the Pre- conception and Pre-natal
Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (hereinafter
referred to as the 'PC-PNDT Act' for the sake of brevity) came to be rejected.

3. A few facts as are necessary to decide the present petition are as under:-
According to the Petitioner, a local newspaper viz 'Mid-day' dated 14th June,
2013, had published a Promotional Feature Supplement by name 'HITLIST 70
MM', in which, on page 8 of the said supplement, an article was published
under the title 'Third Bundle of joy" along with a photograph of Respondent
Nos.6 and 7. According to the Petitioner, it was stated in the said article, that
B-Town's best kept secret was out and that a B- Town insider had revealed
that the third child of Respondent Nos.6 and 7 through surrogacy was a boy
and that it was Respondent No.7's decision to go in for surrogacy. It is stated
by the Petitioner that in 4/27 wp.4164.2013.doc addition to that, they said
newspaper, having an e-paper Edition, had also published the same news. The
said news was downloaded by the Petitioner on her Laptop from a link with
reference to the said news item.

The Petitioner states that in view of the contents of the article,

Respondent Nos.6 and 7 had committed gross violation of the PC-PNDT Act,
as they had sought to select / detect the sex of the child by using Pre-natal
Diagnostic Techniques. It is alleged that Respondent Nos.6 and 7 by declaring
the sex of the child in the surrogate mother's womb, had violated the
provisions of the PC-PNDT Act and had therefore committed an offence under
the said Act. According to the Petitioner, it was evident from the article, that
the sex of the foetus was revealed as a baby boy, prior to the birth of the child,
thereby violating the provisions of the PC-

PNDT Act, which prohibits sex selection, either during pre-conception

or during the pre-natal stage. On the basis of the news report, the Petitioner
filed a complaint with the appropriate authority, bringing to their notice, the
breach or violation of the provisions of the PC-PNDT Act. The Petitioner has

615
alleged that the Respondent Nos.1 to 3 failed in its duty to take cognizance of
the complaint under Section 27 and 28(1)(a) and had failed to exercise its
powers under Section 17 (4-a,b,c,d,e) and Section 17A of the PC-PNDT Act.
As the Respondent Nos.1 to 3 had allegedly failed to take cognizance of the
said information, the Petitioner submitted an on-line complaint on 16th June,
2013 with the Appropriate Authority i.e. Respondent Nos.1 and 2 and also
forwarded a copy of the said letter to various Authorities. On 4th July, 2013,
the Petitioner received a reply from the office of the 5/27 wp.4164.2013.doc
Additional Director, Health Services, Family Welfare, Pune. A copy of the
said reply is at Exhibit - D on page 45 of the petition. According to the
Petitioner, as no action was taken as against the Respondent Nos.6 and 7 by
the appropriate authority for violation of the provisions of the PC- PNDT Act
and as Respondent Nos.1 to 4 had not investigated the complaint, with regard
to the violation of the provisions of the said Act, the petitioner was constrained
to file a complaint under Section 28(1)

(b) Of the PC-PNDT Act in the Court of the learned Additional Chief
Metropolitan Magistrate, 37th Court, Esplanade, Mumbai. The said complaint
was registered as C.C.No.70/MISC/13. It is alleged by the complainant that
Respondent Nos.1 to 7 have committed several offences under the PC-PNDT
Act and in particular, there was violation of the provisions of Section
3A,5,6,17(4-a,b,c,d,e), 18, 19, 20(3), 23(1) (2),22,25,29 of the PC-PNDT Act
and violation of Rules 4(1,2,3),5,6,9, (1,2,3,4,5,6,7,8),10(1-A),11 and 12 of
the PC-PNDT Rules. In the said complaint, the Petitioner had interalia prayed,
that the Court be pleased to take cognizance of the complaint under Section
28(1) (b) of the PC-PNDT Act; to direct the Appropriate Authority namely
Respondent Nos.1 to 7 to produce the available record and make available
copies of the relevant record in their possession to the complainant and to try
and convict the Respondents for the offences as stated aforesaid.

On 8th August, 2013, the learned Magistrate was pleased to pass the following
order on the complaint filed by the Petitioner: -

6/27 wp.4164.2013.doc "Presented by the complainant. Registered as a Misc.

case. Put up for verification".

616
The Petitioner had also preferred an application, wherein the Petitioner had
interalia sought the following documents, as set out in para 11 of the said
Application:-

"1. The registration certificates of genetic counseling centers, clinics,

laboratories where the concerned accused undergone the treatment or sought
to undergo treatment of a surrogate mother;

2. D, E, F, G forms of all the genetic procedures conducted in concerned case

at all the centers of all stages from pre-conception to pre-natal delivery;

3. Reports available at Appropriate Authority's office reported to them by

every month of last two years of all the centers concerned;

4. "H' form of all concerned centers in the case;

5. Inspection reports of Appropriate Authorities of concerned centers in the

case;

6. Details of investigation procedure conducted from date of complaint till

today;

7. Case papers, admission papers as well as genetic procedures treatment

papers, contact papers if any related to the concerned surrogacy, pre-
conception, prenatal and Delivery procedures."

It was contended that the aforesaid documents were essential and important
for the just decision of the case.

The Trial Court adjourned the complaint, being C.C.No.70/MISC/13 for

recording of the verification of the Petitioner and as far as the Application
preferred under Section 28(3) of the PC-7/27 wp.4164.2013.doc PNDT Act
was concerned, the Trial Court issued notices to the Respondents. The
Petitioner preferred a Writ Petition in this Court, being Criminal Writ Petition
No.2987 of 2013, against the order dated 8 th August, 2013, issuing notices to
the Respondents, in the Application. This Court vide order dated 30th
September, 2013 observed in paras 4, 5 and 7 as under:-

617
"4. The Counsel representing the B.M.C. shall file a detailed report to the
concerned Magistrate (along with the documents with permission that under
the PC-PNDT Act, the Appropriate Authority to hold the identity of the
surrogate mother or any other privilege contemplated under the Act as well as
to honour the dignity of the surrogate mother and the child) in order to enable
the Magistrate to decide the application and pass appropriate orders on
7.10.2013. The concerned Magistrate shall take into consideration the
contentions raised by the respondents vide their affidavits/reports so filed.

5. The concerned Magistrate shall pass appropriate orders on merits on

7.10.2013.

6.......

7. It is made clear that this Court has not observed anything on the merits of
the application filed by the applicant under Section 28 sub-clause (3) of the
PC- PNDT Act."

On 24th October, 2013, the Counsel for the Petitioner withdrew the said Writ
Petition, being Criminal Writ Petition No.2987 of 2013 in view of the
statement made by the Counsel for the Petitioner, that the Petition had become
in fructuous, as the Petitioner's application filed under Section 8/27
wp.4164.2013.doc 28(3) of the PC-PNDT Act was rejected and as the matter
was posted on 13.11.2013 for recording the verification statement of the
Petitioner i.e. complainant. Accordingly, the Petition was disposed of as
withdrawn.

The learned Additional Chief Metropolitan Magistrate, 37 th Court,

Esplanade, Mumbai vide order dated 23 rd October, 2013 rejected the
application preferred by the Petitioner under Section 28(3) of the PC- PNDT
Act. Being aggrieved by the aforesaid order dated 23 rd October, 2013 passed
by the Trial Court, the Petitioner herein, has assailed the said order by way of
the present Petition, both under Article 227 of the Constitution of India and
under Section 482 of the Code of Criminal Procedure.

618
4. Heard Mr.Uday P. Warunjikar, learned counsel for the Petitioner,
Mr.M.P.S. Rao, Senior Counsel, for Respondent Nos.1 and 2 - B.M.C,
Mr.Pranav Badheka, for Respondent Nos.6 and 7. Perused the petition along
with its annexure, the relevant provisions of the PC-PNDT Act and the Rules
framed there under and the Judgments relied upon by the parties.

5. Before adverting to the submissions canvassed by the learned counsel for

the Petitioner, it would be necessary to reproduce the relevant provision of the
PC-PNDT Act, having a bearing in the said case;

9/27 wp.4164.2013.doc "28. Cognizance of offences. –

(1) No Court shall take cognizance of an offence under this Act except on a
complaint made by -

(a) the Appropriate Authority concerned, or any officer authorized in this

behalf by the Central Government or State Government, as the case may be, or
the Appropriate Authority ; or

(b) a person who has given notice of not less than [fifteen days' in the manner
prescribed, to the Appropriate Authority, of the alleged offence and of his
intention to make a complaint to the Court.

Explanation. - For the purpose of this clause "person" includes a social

organization.

2) No Court other than that of a Metropolitan Magistrate or a Judicial

Magistrate of the first class shall try any offence punishable under this Act.

3) Where a complaint has been made under clause (b) of sub-section (1), the
Court may, on demand by such person, direct the Appropriate Authority to
make available copies of the relevant records in its possession to such person."

6. Mr. Warunjikar, learned counsel for the Petitioner contended that apart
from Section 28, Sections 20, 29 and Section 17 (4-c, e and g) would also have
to be considered while deciding whether the word 'may' as it appears in

619
Section 28(3) of the PCPNDT Act should be read as 'shall'. He contended that
in addition to the aforesaid provisions and the PC-PNDT Rules, in particular,
Rule 9 and 11 would have to be read in conjunction 10/27 wp.4164.2013.doc
with Section 29 and that the other Rules which are material are Rules 12 and
13. He submitted that the object of the PC-PNDT Act would also have to be
considered while interpreting the provisions of Section 28(3) of the said Act,
as to whether the term 'may' ought to be read as 'shall'.

He submitted that the object of the Act as set out is for i) prohibition of the
misuse of pre-natal diagnostic techniques for determination of sex of foetus,
leading to female foeticide; ii) prohibition of advertisement of pre-natal
diagnostic techniques for detection or determination of sex; and iii) permission
and regulation of the use of pre-natal diagnostic techniques for the purpose of
detection of specific genetic abnormalities or disorders.

7. He submits that under Section 28(1), no Court shall take cognizance of an

offence under this Act except on a complaint made by either - (a) the
Appropriate Authority concerned, or any officer authorized in this behalf by
the Central Government or State Government, as the case may be, or the
Appropriate Authority ; or (b) by a person who has given notice of not less
than [fifteen days' in the manner prescribed, to the Appropriate Authority, of
the alleged offence and of his intention to make a complaint to the Court. He
submitted that the Petitioner has complied with Section 28(1) (b) inasmuch as,
the Petitioner had given notice to the 11/27 wp.4164.2013.doc Appropriate
Authority of the alleged offence or his intention to make a complaint to the
Court. He submits that as the Appropriate Authority had failed to file a
complaint, the Petitioner was constrained to lodge a complaint as against the
Respondents. He submitted that under sub-section (3) of Section 28 of the PC-
PNDT Act, where the complaint has been made by a person under Clause (b)
of sub-section (1) of Section 28, the Court may, on demand by such person,
direct the Appropriate Authority to make available copies of the relevant
records in its possession to such person. He submitted that keeping in mind the
object and the legislative intent in enacting the said Act and the fact
that Section 28(1) authorizes even a private person to lodge a complaint,

620
where the Appropriate Authority fails in its duty to lodge a complaint, the
word 'may' as it appears in Section 28(3) of the PC-PNDT Act will have to be
read as 'shall' and the trial Court accordingly ought to have directed the
Appropriate Authority to make available the copies of the relevant records in
its possession to the Petitioner.

8. Mr.Warunjikar, learned counsel for the Petitioner has made an alternative

submission, that in the event the word 'may' is read as 'may' thereby giving
discretion to the Magistrate to consider the request/ 12/27 wp.4164.2013.doc
demand made by the person seeking such documents in the possession of the
Respondent/Authority, the said discretion ought to be exercised judiciously.
He submitted that in the present case, the Magistrate has not exercised his
discretion judiciously, keeping in mind the object of the PC-PNDT Act. He
also submitted that a detailed report was not filed by the Respondents despite a
direction to do so and as such prayed for quashing and setting aside of the said
impugned order.

9. To buttress his submission, Mr.Warunjikar, learned counsel for the

Petitioner relied on the Judgments of the Apex Court in the case of State of
U.P. v/s. Jogendra Singh,1 ; Ramji Missar and Another v/s State of Bihar2 ;
A.C.Aggarwal, Sub-Divisional Magistrate, Delhi and Another v/s Mst. Ram
Kali, etc.3 and L.Hirday Narain v/s Income-Tax Officer, Bareilly,4

10. Per contra, Mr.M.P.S. Rao, Senior Counsel, for Respondent Nos.1 and 2
contended that this is not a case of sex selection or Pre-natal Diagnosis. He
submitted that the child was born to Respondent Nos.6 1AIR 1963, Supreme
Court 1618 2 AIR 1963 Supreme Court 1088 3 AIR 1968 Supreme Court 1 4
AIR 1971 Supreme Court 33 13/27 wp.4164.2013.doc and 7 through
surrogacy on 27th May, 2013 and the report relied upon by the Petitioner
appeared in Mid-day on 14th June, 2013. He submitted that the object of the
Act is very clear, inasmuch as, it prohibits and prevents any kind of sex
selection. He submitted that a perusal of the complaint shows that admittedly
the said article had come in the newspaper on 14 th June, 2013 and that a
representation / E-mail was made/sent by the Petitioner on 16th June, 2013 to
the Appropriate Authority. He submitted that the said representation / E-mail

621
was forwarded by the B.M.C. to the Executive Health Officer, Brihan
Mumbai Mahanagar Palika, Public Health Department on 19th June, 2013. He
submitted that the birth certificate which was issued by the Public Health
Department, Municipal Corporation of Greater Mumbai shows that the child
was born on 27th May, 2013, much before the Mid-day news article, which
appeared on 14 th June, 2013. According to Mr.Rao, apart from the newspaper
report dated 14th June, 2013, there was no material or basis for the allegations
made by the Petitioner. He submitted that in response to the E-mail received
from the Petitioner on 17th June, 2013, the Executive Health Officer, Brihan
Mumbai Mahanagar Palika, Public Health Department vide his letter dated
19th June, 2013, had taken prompt steps to find out if there was violation of
the provisions of the PC-PNDT Act. Mr.Rao submitted that for 14/27
wp.4164.2013.doc investigating the matter, one team was sent to Jaslok
Hospital and the second team was sent to the house of Respondent Nos.6 and
7. He further submitted that on investigation it was found that Dr.Farija Parikh
(Respondent No.5) had categorically informed by a letter that no treatment of
surrogacy or any diagnostic test for sex determination was carried out in the
I.V.F. Department in the Jaslok Hospital and Research Centre. He submitted
that a copy of the E-mail was also received from Respondent No.6's Personal
Secretary addressed to the Medical Officer of Health (H/West Ward) and the
Appropriate Authority, PC-PNDT Act, Brihanmumbai Mahanagarpalika,
Mumbai, stating that Respondent Nos.6 and 7 had made no statement, in any
manner, about surrogacy or sex determination in any form to the media and
that Respondent Nos.6 and 7 were not aware of the article that appeared on the
Internet and in the Newspaper. He further submitted that the Executive Health
Officer, Brihan Mumbai Mahanagar Palika, Public Health Department vide
letter dated 27th August, 2013, had informed the Petitioner and the Director of
Population First, that after investigation it was found that there was no prima
facie evidence to confirm that prenatal sex determination was undertaken. In
view of the action taken, the Appropriate Authority sought closure of the said
complaint of the 15/27 wp.4164.2013.doc Petitioner. A copy of the said letter
was also sent to the Additional Director of Health Services Family Welfare,
MCHG and SH, Pune. Mr.M.P.S. Rao, further submitted that the Executive
Health Officer of Brihan Mumbai Mahanagar Palika, vide his letter dated 20

622
th June, 2013, addressed a letter to the Editor, Mid-Day (English), Mid-Day
Info media Limited, that the State Government had asked MCGM to
investigate, as his office required to know whether the information published
was true or otherwise and the source of information. The Editor was also
called upon to furnish all information regarding the article published in the
'Mid-day' regarding the sex determination of the unborn and surrogate child of
Respondent Nos.6 and 7. He submitted that after conducting a detailed
investigation, a report was prepared by the B.M.C., which showed that no
prima facie case was made out by the Petitioner and that the information was
based on a newspaper report. He therefore submitted that the Petition being
devoid of merit, ought to be dismissed as it was based on fallacious and
baseless allegations.

11. On the interpretation of sub-section 3 of Section 28 of the PC-PNDT Act,

Mr. Rao submitted that the word 'may' as it appears in Section 28(3) of the
said Act vests in the Magistrate a discretion and cannot be read as 16/27
wp.4164.2013.doc 'shall'. He submitted that the discretion so vested has to be
exercised judiciously and the Magistrate has to, after considering the merits of
the complaint, decide whether the records/documents as sought for ought to be
given to the complainant. He submitted that there are several stakeholders
involved in surrogacy matters and that it is essential to maintain the privacy of
the parties in cases of surrogacy. He submitted that the Petitioner had not laid
any foundation for getting access to the documents/records and therefore the
learned Magistrate had rightly rejected his application seeking copies of the
records from the Appropriate Authority. He submitted that there is an inbuilt
safeguard in Section 28(3) of the PC-PNDT Act which vests in the Magistrate
a discretion and if the word 'may' is read as 'shall', a busy body or a
speculative informant without any foundation whatsoever, would on filing of a
complaint, be entitled to receive the records as a matter of right. He submitted
that the complainant has to lay down some foundation and that speculative
information or roving enquiry, cannot be the basis for getting access to the
records, at the asking. He submitted that it was for the Magistrate in his
discretion to consider, whether the complaint is bonafide and genuine, whether
the complaint has any merit or substance and whether the Appropriate

623
Authority is acting in collusion with the party. He submitted 17/27
wp.4164.2013.doc that the inbuilt safeguards would go, if the word 'may' as it
appears in Section 28(3) of the PC-PNDT Act is to be read as 'shall'. He
therefore submitted that the word 'may' will have to be read as 'may' and not as
'shall'.

12. In support of his submissions, Mr.M.P.S. Rao, relied on the Judgment of

the Apex Court in the case of People's Union for Civil Liberties (PUCL) v/s
Union of India and Another, 5 l Sharda v/s Dharmpal,6 and District Registrar
and Collector, Hyderabad and Another v/s Canara Bank and Others,7

13. Mr.Pranav Badheka, for Respondent Nos.6 and 7 contended that Section
28(3) is an enabling Section and that the Magistrate should be satisfied that the
documents/records that are sought or demanded by the complainant, ought to
be given or not. He submitted that if the word 'may' is read as 'shall', it would
be a mechanical order, leaving no discretion whatsoever, in the Magistrate and
would thereby violate the fundamental rights of the parties/stakeholders
involved in surrogacy, 5AIR 1997, 1 Supreme Court Cases 301 6 (2003) 4
Supreme Court Cases 493 7 (2005) 1 Supreme Court Cases 496 18/27
wp.4164.2013.doc thereby infringing their right to privacy. He submitted that
the Petitioner is a busy body and that this Court had in Criminal Application
No.106 of 2012 in the case of Kolhapur Municipal Corporation v/s
Dr.Tukaram Govind Mane and Others observed therein, that the petitioner i.e.
Varsha Deshpande, who had organized the decoy operation in that case was
found to be untrustworthy. He submitted that if the word 'may' is read as 'shall'
in Section 28(3), it would be contrary to the decision of the Apex Court and
the Guidelines pronounced by the Indian Council of Medical Research, 2005
in relation to the Assisted Reproductive Techniques ("Guidelines"), surrogacy
as recognized in India. He submitted that the biological parents, surrogate
mother as well as the child are entitled to utmost confidentiality/secrecy,
which includes personal details. He submitted that any disclosure of the
confidential information will be breach of the said 'Guidelines'. He submitted
that the entire complaint is misconceived, based on fallacious, baseless and
unsubstantiated premise and that the action sought to be initiated by the

624
Petitioner is in the form of a roving enquiry without any basis, done with an
ulterior motive and deserves to be dismissed with exemplary costs. He
submitted that the child was born prior to the article which appeared in Mid-
day. He submitted that the article appeared on 14 th June, 2013 in 19/27
wp.4164.2013.doc Mid-day and the child was born on 27 th May, 2013 and
that there was no question of any sex determination of the child on the date on
which the said article appeared in the newspaper. He submitted that the
Respondent Nos.6 and 7 have never made any attempt to determine the sex of
the child even before the birth of the child and as such there was no question
of violation of the provisions of the PC-PNDT Act or the Rules framed. He
submitted that the discretion which is vested under Section 28(3) of the PC-
PNDT Act has been rightly exercised by the learned Magistrate and as such
this Court ought not to interfere in the said order in its writ jurisdiction.

14. Perused all the relevant provisions of the PC-PNDT Act and relevant rules,
more particularly, Section of the said Act and the statement of object and
reasons for enacting the PC-PNDT Act. A perusal of Section 28 of the PC-
PNDT Act clearly shows that no court can take cognizance of an offence
under this Act except on a complaint made by (a) the Appropriate Authority
concerned, or any officer authorized in this behalf by the Central Government
or State Government, as the case may be, or the Appropriate Authority ; or (b)
a person after giving notice of not less than fifteen days in the manner
prescribed, to the Appropriate Authority, 20/27 wp.4164.2013.doc of the
alleged commission of an offence and of his intention to make a complaint to
the Court. The explanation to the said section shows that for the purpose
of Section 28 clause (b), "person" includes a social organization. Under clause
3 of Section 28 where a complaint has been made under clause (b) of sub-
section (1) of Section 28, the Court may on demand by such person, direct the
Appropriate Authority to make available copies of the relevant records in its
possession to such person.

The said section will have to be considered in the background of the statement
of objects and reasons for which the PC-PNDT Act has been enacted. It is
evident from the statement of objects and reasons, that the said Act was

625
enacted to prohibit pre-natal diagnostic techniques for determination of sex of
the foetus leading to female foeticide, as such abuse of techniques,
discriminates against the female sex, thereby affecting the dignity and status of
women and for other reasons as set out in para 6 of the judgment. It is thus
evident, that if an Appropriate Authority or any officer authorized in this
behalf by the Central Government or State Government, as the case may be, or
the Appropriate Authority fails in its duty to lodge a complaint for violation of
the provisions of the said Act/Rules, a 'person' has been given locus under the
said Act to lodge a complaint in the appropriate Court for violation of
the 21/27 wp.4164.2013.doc provisions of the said Act/Rules framed there
under,, by giving notice in the manner prescribed, to the Appropriate
Authority of the alleged violation of the Act. Thus, the legislation gives locus
to a 'person' to make a complaint to the Court of the alleged commission of
offences under the PC-PNDT Act, where the Appropriate Authority fails in its
duty. Under sub-section (3) of Section 28, where a complaint has been made
by a person as stated under clause (b) of sub-section (1) of Section 28, the
Court may, on demand by such person, direct the Appropriate Authority to
give relevant records in its possession to such person. The question that arises
for consideration in the present case is whether the word 'may' as it appears in
sub-section 3 of Section 28 of the said Act can be read as 'shall' or whether
there is a discretion vested in the Court to make available the copies of the
relevant records in the possession of the appropriate authority, to such a
person. If the word 'may' as submitted by Mr.Warunjikar is read as 'shall'
leaving no discretion in the Magistrate to make available the copies of all the
records in the possession of the appropriate authority, then the question will
arise whether by handing over of such records, the right of privacy of persons
involved is affected, more particularly, when no foundation whatsoever is laid
for handing over the said records. There may be a case where the complainant
may be a22/27 wp.4164.2013.doc busy body or a person whose bonafides are
questionable or a complaint which is baseless, then under these circumstances,
would such a person be entitled to the records as a matter of right
under Section 28(3) of the said Act. There may also be a case, where despite
the fact, that there is no violation of the provisions of the said Act, if the
records are given as a matter of right, the stakeholders in the given case, more

626
particularly in cases of surrogacy may be exposed, thereby infringing the right
of privacy of the persons involved.

15. No doubt, it is well settled that the word 'may' is capable of meaning 'must'
or 'shall' in the light of the context but that would depend upon the legislation,
its object and several other factors. Normally, the word 'may' is used to grant
discretion and not to indicate a mandatory direction. It is also true that the
word 'may' in some context, has been interpreted as containing a mandatory
direction and the authority given the power has to exercise that power unless
there are special reasons. The word 'may' is often read as 'shall' or 'must' when
there is something in the nature of the thing to be done which makes it the
duty of the person on whom the power is conferred to exercise the power.
Infact, in Frederic Guilder Julius v/s Right Rev. the Lord Bishop of Oxford;
the Rev. 23/27 wp.4164.2013.doc Thomas Thellusson Carter. Lord Blackburn
said :

"....The enabling words are construed as compulsory whenever the object of

the power is to effectuate a legal right."

It is therefore in the context in which the word 'may' that has been used which
is decisive.

16. Section 28(3) would have to be considered not only keeping in mind the
statement of objects and reasons for enacting the PC-PNDT Act, but also
keeping in mind the International Covenant on Civil and Political Rights and
the Universal Declaration of Human Rights, in particular, the right to privacy
of the stakeholders, more particularly in cases of surrogacy. The right to
privacy of an individual is a part of right to 'life' and 'personal liberty' which is
enshrined under Article 21of the Constitution. Once Article 21 is attracted, the
said right cannot be curtailed 'except according to the procedure established by
law'. Whether the right to privacy can be claimed or has been infringed in a
given case would certainly depend on the facts of each case. Whether the
documents sought for under sub-section 3 of Section 28 ought to be given or
not, is a matter which is for the Magistrate to decide, after balancing the
purpose 24/27 wp.4164.2013.doc and object of the legislation, the right of the

627
person to receive the documents, and violation, if any, of the provisions of the
said Act and Rules. Certainly, the right of privacy cannot supercede the
violation of the provisions of the PC-PNDT Act and Rules framed there under.
However, it is for the Magistrate to consider all the factors, including the right
of privacy of the stakeholders. If the word 'may' is read as 'shall' the
Magistrate will have no discretion whatsoever, which certainly cannot be said
to be legislative intent. Thus, the word 'may' as it appears in subsection (3) of
Section 28 of the PC-PNDT Act will have to be read as `may' and not `shall',
or 'must' ; thereby giving discretion to the Magistrate to decide whether the
complainant is entitled to the records as sought for.

Thus, there is no vested right in the complainant to get the records as a matter
of right. It may be noted here, that none of the parties have raised the issue, as
to whether the Magistrate was competent to consider the application preferred
under Section 28(3) of the PC-PNDT Act prior to taking cognizance of the
alleged offences under the PC-PNDT Act, and hence the said issue has not
been considered and left open.

17. In the present case, the complaint is based on a newspaper report dated
14th June, 2013, whereas the date of birth of the child is 27th May, 25/27
wp.4164.2013.doc 2013. Admittedly, the foundation of lodging the complaint
is only the newspaper report. The petitioner had given notice to the
Appropriate Authority as contemplated under sub-section 1(b) of Section 28.
The Appropriate Authority has also as it appears promptly taken cognizance of
the said letter sent by the Petitioner and has conducted a detailed enquiry in
the said matter and after conducting the same has come to the conclusion that
there was no violation of the aforesaid provisions. The learned Magistrate after
considering all the material placed before it, has rejected the application
preferred by the petitioner, seeking all the relevant records under sub-section 3
of Section 28. The learned Magistrate in para 8 and 9 has observed as under :-

"8. Here it is to be noted that except the complainant's words there is

absolutely no material to substantiate her claim that the relevant record is
available with the respondent/opponent nos.1 to 3.

628
Barring the news item dated 14/06/2013 the complainant could produce no
material in support. Said news item is cited as the base for the conviction of
the complainant that the tests were carried out or the sex of the child was
declared in violation of the provisions of the PC-PNDT Act. Source of such
news article is neither revealed nor is ascertainable. Therefore, such a base, it
goes without saying, is 26/27 wp.4164.2013.doc absolutely fragile.
Complainant's conviction alone can never be made the basis to even
reasonably believe that the respondents/opponents might be having the alleged
record or they have other record than what they produced on 4.10.2013. It
cannot be lost sight of that the child was born on 27.05.2013 while the
complainant does not allege that its sex was declared any time prior to that.
Her claim appears purely to be the guesswork. I "Adequate foundation to raise
a belief that the respondent/opponent nos.1 to 3 have the alleged record
concerning the present complaint is badly wanting. Therefore, sans the same
the direction as sought for cannot be issued. It is also highly doubtful if a
person who is arraigned as an accused could be directed to produce certain
material which may later be used against him only, as evidence. The
complainant in these circumstances, appears to have made either blind guess
or is groping in the dark......."

18. It is for the Magistrate to consider whether the demand of

documents/records from the Appropriate Authority is genuine, bonafide etc. It
is a discretion which is vested in the Magistrate which he has to exercise
judiciously, keeping in mind all the factors. There is no infirmity 27/27
wp.4164.2013.doc in the impugned order and the learned Magistrate has
rightly rejected the application preferred by the Petitioner under Section
28(3) of the PCPNDT Act. No interference is warranted. The petition being
sans merit, is dismissed. Rule is discharged.

19. Needless to state, that the observations made in the said order are confined
to the issue raised in the said petition, preferred under Section 28(3) of the PC-
PNDT Act. The trial court to proceed with the complaint, on its own merits, in
accordance with law.

629
(REVATI MOHITE DERE, J.) After pronouncement of the order, the learned
counsel for the Petitioner, seeks stay of the order passed today. Prayer
rejected.

(REVATI MOHITE DERE, J.)

7.1.6

Amy Antoinette Mcgregor & Anr vs Directorate Of Family Welfare ... on

24 October, 2013

Doctors therefore advised her to proceed with a Gestational Surrogacy.

It is a procedure by which one woman, the surrogate ... child and for this
purpose, in the surrogacy procedure for the petitioners, the prenatal techniques
play an essential and important

Delhi High Court Amy Antoinette Mcgregor & Anr vs Directorate Of Family
Welfare ... on 24 October, 2013

Author: N.V. Ramana,Chief Justice

IN THE HIGH COURT OF DELHI AT New Delhi

W.P. (C) 6332/2013
AMY ANTOINETTE MCGREGOR & ANR ..... Petitioners
Through: Mr. Karan S. Thakur, Advocate with
Mr. Vikrant Goyal, Advocate.
Versus
DIRECTORATE OF FAMILY WELFARE
GOVT OF NCT OF DELHI & ANR ..... Respondents
Through: Ms. Nidhi Raman, Advocate for
Respondent No.1.
Ms.Shipra Shukla, Advocate for
Respondent No.2.
Judgment Reserved on: October 04, 2013
Judgment Pronounced on: October 24, 2013

630
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
: CHIEF JUSTICE

1. This writ petition is filed by two petitioners, residents of Sydney, Australia.

The first petitioner is the wife and the second is the husband. It appears that
due to some medical problem the first petitioner cannot physically conceive a
child. After medical examination by best doctors and taking medical advice,
they found that the cause is some 'Lupus'and it is an Immune-Suppressive
Stipulation which does not physically and practically allow the embryos of the
mother to thrive and properly flourish in her body. The doctors therefore
advised her to proceed with a Gestational Surrogacy. It is a procedure by
which one woman, the surrogate mother, carries a fertilized donor egg or
embryo for the petitioner No.1. It basically involves In-Vitro Fertilization
(IVF), which involves mixing of eggs and sperms outside the uterus, followed
by implanting the fertilized eggs into the uterus, where the embryo will grow
and develop into a baby. This is available, apart from India, in only two
countries, i.e., Thailand and America, throughout the world, which offer an
assured and medically secure IVF process. For a long time, the petitioners had
a desire to have a child but because of the medical problem they could not
conceive. Now they thought of using the above technique to get a child.
However, for the sake of family balancing they intend to have one girl child
and one boy child and for this purpose, in the surrogacy procedure for the
petitioners, the prenatal techniques play an essential and important role.
According to the petitioners, though they want a child, yet they do not want
two children of the same sex in view of their principle of balanced family and
accordingly they want to control the birth of same sex by using the advanced
prenatal techniques.

2. For this purpose, it appears that the petitioners made an application to

respondent No.1 seeking to forward it to the concerned department and in that
application they made a request that the provisions of The Pre- Conception

631
and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994
(hereinafter referred to as 'the said Act') cannot be made applicable to them
and it is also further stated that couples who have no children and wish to have
a male or female children should be allowed to make use of the pre-natal
diagnostic techniques to have a child of both sex to balance their family. So
these couples cannot be treated at par with the couples, who choose the sex of
foetus in order to have a male child leading to imbalance in male to female
ratio.

3. It is further stated that the unconstitutionality of the said Act is visible to the
class of couples who are not having child/children and wish to have both male
and female babies. Even though they made an application seeking exemption
of these couples from the said Act, there is no response from the respondent
authorities. The present writ petition is, therefore, filed seeking following
reliefs:-

"I. Issue a writ of mandamus or any other appropriate writ, order or direction
directing the Respondent No.1 to grant a „No Objection‟ to the petitioners
with reference to their application pending disposal in their office.

ii. Issue a writ of mandamus or any other appropriate writ, order or direction
thereby directing that the Pre-Natal Diagnostic Techniques Act as ultra virus
with respect to its applicability to surrogacy process."

4. When the matter came up for admission, the learned counsel for the
respondent No.1 furnished a letter dated 17.09.2013 which is a reply to the
representation submitted by the petitioners. Vide the said letter the request
made by the petitioners has been declined stating that the said Act does not
permit Sex selection on the pretext of family balancing as it would result in
restricting the scope and meaning of the Act, to the detriment of the
Government's Endeavour to reverse the trend of declining female Child Sex
Ratio.

632
5. Thus, in view of the above reply by respondent No.1, the first relief sought
by the petitioners has become in fructuous. Now, for deciding the second
prayer of the petitioners, let us examine the legal position.

6. The legislative purpose of the Pre-Natal Diagnostic Techniques (Regulation

and Prevention of Misuse) Amendment Act, 2002 reads as under:-

"An Act to provide for the prohibition of sex selection, before or after
conception, and for regulation of pre-natal diagnostic techniques for the
purposes of detecting genetic abnormalities or metabolic disorders or
chromosomal abnormalities or certain congenital malformations or sex-linked
disorders and for the prevention of their misuse for sex determination leading
to female foeticide and for matters connected therewith or incidental thereto."

7. The intention is, therefore, clear that one of the integral purposes of the
legislation is prevention of misuse of pre-natal diagnosis for sex
determination, since such determination is legislatively perceived to lead to
female foeticide.

8. From a reading of the writ petition filed by the petitioners, it is clear that the
assumption and the reason given are speculative and factually misconceived.
The assumption of the petitioners that it is possible to identify the gender of
the foetus before impregnation, has no basis in the science of genetics or any
established principle of sexual reproduction currently.

9. It is not contended that the legislation is beyond the authorized legislative

field of the Parliament. The singular ground of challenge is that the legislation
is arbitrary and does not accommodate the 'exceptional category' of the
petitioners who desire to have a balanced family comprising a male and a
female child, a challenge which in substance means that the Act is
unsustainable for the vice of unreasonable classification.

10. It is a well settled principle of the Doctrine of Classification that:

The Legislature is free to recognize degrees of harm and may confine its
restrictions to those cases where the need is deemed to be the clearest.

633
11. It is equally well settled principle of Doctrine of Classification that:

In order to sustain the presumption of constitutionality the Court may take into
consideration matters of common knowledge, matters of common report, the
history of the times and may assume every state of the times and may assume
every state of facts which can be conceived existing at the time of legislation.

12. These principles are so well settled that they enjoy the status of being Meta
principles. These are also principles of classification uniformly declared
without exception in all legal jurisdictions where rule of law or principles of
equality are the cornerstones of a constitutional democracy, and have been
reiterated in Ram Krishna Dalmia vs. Shri Justice S.R.Tendolkar & Ors.AIR
1958 SC 538.

13. The challenge to the provisions of the Act on the ground of hostile
discrimination and unreasonable classification is, therefore, misconceived. We
need say no more.

14. The writ petition is, accordingly, dismissed.

No costs.

(CHIEF JUSTICE) (MANMOHAN) JUDGE OCTOBER 24, 2013 „anb‟

7.1.7

Shihabeldin vs Union Of India And Others on 23 April, 2014

undoubtedly there is a complex issue at hand of surrogacy qua single parents

who are foreign citizens. It cannot ... prevail would not permit the single
parent foreign citizen surrogacy. The final version would only emerge as
stated aforesaid after

Punjab-Haryana High Court

Shihabeldin vs Union Of India And Others on 23 April, 2014

634
 IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP-15490-2013 (O&M) Date of decision:-23.04.2014
Shihabeldin …………..Petitioner
Versus
Union of India and others ……………….....Respondents
CORAM: HON'BLE MR. JUSTICE SANJAY KISHAN KAUL, CHIEF
JUSTICE
HON'BLE MR. JUSTICE ARUN PALLI
Present: Mr. Anil Malhotra, Advocate,
And Mr. Gaurav Mohunta, Advocate,
For the petitioner.
Mr. Karminder Singh, Advocate,
For respondents No. 1 to 3.
Mr. Brijeshwar Singh Kanwar,
Senior Standing Counsel,
For respondents No. 4 and 5.
Mr. O.S. Batalvi, Special
Senior Standing Counsel,
With Mr. Rishi Kant, Advocate,
For respondents No. 6 and 7.
****

SANJAY KISHAN KAUL, C.J. (ORAL) CM-4830-2014 Leave is granted to

place on record the affidavit of the Secretary, Ministry of Law & Justice and
the application is allowed. CM-4925-2014 Leave is granted to place on record
the affidavit of Mr. Vikas Srivastava, Under Secretary (Foreigners), Ministry
of Home Affairs in pursuance to our last order dated 02.04.2014 and the
application is allowed.

CM-4867-2014 For the reasons set out in the affidavits, exemption is granted
from personal appearance for today qua the officers concerned and the
affidavit Sharma Amodh 2014.04.24 15:07 I attest to the accuracy and
integrity of this document Chandigarh sought to be placed on record on behalf

635
of respondents No. 6 and 7 is taken on record and the application stands
disposed of. CWP-15490-2013 The affidavit filed by Mr. Vikas Srivastava is
not wholly satisfactory to the extent that once the example of the judgment of
the Gujarat High Court had been given to buttress the plea of complexities of
issue involved, it was his bounden duty to have also referred to the fact of the
matter pending before the Hon'ble Supreme Court and that took on a Special
Leave Petition filed by the Union of India. Be that as it may, in view of the
regret and apology tendered, we would not like to proceed further in this
matter.

The affidavit filed by the Secretary, Department of Legal Affairs, Ministry of

Law & Justice shows that action has been taken and the final view is that the
concerned Administrative Ministry would be the Ministry of Health and
Family Welfare which would lead the matter in the Court.

The detailed affidavit of Mr. S.K. Rao, Joint Secretary, Department of Health
Research, Ministry of Health & Family Welfare has been filed. It has been
explained that various versions of the Bill are put in public domain for
opinions; once the opinions are obtained and the inter-ministerial discussions
take place resulting in a Cabinet note being prepared, the final version of the
Bill being an annexure to the Cabinet note also becomes top secret. This is
stated to be on the basis of a hand book on writing Cabinet notes of the
Government of India, Cabinet Secretariat. We are not at the moment
commenting on the advisability of such a process whereby even the proposed
final version of the Bill becomes top secret because it is not really the issue
before us. The relevant fact, however, is that the final draft form of legislation
is now before the Cabinet. The Cabinet is yet to deliberate on it. Sharma
Amodh 2014.04.24 15:07 I attest to the accuracy and integrity of this
document Chandigarh The stand taken before us on behalf of the Health
Ministry is that in the interregnum period the concerned Ministry would stand
by the guidelines issued by the Ministry of Home Affairs under Section 3 of
the Foreigners Act, 1946.

We are, thus, confronted with a situation where undoubtedly there is a

complex issue at hand of surrogacy qua single parents who are foreign

636
citizens. It cannot be lost sight of that there would have to be checks and
balances in such a situation. As to what would be the final version of the Act
and what are the checks and balances would in turn depend on the final
proposal of the Cabinet which would in turn have to be placed before the
House and only thereafter would it be known. What had persuaded us to
intervene in this matter was the plea of the learned counsel for the petitioner
that earlier the National Guidelines for Accreditation, Supervision and
Regulation of ART Clinics in India (Annexure P-4) were in force. There
appeared to be some conflict between the guidelines issued under
the Foreigners Act by the Ministry of Home Affairs (Annexure P-2) and the
guidelines of the ICMR. However, the conflict for the interim period is
resolved by all the respondents being in unison that in the interregnum period
the arrangement which would prevail would not permit the single parent
foreign citizen surrogacy. The final version would only emerge as stated
aforesaid after the Parliament debates on the law.

In view of the aforesaid position, we are not inclined to issue a writ in favour
of the petitioner, a foreign citizen, who seeks single parent surrogacy as the
law in this behalf itself is sought to be enacted and it is at a final stage. This is
not a matter where the stated vacuum can be filled in by the Court in the
interregnum period, moreso when there is now a unanimous Sharma Amodh
2014.04.24 15:07 I attest to the accuracy and integrity of this document
Chandigarh view of the different Ministries of the Government of India as to
what should prevail as an interim arrangement.

The petition is accordingly disposed of with a hope that the final view would
be available with the constitution of the new House which would have the
benefit of debating the matters pertaining to the law post the Cabinet having
scrutinized the same.

The draft Bill, 2013 produced in a sealed cover has been returned to the Joint
Secretary, Department of Health Research, Ministry of Health & Family
Welfare.

637
(SANJAY KISHAN KAUL) CHIEF JUSTICE (ARUN PALLI) JUDGE
23.04.2014 Amodh Sharma Amodh 2014.04.24 15:07 I attest to the accuracy
and integrity of this document Chandigarh

7.1.8

Sun Pharmaceuticals Industries ... vs Cipla Limited on 3 October, 2008

Intellectual property" as well. In present day times of surrogacy, when

the child may not belong to the mother from

Delhi High Court

Sun Pharmaceuticals Industries ... vs Cipla Limited on 3 October, 2008

Author: Rajiv Sahai Endlaw

IN THE HIGH COURT OF DELHI AT New Delhi

IA. No. 6872/2008 in CS (OS) 1073/2008
Date of decision: 03.10.2008
SUN PHARMACEUTICALS INDUSTRIES .......Plaintiff
LIMITED
Through: Mr Hemant Singh, Advocate.
Versus
CIPLA LIMITED ......Defendant
Through: Ajay Sahni with Ms Vrinda,
Advocates.
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. Whether reporters of Local papers may

Be allowed to see the judgment? Yes
2. To be referred to the reporter or not? Yes
3. Whether the judgment should be reported
In the Digest? Yes

638
RAJIV SAHAI ENDLAW, J.

1. Though the plaintiff has instituted the suit for permanent injunction
restraining infringement of trade mark THEOBID in relation to medicinal and
pharmaceutical preparation and passing of by using the trade mark THEOBID-
D, also in relation to medicinal preparations, the counsel for the plaintiff for
interim relief has argued only on the basis of infringement of registered trade
mark and not on the basis of passing of.

2. The first question to be decided therefore is whether, prima facie, the

plaintiff is the registered proprietor of the trade mark and entitled to maintain
an action for infringement. The question has IA.No. 6872/2008 in CS (OS)
1073/2008 Page No.1 of 17 arisen because the trade mark is stated to be
registered in the name of M/s Natco Fine Pharmaceuticals Private Limited
vide registration No. 440830 dated 26th July, 1985 and valid till 26th July,
2016; that the said trade mark was assigned to the plaintiff along with its
goodwill vide deed of assignment dated 31st October, 1998. The plaintiff
claims to have applied in Form TM 24 dated 25th July, 2000 to the Registrar
of Trade Marks for entering the name of the plaintiff as the subsequent
proprietor of the said trade mark.

Section 45 of the Trade Mark Act, 1999 is as under:

"45. Registration of assignments and transmissions - (1) Where a person

becomes entitled by assignment or transmission to a registered trade mark, he
shall apply in the prescribed manner to the Registrar to register his title, and
the Registrar shall, on receipt of the application and on proof of title to his
satisfaction, register him as the proprietor of the trade mark in respect of the
goods or services in respect of which the assignment or transmission has
effect, and shall cause particulars of the assignment or transmission to be
entered on the register: Provided that where the validity of an assignment or
transmission is in dispute between the parties, the Registrar may refuse to
register the assignment or transmission until the rights of the parties have been
determined by a competent court.

639
(2) Except for the purpose of an application before the Registrar under sub-
section (1) or an appeal from an order thereon, or an application under section
57 or an appeal from an order thereon, a document or instrument in respect of
which no entry has been made in the register in accordance with sub-section
(1), shall not be admitted in evidence by the Registrar or the Appellate Board
or any court in proof of title to the trade mark by assignment or transmission
unless the Registrar or the appellate Board or the court, as the case may be,
otherwise directs." The same corresponds to Section 44 of the Trade
and Merchandise Marks Act, 1958 IA.No. 6872/2008 in CS (OS) 1073/2008
Page No.2 of 17

3. It is contended by the counsel for the defendant on the basis of -

a) Section 2(1) (v) defining registered proprietor in relation to a trade mark, as

meaning the person for the time being entered in the register as proprietor of
the trade mark;

b) Section 28 providing that the registered proprietor of the trade mark shall
have the exclusive right to the use of the trade mark and to obtain relief in
respect of infringement thereof;

c) Section 29 also referring to a Register Trade Mark; and

d) Section 45(2) prohibiting the court from admitting into evidence any
document as proof of assignment of trade mark unless the same is registered.
That the plaintiff inspite of assignment deed in its favour but without being
registered with the Registrar as the proprietor of the trade mark is not entitled
to maintain an action for infringement of the registered trade mark.

4. Reliance in this regard is placed by the counsel for the defendant on

Soundarapandian Match Works v M Jayarama Chetty PTC (Suppl) (2) 145
(Mad) and Shaw Wallace & Co Ltd v Superior Industries Ltd 2007 (35) PTC
782 (Del).

5. In the first of the aforesaid judgments, a learned Single Judge of the Madras
High Court held that having regard to the rigour of Section 44 of the Old Act,

640
as long as the registration of the assignment has not been completed, the
assignee cannot seek to exercise any right. It was held that since the Registrar
is entitled to refuse to register the assignment, it cannot be known till the
IA.No. 6872/2008 in CS(OS) 1073/2008 Page No.3 of 17 Registrar has passed
the order as to whether the registration would be affected or not. It was further
held that without the registration, the document of assignment is inadmissible
to prove the title to the trade mark by assignment. It was thus held that till
such registration, there is no right in the assignee to prevent anyone else. I may
mention that in that case the assignee had not moved the Registrar to accept
the assignment. In the present case, the application of the plaintiff for
registration is pending since the year 2000. I find that a Single Judge of
Bombay High Court also, in Ratansi Mulji v Vinod Ratilal Gandhi AIR 1991
Bom 407 quashed prosecution for unauthorized use of Trade Mark at the
instance of a person, assignment in whose favour had not been registered. It
was observed that without registration of assignment, no rights can be pleaded
on the ground that the trade mark have been assigned or transmitted.

6. In Shaw Wallace & Co (supra) an application for impalement of the

assignee was under consideration. This court held that till the time the
Registrar, Trade Mark, does not record the title in favour of the assignee, the
deed of assignment cannot be admitted in evidence. However, the assignee
was still imp leaded as a party with direction to file the registration as and
when accorded by the Registrar.

7. Per contra, the counsel for the plaintiff has relied upon M/s Modi Threads
Limited v Som Soot Gola Factory AIR 1992 DELHI 4 and Grandlay
Electricals (India) Ltd v Vidya Batra 1998 PTC (18) Delhi wherein it has been
held that even if the IA.No. 6872/2008 in CS(OS) 1073/2008 Page No.4 of 17
application for getting transferred the registered trademark in the office of the
Registrar is pending, that does not debar the party from protecting the
violation of the trademark at the hands of unscrupulous persons by filing an
action in court of law for injunction. It was held that during the interregnum
period when the application is kept pending for consideration by the Registrar
of Trade Marks, dishonest persons cannot be allowed to make use of the said

641
trade mark and to illegally enrich themselves. It was further held that the title
accrues on the execution of the assignment deed and all other follow up action
which are required to be taken under theTrade Marks Act do not change the
title already acquired in this respect. In the aforesaid two judgments, it was
also held that if in spite of the party having applied to the Registrar of Trade
Marks, no action is taken by the Registrar, the party cannot be blamed there
for. Of course, in neither of the said two judgments, the provisions of Section
45(2) or of Section 2 (1)

(v) Or of Section 28 or Section 29 of the Trade Marks Act were noticed or

discussed. Thus, it cannot be said that the reasoning which prevailed with the
Madras High Court to hold that till the date of transfer in the office of the
Registrar, the party cannot claim to be the registered proprietor of the
trademark, has been considered by this court.

8. I, however, find that not only in the aforesaid two cases, recently also
another Single Judge of this Court in Astrazeneca UK Ltd. and Anr. v. Orchid
Chemicals and Pharmaceuticals Ltd 2006 PTC 733 Delhi has also taken the
same view and held that the rights in the trademark come on the basis of
assignment deeds and the plaintiffs cannot be denied the rights in the trade
mark which IA.No. 6872/2008 in CS(OS) 1073/2008 Page No.5 of 17 they
have got on the basis of the assignment deeds in their favour on the ground
that in the records of the Registrar of Trade Marks, the trade mark is still
shown in the name of the assignor.

9. Though the reasoning given by the Madras High Court appears to be

attractive, especially in view of the peremptory language of Section
45(2) prohibiting the court from admitting into evidence the deed of
assignment unless registered by the Registrar but I am inclined to follow the
same reasoning as consistently followed by this court, for two reasons. Firstly,
the Apex Court also in Collector of Central Excise v. Vikshara Trading and
Invest. P. Ltd 2003 (27) PTC 603 SC, though not directly concerned with the
issue, held:

642
"When as a matter of fact it is held that there was an assignment in favour of
the first respondent and that fact was not in serious dispute, the mere fact that
the assignment was not registered, could not alter the position."

I am conscious that the aforesaid observation by the Apex Court may not be
construed as a ratio laid down by the Apex Court but the same shows the
preference by the Apex Court also, of the view taken by this court rather than
of the view taken by the Madras High Court.

10. I also find that the Madras High Court in judgment (supra) did not
consider earlier judgment of its Division Bench in T.I. Muhammad Zumoon
Sahib v. Fathimunnissa AIR 1960 Mad 80 holding that registration of
assignment is not a condition precedent to an action for infringement by the
assignee and an assignee of IA.No. 6872/2008 in CS(OS) 1073/2008 Page
No.6 of 17 registered trademarks will not be disentitled to an action for
infringement on the ground that the assignment was not registered. Thus it
cannot really be said that the view of the Madras High Court is different from
consistent view of this court.

11. I also find that under Section 2(1)(w) a registered trade mark is a trade
mark which is on the Register and is in force. Registered trade mark is thus
different from registered proprietor. Assignment under Section 2(b) is an
assignment in writing by act of parties concerned. Assignment does not
require registration. The Register of Trade Mark under Section 6 is to contain
trademarks with the name etc of proprietor. Section 37 empowers the person
entered in the Register as proprietor of trade make to assign the same. Section
38 makes the trade mark a traceable property/commodity subject to
restrictions in Sections 40 to 44. Thus registered trade mark is different from
proprietor thereof. Thereafter, Section 45(1) provides "where a person
becomes entitled by assignment ....to a registered trade mark, he shall apply in
the prescribed manner to the Registrar to Register his title....." meaning
thereby that assignment of title in registered trade mark is complete on
assignment within the meaning of Section 2(b), i.e., on writing between the
assignor and the assignee. For assignment to be complete, the Registrar is not
involved. It is further borne out from language supra of Section 45(1) that the

643
assignee acquires title to registered trade mark on assignment and not by
registration. Registration is of title acquired by assignment. The inquiry which
a Registrar is to make before such registration of title acquired by assignment
is of satisfaction of proof of title and as to disputes if any as to assignment.
This inquiry is limited to this IA.No. 6872/2008 in CS(OS) 1073/2008 Page
No.7 of 17 extents only in contradistinction to inquiry which the Registrar is to
make before registering a trade mark. A dispute as to assignment can be raised
by the assignor or by some person claiming prior assignment and not by
strangers or by persons claiming adversely to the assignor.

12. It follows that the assignee immediately on assignment i.e., by writing

acquires title to the registered trade mark. Registration under Section 45(1) is
"on proof of title". Thus title exists in assignee even before registration
under Section 45(1).

13. The next question which arises is, if title in registered trade mark vests in
assignee, after assignment and before registration, which is entitled to exercise
rights under Section 28 as registered proprietor. If the interpretation canvassed
by defendant herein is to be adopted it will amount to allowing a person who
is divested by assignment of title to registered trade mark to nevertheless
continue exercising such rights; it would play havoc with assign ability and
trading in trade marks, expressly permitted under the Act. If the person in
whom title has vested by assignment, is held to be not entitled to exercise such
rights owing to non registration, the same result will follow, besides giving a
premium to third parties. In that situation, in the interregnum there will be
none to enforce rights in the registered trade mark. "Registered proprietor"
inSection 28, rather than adopting a pedantic interpretation has to be
interpreted as including a person having title as registered proprietor by way of
assignment or transmission.

IA.No. 6872/2008 in CS(OS) 1073/2008 Page No.8 of 17

14. It is also worth noting that what appears to have prevailed with the Madras
High Court was the inaction of the plaintiff therein to have applied to the
Registrar. In the present case, however, the plaintiff had applied for

644
registration as far back as in the year 2000. There is nothing to show that the
plaintiff is in any way to blame for the Registrar having not decided either way
on the application of the plaintiff. In the circumstances the maxim actus cureae
neminem gravabit - an act of court shall prejudice no man and lex non cogit ad
impossibilia - the law does not compel a man to do that which he cannot
possibly perform, would also become applicable. The plaintiff cannot be made
to suffer for the actions of the Registrar. It has been held in A.P. Electricity
Regulatory Commission v R.V. K. Energy Pvt Ltd JT 2008 (7) SC 138:
Manu/SC 2615/2008 that these principles apply to quasi judicial bodies as
well. It is also significant that the registration, if affected shall date back to the
date of the application.

15. Secondly and more importantly, though Section 45(2) couched in

peremptory language, is however subject to a direction to the otherwise of the
court. The ultimate decision, therefore, is of the court, whether to admit into
evidence or place reliance on any document of assignment or transmission of
trade mark, inspite of the same being not entered in the Register. The
legislature has thus after laying down the general rule of an unregistered
document of assignment being not admissible in evidence, still left the
discretion in the court, to be of course exercised in accordance with law and
depending on facts and circumstances of each case. Section 45(2) appears to
have been inserted more for the reason of ensuring the enforcement of Section
45(1). In the absence of Section, IA.No. 6872/2008 in CS(OS) 1073/2008
Page No.9 of 17 assignees of registered trade mark would not have bothered to
apply for registration with the Registrar and which would have led to disputes
as to who is the registered proprietor. It is in the nature of Section 35 of the
Stamp Act prohibiting the courts from admitting into evidence documents not
duly stamped. However, the intent there also is not to extinguish the rights
under the documents but only to ensure collection of stamp duty. This
provision is unlike that of Registration Act, where under there can be no
conveyance of title without a registered document. For the same reason, the
latter part of Section 45(2), after providing for the prohibition provides
"unless.... the court otherwise directs." Seen in this light, the contention of the

645
counsel for the plaintiff that there can be no hiatus and the title as registered
proprietor cannot remain in abeyance is well founded.

16. I thus find that the plaintiff notwithstanding being not registered is entitled
to exercise rights as a registered proprietor of trade mark THEOBID.

17. The mark adopted by the defendant is identical to the plaintiff's registered
trade mark. The counsel for the defendant, however, contends that the plaintiff
is not entitled to the interim relief for the reason of having approached this
court with unclean hands. It is stated that the plaintiff had approached this
court with a case that it/its predecessor had extensively used the said trade
mark. However, upon the defendant challenging the said position, the plaintiff
has given up the said case. It is further urged that the essence of the mark is in
use thereof and without the plaintiff or IA.No. 6872/2008 in CS(OS)
1073/2008 Page No.10 of 17 anyone else using the trade mark, no injunction
ought to be granted in favour of the plaintiff especially when the defendant has
filed documents showing extensive use of the mark for the last several years.
The counsel for the defendant has in this regard relied upon the Division
bench judgment of this court in Veerumal Praveen Kumar v Needle Industries
(India) Ltd & Another 2001(21) PTC 889 (Del).

It is further argued that when the defendant is in a position to compensate the

plaintiff and has been in use of mark since long, no injunction should be
granted. Judgments have been cited on this aspect.

18. As far as the argument of exercise of discretion in favour of plaintiff is

concerned, it does not appear that the plaintiff approached the court with
unclean hands. The plaintiff pleaded that the trademark had been extensively
used by its predecessor but notwithstanding the plaintiff claiming assignment
in 1998, it was pleased that the plaintiff had been using the mark since January
2008 only. In replication the plaintiff clarified that the plaintiff had reason to
believe that its predecessor had used the trade mark since 1985 but the
plaintiff was not handed over any evidence to that effect. The plaintiff for the
purposes of interim relief gave up the said ground. In the circumstances I do

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not find plaintiff guilty of any such conduct, as to be disentitled to interim
relief.

19. The next question is with respect to use of the Trade Mark. Even as per the
plaintiff, the plaintiff after assignment in 1998, IA.No. 6872/2008 in CS(OS)
1073/2008 Page No.11 of 17 started using the mark only in January 2008. The
defendant contends that in fact there is still no use and transactions of sale
alleged are sham, being to share holders of plaintiff. Whether a registered
owner of trade mark by disuse is disentitled to restrain its infringement. Trade
Mark in Section 2(1) (Zb) is defined, inter alia, as mark "capable" of
distinguishing goods of one person from another; paragraphs (i) and (ii)
thereof contain the expression "used". However, in the present case the trade
mark is registered and under Section 31, registration is prima facie evidence of
validity. The other relevant provision is Section 47 which empowers the
Registrar to take off the mark from Register if the same was registered without
bonafide intention to use or if there has been no bonafide use of trade mark.
Otherwise, Sections 28 and 29 do not make use of registered trade mark as a
precondition to obtain relief against infringement. The scheme of the Act thus
appears to be, to vest jurisdiction for removal from Register on the ground of
non user, in the Registrar. In my view, if a defendant in a suit for
infringement, without seeking remedies under Section 47 before the Registrar,
is permitted to set up pleas of non use, the same will undermine the efficacy of
Registration and the presumption of validity of registration under Section of
the Act. The Apex Court in American Home Products Corporation v Mac
Laboratories Pvt Ltd AIR 1986 SC 137 has held that in a proceeding
under Section 47, the burden of proving the facts is on the person who seeks to
have the trade mark removed from the Register. The Apex Court in this case
has also dealt in extenso with the subject of trafficking in trade marks. Even in
In Re American Greetings Corporation Application (1983) 2 All E.R., 609
quoted with approval by Apex Court, Lord Brightman of the House of Lords
IA.No. 6872/2008 in CS(OS) 1073/2008 Page No.12 of 17 (1984) 1 All E.R.
426 held that the courts have to delineate trafficking in trademarks which is
forbidden - only that is forbidden which is dealing in trade mark primarily as a
commodity in its own right and not primarily for the purpose of identifying or

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promoting merchandise in which the proprietor of the mark is interested - if
there is no real trade connection between the proprietor and the goods, there is
room for conclusion that transaction is of trafficking. The law laid down thus
appears to be that trade mark cannot be got registered and held by persons as
"investors" only and with no intention whatsoever to use the same in
connection with any goods and services. Even though I feel that in present
times of encouraging creativity and rights in "abstract properties" viz in
domain names, there should be no bar to professionals / intellectuals creating
rights in marks and being permitted to profiteer from them and there is a need
for re-think on this position, I find that even within the frame work of the
existing law, in the present case, there is sufficient trade connection between
the registered trade mark and the business/activities of the plaintiff and the
plaintiff cannot be termed as a meer trafficker in the trade mark. The Apex
Court itself noted the complexities and delays in modern times in starting a
business and without the mark being taken off the Register, I find that action
for infringement of registered trade mark cannot be defeated for disuse. We
have in recent times also seen new scientific research finding well known
brands in the field of pharmaceuticals to be harmful and the said research
findings being reversed after a decade or more. It would be travesty to allow to
be extinguished rights in such well known brands in the interregnum. Such
rights have come to be known as "intellectual properties" and there is no
reason why facets of IA.No. 6872/2008 in CS(OS) 1073/2008 Page No.13 of
17 tangible property which can be bought and retained by persons who have
no use therefor and merely as investors, ought not to apply to "intellectual
property" as well. In present day times of surrogacy, when the child may not
belong to the mother from whose womb born and of sale for premium of
automobile number plates, there is no reason why insistence on owners using
or intending to use the mark or why restrictions in the name of trafficking,
ought to continue vis-à-vis trade marks.

20. I also do not find the registered trade mark to have been abandoned in the
present case. It has been traded and purchased for consideration by the
plaintiff. The plaintiff applied for registration under Section 45(1). The
plaintiff opposed the registration sought by the defendant and has instituted

648
the present suit restraining infringement. Just like a trade make can be used by
advertising, so is it being used in the present case by pursuing registration and
seeking protection thereof. Section 2(2) of the Act in clause (b) permits use of
printed representation of mark also, not necessarily for sale of goods.

21. In Veerumal Praveen Kumar (supra) the Division Bench found a case of
abandonment and no likelihood of deception. However, in the present case the
plaintiff has been exercising rights with respect to the mark and has also
pleaded sales thereunder i.e. January, 2008. In these circumstances, the
principles laid down by Division Bench are not applicable. The plaintiff as
registered owner cannot be injected. The result would be the existence in the
market of different products under IA.No. 6872/2008 in CS(OS) 1073/2008
Page No.14 of 17 the same trade mark and which cannot be permitted. The
plaintiff in the present case has claimed use and expressed intent to use and the
correctness thereof is to be tested in trial and at this stage the rights of the
registered owner are to be protected. The Apex Court in Ruston & Hornsby
Ltd. v. The Zamindara Engineering Co AIR 1970 SC 1649, relied on by the
counsel for the plaintiff, held that an action for infringement of trade mark is
not dependent upon the plaintiff's use thereof and is a statutory right
dependent only on the validity of the registration. A Single Judge of this court
in Polson Ltd v Polson Dairy Ltd 56 (1994) DLT 102 discussed various
judgments of Indian and Foreign Courts, the preponderance of which appears
to be that a break in user of trade mark does not destroy its reputation and the
mark if distinctive survives and that if the registration of the mark exists
rightly or wrongly on the Register of trademarks, the court has no right to
ignore the same.

22. The counsel for the defendant has also contended that since the defendant
has been extensively using the mark for long ( and documents with respect to
which have been filed) the balance of convenience is not in favour of the
plaintiff and in merely directing the defendant to compensate the plaintiff for
damages if ultimately succeeds. However, the same would again be doing
violation to the language of the statute. If a registered proprietor is entitled to
maintain an action for injunction and found entitled to injunction, the

649
injunction ought not to be denied for the reason of the alternate relief of
directing accounts to be kept. The infringement of rights in a trademark can
never be sufficiently compensated and there is a possibility of great injury
being done to the mark if the defendant is permitted to continue using the
same. Moreover in a case as the IA.No. 6872/2008 in CS(OS) 1073/2008 Page
No.15 of 17 present where the registered owner as well as another are both
claiming user, the balance of convenience is in favour of registered user. I find
it more so since the defendant itself is an assignee having acquired the
unregistered mark only in 2007. The defendant before acquiring rights is
deemed to have made enquiries with the Registrar and is deemed to be in the
know of the mark being registered. The defendant thus has no equities in its
favour. Moreover, as aforesaid the plaintiff as registered owner cannot be
injected and two products with same mark in the pharmaceutical sector cannot
be permitted.

23. The counsel for the defendant has also argued that Section 12 of the Act
permits concurrent registration. It is also argued that the plaintiff itself is to
blame for its application pending since 2000; it is orally argued that there
could be no question of assignment "with goodwill" in favour of plaintiff as
the assignor of plaintiff was itself not using the trade mark and the plaintiff has
applied in wrong form to the Registrar, hence the delay. I find that if the
defendant had any grievance with respect to any of these aspects, the
defendant ought to have approached the Registrar. The defendant without
doing so, cannot raise such pleas which are in the domain of Registrar, when
an action for infringement is brought against it.

24. I find plaintiff entitled to interim order. The application is allowed. The
defendant, its directors, assignees, distributors, dealers are, during the
pendency of suit restrained from manufacturing, selling or dealing in
medicinal preparations under IA.No. 6872/2008 in CS(OS) 1073/2008 Page
No.16 of 17 the trade mark THEOBID-D or any other trade mark as may be
deceptively similar with trade mark THEOBID of the plaintiff. However, in
view of prima facie extensive use by defendant since 2007, and so as to enable

650
the defendant to without disturbing its business, effect the change, this order
shall be operative i.e., one month hereof.

RAJIV SAHAI ENDLAW (JUDGE) October 03, 2008 M IA.No. 6872/2008

in CS(OS) 1073/2008 Page No.17 of 17

7.1.8

Rama Pandey vs Union of India & Ors. On 17 July, 2015

Child was fulfilled on 09.02.2013, albeit via the surrogacy route. Her
bundle of joy comprised of twins, who were born ... written agreement dated
08.08.2012 (in short the surrogacy agreement). 2. The fact that
the surrogacy agreement reached fruition, is exemplified

Delhi High Court

Rama Pandey vs Union of India & Ors. On 17 July, 2015

Author: Rajiv Shadier

IN THE HIGH COURT OF DELHI AT New Delhi

Judgment reserved on: 12.12.2014

Judgment delivered on: 17.07.2015
WP(C) No. 844/2014
RAMA PANDEY ..... PETITIONER
Versus
UNION OF INDIA & ORS. ..... RESPONDENTS
Advocates who appeared in this case:
For the Petitioner:
Mr Sunil Kumar and Mr Rahul Sharma, Advocates
For the Respondents:
Mr Jasmeet Singh, CGSC with Ms Kritika Mehra, Adv. for R-1.
Mr S. Rajappa & Dr. Puran Chand, Advs. for R- 2 & 3.
CORAM:

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HON'BLE MR. JUSTICE RAJIV SHAKDHER
RAJIV SHAKDHER, J

FACTS

1 A synthesis of science and divinity (at least for those who believe in it), led
to the culmination of the petitioner's desire for a child. Married, on
18.01.1998, to one Sh. Atul Pandey, the petitioner's, wish to have a child was
fulfilled on 09.02.2013, albeit via the surrogacy route. Her bundle of joy
comprised of twins, who were born on the aforementioned date, at a city
hospital.

1.1 To effectuate the aforesaid purpose, the petitioner had entered into 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
geneticfather 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 rights and obligations of the commissioning parents, as also
those of the surrogate mother, were reduced to a written agreement dated
08.08.2012 (in short the surrogacy agreement).

2. The fact that the surrogacy agreement reached fruition is exemplified by the
birth of twins, as indicated above, on 09.02.2013. This far, the petitioner was
happy; her unhappiness, however, commenced with rejection of her
application dated 06.06.2013, for grant of maternity and Child Care Leave
(CCL). By this application, the petitioner sought 180 days maternity leave and
3 months CCL. This application was addressed to respondent no.3, with a
copy to respondent no.2.

2.1 Respondent no.3 vides a covering letter of even date, i.e., 06.06.2013,
forwarded the petitioner's application to respondent no.2, and along with the
requisite documents i.e. the surrogacy agreement and the birth certificate of

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the children. Respondent no.3, sought clarification with regard to the request
made by the petitioner for sanctioning the maternity leave. A perusal of the
covering letter would show that the leave sought for the purposes of child care
was not being objected to. A doubt was raised only qua maternity leave.

2.2 Evidently, video communication dated 10.10.2013, petitioner's request was

rejected by respondent no.3, based on, inputs received from respondent no.2
vide two communications dated 04.09.2013 and 19.09.2013. The first
communication appears to have been sent by Kendriya Vidyalaya Sangathan
(KVS), [Headquarters], while the second was, evidently, sent by KVS (D.R.).
These communications, though, are not on record 2.3 in sum, it was conveyed
to the petitioner that there was no provision for grant of maternity leave in
cases where the surrogacy route is adopted. The petitioner was, however,
informed that the CCL could be sanctioned, in her favour, under Rule 43-A,
which was applicable to "female government servants". It now transpires that
reference ought to have been made to Rule 43 and not Rule 43-A; a fact which
was confirmed by the counsel for respondent no.2 and 3.

2.4 In the background of the aforesaid stand, the petitioner was requested to
submit an application for CCL, in case she was desirous of availing leave on
that account.

3. The petitioner being aggrieved, approached this court by way of the instant
petition, filed, under Article 226 of the Constitution. Notice on this limited
aspect was issued in the writ petition on 05.02.2014. Though counsels for
parties were asked to file written submissions; except for respondent no. 2
none of the other parties filed written submissions in the matter. Counsels for
respondents have not filed any counter affidavit in the matter. The reason for
that, perhaps would be, that the facts in the matter are not in dispute. The issue
raised in the writ petition is, a pure question of law.

4. I may only note that on 10.02.2015, respondents placed before this court an
office memorandum dated 09.02.2015, issued by the Ministry of Personnel,
Public Grievances, Pensions, Department of Personnel and Training (DoPT),

653
Govt. of India which, in turn, relied upon the office memorandum dated
09.01.2015, issued by the Ministry of Human Resources and Development.

4.1 The stand taken, based on the said office memorandums, was that, there
was no provision for grant of maternity leave to female employees, who took
recourse to the surrogacy route for procreating a child. Furthermore, it was
indicated that for grant of "adoption leave", a valid adoption had to be in
place.

4.2 Having said so, the DoPT recommended grant of maternity/ adoption leave
to the petitioner keeping in mind the welfare of the child and, on consideration
of the fact that the child was in her custody. The recommendation made was,
that, not only should the petitioner be allowed 180 days of leave as was
permissible in situations dealing with maternity leave / adoption leave but that
she, should also be allowed, CCL, in case, an application was made for the
said purpose. It was further indicated that the said two sets of leave would not
be adjusted from the petitioner's leave account. The said recommendation was,
however, made without prejudice to the policy, rules and/or instructions that
the government may frame in that behalf in due course.

4.3 In the light of the aforesaid development, the counsel for both parties
indicated that since the answer to the issue of law remains unarticulated
(though the grievance of the petitioner may have been redressed); this court
ought to deliberate upon the same and pronounce its judgment in the matter.
4.4 It is based on the stand taken by the counsels for the parties; I proceed to
decide the issues rose, in the matter.

SUBMISSIONS OF COUNSELS

5. The counsel for the petitioner has equated the position of a commissioning
mother to that of a biological mother who bears and carries the child till
delivery. It is the submission of the learned counsel for the petitioner, that
more often than not, as in this case, the commissioning parents have a huge
emotional interest in the well-being of both the surrogate mother and the child,
which the surrogate mother carries, albeit under a contractual arrangement.

654
The well-being of the child and the surrogate mother can best be addressed by
the commissioning parents, in particular, the commissioning mother. This
object, according to the learned counsel, can only be effectuated, if maternity
leave is granted to the commissioning mother.

5.1 The fact that a commissioning mother has been judicially recognized as
one who is similarly circumstanced, as an adoptive mother, was sought to be
established by placing reliance on the judgment of the Madras High Court in
the case of: K. Kalaiselvi vs Chennai Port Trust, dated 04.03.2013, passed in
WP(C) No. 8188/2012.

6. Counsels for the respondents, on the other hand, while being sympathetic to
the cause of the petitioner, expressed their disagreement with the submission
that maternity leave could be extended to the petitioner or female employees
who are similarly circumstanced.

6.1 Mr. Rajappa, who appeared for respondent no. 2 and 3, in particular, made
submissions, which can be, broadly, paraphrased as follows:

(i) There is no provision under the extant rules for granting maternity leave to
women who become mothers via the surrogacy route. Therefore, in law, no
entitlement to maternity leave, in these circumstances, inhered in the
petitioner.

(ii) The prime objective for grant of maternity leave is to protect the health and
to provide safety to pregnant women in workplace, both during pregnancy and
after delivery. Lactating mothers, who need to breast-feed their children, fall
within a "specific risk group", and hence, are given maternity leave, based on
factors which are relatable to safety and health parameters.

(iii) A woman, who gives birth to a child, undergoes mental and

physical fatigue and stress and, is often, subjected to confinement both during
and after pregnancy. These circumstances do not impact the commissioning
mother, who takes recourse to the surrogacy route. Therefore, there is no
justification for according maternity leave in such like cases.

655
(iv) If leave is granted to the commissioning mother, it could set a precedent
for grant of leave in future to a single male or female parent or to same sex
parents as well, who may take recourse to the surrogacy route.

(iv)(a). Therefore, the legislature would be the best forum for the enactment of
necessary rules/ regulations to deal with such like situations, including the
situation which arose in the present case.

(v) In the K. Kalaiselvi's case, the Madras High Court was interpreting Rule 3-
A of the Madras Port Trust (Leave) Regulations, 1987, pertaining to leave,
made available, to female employees on adoption of a child. The court, in that
case, equated the circumstances which arise in the case of the adoptive mother
with those which emerge in the case of a female employee, who takes recourse
to a surrogacy route. Accordingly, Rule 3-A of the aforementioned regulations
was interpreted to include a female employee who ventured to have a child via
a surrogate arrangement. Such parity, in principle, was erroneous for the
following reasons: Firstly, in the absence of a valid adoption, the relevant
Rule, in the instant case, does not get triggered. Secondly, such an
interpretation would involve re-writing of the Rules by reading adoptive
parent as the Commissioning Parent. REASONS

7. I have heard the learned counsels for the parties. According to me, what
needs to be borne in mind is this: there are two stages to pregnancy, the pre-
natal and post-natal stage. Biologically pregnancy takes place upon union of
an ovum with spermatozoon. This union results in development of an embryo
or a foetus in the body of the female. A typical pregnancy has duration of 266
days from conception to delivery. The pregnancy brings about physiological
changes in the female body which, inter alia, includes nausea (morning
sickness), enlargement of the abdomen etc1. 7.1 Pregnancy brings about
restriction in the movement of the female carrying the child as it progresses
through the term. In case complications arise, during the term, movement of
the pregnant female may get restricted even prior to the pregnancy reaching
full term. It is for these reasons that maternity leave of 180 days is accorded to
pregnant female employees. 7.2 Those amongst pregnant female employees,
who are constitutionally strong and do not face medical complications, more

656
often than not, avail of a substantial part of their maternity leave in the period
commencing after delivery. Rules and regulations framed in this regard by
most organizations, including those applicable to respondent no.3, do not
provide for bifurcation of maternity leave, that is, division of leave between
pre-natal and post-natal stages.

7.3 The reason, perhaps, why substantial part of the leave is availed of by the
female employees (depending on their well-being), post delivery, is that, the
challenging part, of bringing a new life into the world, begins thereafter, that
is, in the post-natal period. There are other factors as well, which play a part in
a pregnant women postponing a substantial part of her maternity leave till after
delivery, such as, family circumstances (including the fact she is part of a
nuclear family) or, the health of the child or, even the fact that she already has
had successful deliveries; albeit without sufficient time lag between them.

8. Thus, it is evident that except for the physiological changes and Dorland's
Illustrated Medical Dictionary, 30th Edition, Saunders Publication difficulties,
all other challenges of child rearing are common to all female employees,
irrespective of the manner, she chooses, to bring a child into this world.

9. But the law, as it stands today, and therefore, the rules and regulations as
framed by most organizations do not envisage attainment of parenthood via
the surrogacy route.

9.1 It is not unknown, and there are several such examples that legislatures,
usually, in most situations, act ex-post facto. Advancement in science and
change in societal attitudes, often raise issues, which require courts to infuse
fresh insight into existing law. This legal technique, if you like, is often
alluded to as the "updating principle". Simply put the court by using this
principle, updates the construction of a statute bearing in mind, inter alia, the
current norms, changes in social attitudes or, even advancement in science and
technology. The principle of updating resembles another principle which the
courts have referred to as the "dynamic processing of an enactment". The
former is described in Bennion on Statutory Interpretation at page 890 in the
following manner:-

657
"..An updating construction of an enactment may be defined as a construction
which takes account of relevant changes which have occurred since the
enactment was originally framed but does not alter the meaning of its wording
in ways which do not fall within the principles originally envisaged by that
wording. Updating construction resembles so-called dynamic interpretation,
but insists that the updating is structured rather than at large. This structuring
is directed to ascertaining the legal meaning of the enactment at the time with
respect to which it falls to be applied. The structuring is framed by reference
to specific factors developed by the courts which are related to changes which
have occurred (1) in the mischief to which the enactment is directed, (2) in the
surrounding law, (3) in social conditions, (4) in technology and medical
science, or (5) in the meaning of words..."

9.2 The updating principle on account of development of medical science and

technique was applied in the following case: R vs. Ireland, [1998] AC

147. 9.3 Similarly, change in social conditions have persuaded courts to apply
the updating construction principle to inject contemporary meaning to the
words and expressions used in the existing statute. See : Williams and Glyn's
Bank Vs. Boland, [1981] AC 487 at page 511 placetum 'D' and R Vs. D,
[1984] AC 778.

9.4 In respect of dynamic processing, the following observations in Bennnion

on Statutory Interpretation, 5th Edition, at page 502, being apposite, are
extracted hereinafter :-

"..Few Acts remain for very long in pristine condition. They are quickly
subjected to a host of processes. Learned commentators dissect them. Officials
in administering them develop their meaning in practical terms. Courts
pronounce on them. Donaldson J described the role of the courts thus:

'The duty of the Courts is to ascertain and give effect to the will of Parliament
as expressed in its enactments. In the performance of this duty the Judges do
not act as computers into which are fed the statutes and the rules for the
construction of statutes and from whom issue forth the mathematically correct

658
answer. The interpretation of statutes is a craft as much as a science and the
judges as craftsmen, select and apply the appropriate rules as the tools of their
trade. They are not legislators, but finishers, refiners and polishers of
legislation which comes to them in state requiring varying degrees of further
processing. When practitioners come to advise upon the legal meaning, they
need to take account of all this. The Act is no longer as Parliament enacted it;
it has been processed.."(emphasis is mine) 9.5 The fact that this is a legitimate
interpretative tool, available to courts, is quite evident upon perusal of the ratio
of the following judgments.

9.6 A classic example of application of the updating of construction principle,

is the judgment, in the case of Fitzpatrick vs Sterling Housing Association Ltd,
1999 (4) All E.R. 705, where the word 'family' was read to include two
persons of same sex who were cohabitating and living together for a long
period of time with a mutual degree of inter-dependence. 9.7 This is an
interesting case where the court while applying the afore- stated principle
interpreted the meaning of the word, 'family', by having regard to the prevalent
social habits and attitudes. In this case, the plaintiff, who was the appellant
before the House of Lords, had approached the court for protection from
eviction on the ground that he had lived in a stable relationship with the
original tenant of the same sex, who had since then died. The defendant /
respondent (i.e. landlord) declined to recognize him as a tenant as he was
neither the wife nor the husband of the original tenant. The courts below had
accepted the plea of the respondent/defendant (i.e. the landlord). The House of
Lords while allowing the appeal by a majority of 3:2 made the following
apposite observations. The discussion thus veered around whether the
appellant/plaintiff was the spouse of the original tenant.

"...It is not an answer to the problem to assume (as I accept may be correct)
that if in 1920 people had been asked whether one person was a member of
another same-sex person's family the answer would have been "No". That is
not the right question. The first question is what were the characteristics of a
family in the 1920 Act and the second whether two same-sex partners can
satisfy those characteristics so as today to fall within the period "family". An

659
alternative question is whether the word "family" in the 1920 Act has to be
updated so as to be capable of including persons who today would be regarded
as being of each other's family, whatever might have been said in 1920. See :
R v Ireland [1998] AC 147, 158, per Lord Steyn; Bennion, Statutory
Interpretation, 3rd ed (1997), p 686 and Halsbury's Laws of England, 4th ed
reissue, vol 44 (1) (1995), p 904, para 1473...

..It seems to be suggested that the result which I have so far indicated would
be cataclysmic. In relation to this Act it is plainly not so. The onus on one
person claiming that he or she was a member of the same-sex original tenant's
family will involve that person establishing rather than merely asserting the
necessary indicia of the relationship. A transient superficial relationship will
not do even if it is intimate. Mere cohabitation by friends as a matter of
convenience will not do. There is, in any event, a minimum residence
qualification; the succession is limited to that of the original tenant. Far from
being cataclysmic it is, as both the judge in the country court and the Court of
Appeal appear to recognize, and as I consider, in accordance with
contemporary notions of social justice. In other statutes, in other contexts, the
same meaning may or not be the right one. If a narrower meaning is required,
so be it. It seems also to be suggested that such a result in this statute
undermines the traditional (whether religious or social) concepts of marriage
and the family. It does nothing of the sort. It merely recognizes that, for the
purposes of this Act, two people of the same sex can be regarded as having
established membership of a family, one of the most significant of human
relationships which both gives benefits and imposes obligations.."

[Also see : Ghaidan v. Mendoza, 2002 (4) All E.R. 1162; Goodwin vs U.K.,
(2002) 2 FCR 577; Bellinger vs Bellinger, (2002) 1 All E.R. 311 (dissenting
judgment of Thorpe LJ at page 335) and A. vs West Yorkshire Police, 2004
(3) All E.R. 145].

9.8 A constitution bench of our Supreme Court in the case of State (through
CBI) Vs. S.J. Choudhary, (1996) 2 SCC 428 applied the updating construction
principle when it was faced with an issue whether the opinion of a typewriter
expert would be admissible in evidence in view of the language employed

660
in Section 45 of the Indian Evidence Act, 1872 (in short the Indian Evidence
Act). The objection taken by the accused in a criminal proceeding, which was
sustained right up to the High Court was based upon observations in an earlier
judgment of the Supreme Court in Hanumant Vs. State of Madhya Pradesh,
1952 SCR 1091 that the opinion of a typewriting expert was not admissible.
The Constitution Bench of the Supreme Court ruled otherwise and while doing
so, adverted to the updating construction principle by reading into the word,
'science' which appeared alongside the expression, 'handwriting' to include a
person who was an expert in typewriters. The following observations of the
Supreme Court being apposite are extracted hereinafter :-

"..10. Statutory Interpretation by Francis Bennion, Second edition, Section 288

with the heading "Presumption that updating construction to be given" states
one of the rules thus: " xxx xxx xxx It is presumed that Parliament intends the
court to apply to an ongoing Act a construction that continuously updates its
wording to allow for changes since the Act was initially framed (an updating
construction). While it remains law, it is to be treated as always speaking. This
means that in its application on any date, the language of the Act, though
necessarily embedded in its own time, is nevertheless to be construed in
accordance with the need to treat it as current law.

xxx In the comments that follow it is pointed out that an ongoing Act is taken
to be always speaking. It is also, further, stated thus:

"In construing an ongoing Act, the interpreter is to presume that Parliament

intended the Act to be applied at any future time in such a way as to give
effect to the true original intention. Accordingly the interpreter is to make
allowances for any relevant changes that have occurred, since the Act's
passing, in law, social conditions, technology, the meaning of words, and other
matters. Just as the US Constitution is regarded as 'a living Constitution', so an
ongoing British Act is regarded as 'a living Act'. That today's construction
involves the supposition that Parliament was catering long ago for a state of
affairs that did not then exist is no argument against that construction.
Parliament, in the wording of an enactment, is expected to anticipate temporal
developments. The drafter will try to foresee the future, and allow for it in the

661
wording. xxx xxx An enactment of former days is thus to be read today, in the
light of dynamic processing received over the years, with such modification of
the current meaning of its language as will now give effect to the original
legislative intention. The reality and effect of dynamic processing provides the
gradual adjustment. It is constituted by judicial interpretation, year in and year
out. It also comprises processing by executive officials."

11. There cannot be any doubt that the Indian Evidence Act, 1872 is, by its
very nature, an 'ongoing Act.'

12. It appears that it was only in 1874 that the first practical typewriter made
its appearance and was marketed in that year by the E. Remington and Sons
Company which later became the Remington typewriter - Obviously, in
the Indian Evidence Actenacted in 1872 typewriting could not be specifically
mentioned as a means of writing in Section 45 of the Evidence Act. Ever since
then, technology has made great strides and so also the technology of
manufacture of typewriters resulting in common use of typewriters as a
prevalent mode of writing. This has given rise to development of the branch of
science relating to examination of questioned typewriting...."

(emphasis is mine) 9.9 Similarly, the Supreme Court in two other cases
recognized the progress of science and technology by bringing in line, the
scope and meaning of the words and expressions used in existing statutes, with
current norms and usage. The first case is the judgment delivered in Senior
Electric Inspector vs Laxminarayan Chopra, (1962) 3 SCR 146, where it held,
that the expression 'telegraph line' in the Indian, 1885 would include a wireless
telegraph having regard to the change in technology.

10. The second case is the judgment in M/s. Laxmi Video Theatres and Ors.
Vs. State of Haryana and Ors., (1993) 3 SCC 715. In this case, the definition
of the word 'cinematograph' as contained in Section 2(c) of the Cinematograph
Act, 1952 was held to cover video cassette recorders and players for
representation of motion pictures on television screen. 10.1 Also See State of
Maharashtra Vs. Dr. Praful B. Desai, (2003) 4 SCC 601.

662
11. With the advent of New Reproductive Technologies (NRT) or what are
also known as Assisted Reproductive Technologies (ART), (after the birth of
the first test-tube baby Louise Joy Brown, in 1978), there has been a veritable
explosion of possibilities for achieving and bringing to term a pregnancy. It
appears that in future one would have three kinds of mothers:

(i) a genetic mother, who donates or sells her eggs;

(ii) A surrogate or natal mother, who carries the baby; and

(iii) A social mother, who raises the child.2

11.1 India's first test-tube baby Kanupriya alias Durga, brought to fore the use
of similar technology in India. The reproduction of children by NRTs or ARTs
raises several moral, legal and ethical issues. One such legal issue arises in the
instant case.

11.2 Though the science proceeded in this direction in the late 1970, the
practice of having children via surrogacy is, a more recent phenomena. The
relevant leave rules were first framed in 1972; to which amendments have
been made from time to time. While notions have changed vis-a-vis
parenthood (which is why provisions have been incorporated for paternity
leave; an aspect which I will shortly advert to), there appears to be an inertia in
recognizing that motherhood can be attained even via surrogacy. 11.3 Rule 43
implicitly recognizes that there are two principal reasons why maternity leave
is accorded. First, that with pregnancy, biological changes See: Feminist
Perspectives on Law, Chapter 4: Facilitating Motherhood, pages 121-
123 occur. Second, post childbirth "multiple burdens" follow. (See : C-366/99
Griesmar, [2001] ECR 1-9383) 11.4 Therefore, if one were to recognise even
the latter reason the commissioning mother, to my mind, ought to be entitled
to maternity leave. 11.5 It is clearly foreseeable that a commissioning mother
needs to bond with the child and at times takes over the role of a breast-
feeding mother, immediately after the delivery of the child.

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11.6 In sum, the commissioning mother would become the principal care giver
upon the birth of child; notwithstanding the fact that child in a given situation
is bottle-fed.

11.7 It follows thus, to my mind that the commissioning mother's entitlement

to maternity leave cannot be denied only on the ground that she did not bear
the child. This is dehors the fact that a commissioning mother may require to
be at the bed side of the surrogate mother, in a given situation, even at the pre-
natal stage; an aspect I have elaborated upon in the latter part of my judgment.

11.8 The circumstances obtaining in the present case, however, indicate that
the genetic father made use of a donor egg, which then, was implanted in the
surrogate mother.

11.9 The surrogate mother in this case had no genetic connection with the
children she gave birth to. The surrogate mother however, carried the
pregnancy to term.

12. Undoubtedly, the fact that the surrogate mother carried the pregnancy to
full term, involved physiological changes to her body, which were not
experienced by the commissioning mother but, from this, could one possibly
conclude that her emotional involvement was any less if, not more, than the
surrogate mother?

12.1 Therefore, while the submission advanced by Mr. Rajappa that maternity
leave is given to a female employee who is pregnant, to deal with biological
changes, which come about with pregnancy, and to ensure the health and
safety, both of the mother and the child, while it is in her womb, is correct; it
is, I am afraid, an uni-dimensional argument, offered to explain the meaning
of the term "maternity", as found incorporated in the extant rules.

12.2 The rules as framed do not restrict the grant of leave to only those female
employees, who are themselves pregnant as would be evident from the
discussion and reasons set forth hereafter. For this purpose, in the first
instance, I intend to examine the scope and effect of the Rules to the extent

664
relevant for the purposes of issues raised in the writ petition. 12.3 The word
'maternity' has not been defined in the Central Civil Services (Leave) Rules,
1972 (in short the Leave Rules), which respondents say are applicable to the
petitioner.

12.4 Rule 43, which makes provision for maternity, for the sake of
convenience, is extracted herein below:

"...43. Maternity Leave:

(1) A female Government servant (including an apprentice) with less than two
surviving children may be granted maternity leave by an authority competent
to grant leave for a period of (180 days) from the date of its commencement.

(2) During such period, she shall be paid leave salary equal to the pay drawn
immediately before proceeding on leave. NOTE :- In the case of a person to
whom Employees' State Insurance Act, 1948 (34 of 1948), applies, the amount
of leave salary payable under this rule shall be reduced by the amount of
benefit payable under the said Act for the corresponding period.

(3) Maternity leave not exceeding 45 days may also be granted to a female
Government servant (irrespective of the number of surviving children) during
the entire service of that female Government in case of miscarriage including
abortion on production of medical certificate as laid down in Rule 19:
`Provided that the maternity leave granted and availed of before the
commencement of the CCS (Leave) Amendment Rules, 1995, shall not be
taken into account for the purpose of this sub-rule'.

(4) (A) Maternity leave may be combined with leave of any other kind. (b)
Notwithstanding the requirement of production of medical certificate
contained in sub-rule (1) of Rule 30 or sub-rule (1) of Rule 31, leave of the
kind due and admissible (including commuted leave for a period not
exceeding 60 days and leave not due) up to a maximum of one year may, if
applied for, be granted in continuation of maternity leave granted under sub-
rule (1).

(5) Maternity leave shall not be debited against the leave account..."

665
12.5 A perusal of Rule 43 would show that a female employee including an
apprentice with less than two surviving children can avail of maternity leave
for 180 days from the date of its commencement. Sub-rule (3) of Rule 43 is
indicative of the fact that where the female employee has suffered a
miscarriage, including abortion, she can avail of maternity leave not exceeding
45 days. Importantly, clause (a) of sub-rule (4) of Rule 43, states that
maternity leave can be combined with leave of any other kind. Furthermore,
under clause (b) of sub-rule (4) such a female employee is entitled to leave of
the kind referred to in Rule 31(1) notwithstanding the requirement to produce
a medical certificate, subject to a maximum of two years, if applied for, in
continuation of maternity leave granted to her. Sub- rule (5) of Rule 43 states
that, maternity leave shall not be debited against leave account.

13. There are three other Rules to which I would like to refer to. These are
Rules 43-A, 43-AA and 43-B.

13.1 Rule 43-A3 deals with paternity leave available to a male employee for
the defined period, where “his wife" is confined on account of child birth. The
said Rule allows a male employee, including an apprentice, with less than two
surviving children, to avail of 15 days leave during the confinement of his
wife for child birth, that is, up to 15 days "before" or "up to 6 months" from
the date of delivery of the child.

13.2 Sub-rule (4) of Rule 43-A makes it clear that if paternity leave is not
availed of within the period specified above, such leave shall be treated as
lapsed.

13.3 Like in the case of a female employee, paternity leave can be combined
with leave of any other kind, and the said leave is not debited against the male
employee's leave account. This position emanates upon reading of sub-rule (3)
and sub-rule (4) of Rule 43-An above. 13.4 Rule 43-AA4 deals with paternity
leave made available, to a male 43-A. Paternity leave:

(1) A male Government servant (including an apprentice) with less than two
surviving children, may be granted Paternity Leave by an authority competent

666
to grant leave for a period of 15 days, during the confinement of his wife for
childbirth, i.e., up to 15 days before, or up to six months from the date of
delivery of the child.

(2) During such period of 15 days, he shall be paid leave salary equal to the
pay drawn immediately before proceeding on leave.

(3) The paternity Leave may be combined with leave of any other kind. (4)
The paternity leave shall not be debited against the leave account. (5) If
Paternity Leave is not availed of within the period specified in sub-rule (1),
such leave shall be treated as lapsed.

NOTE: - The Paternity Leave shall not normally be refused under any
circumstances.] 43-AA. Paternity Leave for Child Adoption. -

(1) A male Government servant (including an apprentice) with less than two
surviving children, on valid adoption of a child below the age of one year, may
be granted Paternity Leave for a period of 15 days within a period of six
months from the date of valid adoption. (2) During such period of 15 days, he
shall be paid leave salary equal to the pay drawn immediately before
proceeding on leave.

(3) The paternity leave may be combined with leave of any other kind. (4) The
Paternity Leave shall not be debited against the leave account.

Employee, for the defined period, albeit from the date of "valid adoption".
13.5 The aforementioned rule is pair materia with Rule 43-A, in all other
aspects; the only difference being that the paternity leave of 15 days available
to the male employee should be availed of within 6 months from the date of a
valid adoption.

13.6 Under the Leave Rules, a female employee is also entitled to leave if she
were to adopt a child as against taking recourse to the surrogacy route. In other
words, there is a provision in the Leave Rules for Child Adoption Leave. The
relevant provision in this behalf is made in Rule 43-B5.

667
(5) If Paternity leave is not availed of within the period specified in sub-rule
(1) such leave shall be treated as lapsed.

[Note 1]: - The Paternity Leave shall not normally be refused under any
circumstances.] [Note 2]: - "Child" for the purpose of this rule will include a
child taken as ward by the Government servant, under the Guardians
and Wards Act, 1890 or the personal law applicable to that Government
servant, provided such a ward lives with the Government servant and is treated
as a member of the family and provided such Government servant has,
through a special will, conferred upon that ward the same status as that of a
natural born child.] 43-B. Leave to a female Government servant on adoption
of a child: (1) A female Government servant, with fewer than two surviving
children, on valid adoption of a child below the age of one year may be
granted child adoption leave, by an authority competent to grant leave, for a
period of [180 days] immediately after the date of valid adoption. (2) During
the period of child adoption leave, she shall be paid leave salary equal to the
pay drawn immediately before proceeding on leave.

(3) (A) Child adoption leave may be combined with leave of any other kind.

(b) In continuation of the child adoption leave granted under sub-rule (1), a
female Government servant on valid adoption of a child may also be granted,
if applied for, leave of the kind due and admissible (including leave not due
and commuted leave not exceeding 60 days without production of medical
certificate) for a period up to one year reduced by the age of the adopted child
on the date of valid adoption, without taking into account child adoption leave.

Provided that this facility shall not be admissible in case she is already having
two surviving children at the time of adoption.

(4) Child adoption leave shall not be debited against the leave account.] [Note:
- "Child" for the purpose of this rule will include a child taken as ward by the
Government servant, under the Guardians and Wards Act, 1890 or the
personal Law applicable to that Government servant, provided such a ward
lives with the Government servant and is treated as a member of the family

668
and provided such Government servant has, through a special will, conferred
upon that ward the same status as that of a natural born child.] The said Rule
was substituted by notification dated 31.03.2006 and was published in the
gazette of India on 27.04.2006; to take effect from 31.03.2006.

It appears that prior to the insertion of Rule 43-B, the said rule was numbered
as 43-A and was inserted vide notification dated 22.10.1990, which was
published in the gazette of India, on 26.01.1991. The said notification was,
however, substituted by another notification dated 04.03.1992, which in turn
was published in the gazette of India on 14.03.1992.

13.7 Rule 43-B, which enables the female employee with fewer than two
surviving children, to avail of child adoption leave for a period of 180 days
affixes, inter alia, a condition that there should be in place a "valid adoption"
of a child below the age of one year. The period of 180 days commences
immediately after the date of valid adoption. [See sub-rule (1) of Rule 43-B]
13.8 Clause (a) of sub-rule (3) of Rule 43-B enables a female employee to
combine child adoption leave with leave of any other kind. Clause (b) of sub-
rule (3) of Rule 43-B, entitles a female employee in continuation of child
adoption leave granted under sub-rule (1), on valid adoption of a child to apply
for leave of the kind due and admissible (including leave not due and
commuted leave not exceeding 60 days without production of medical
certificates) for a period up to one year, albeit reduced by the age of adopted
child on the date of "valid adoption". In other words, this sub-rule allows a
female employee to apply for any other leave which is due and admissible in
addition to child adoption leave. There is, however, a proviso added to the said
sub-rule which prevents a female employee to avail of such leave if she
already has two surviving children at the time of adoption. 13.9 As in the other
rules, child adoption leave is not to be debited against the leave account.

14. Thus, a reading of Rule 43 would show that while it is indicated in sub-
rule (1) as to when the period of leave is to commence, that is, from the date of
maternity; the expression 'maternity' by itself has not been defined. As a
matter of fact, sub-rule (3) of Rule 43 shows that if the pregnancy is not

669
carried to full term on account of miscarriage, which may include abortion, a
female employee is entitled to leave not exceeding 45 days.

15. There are two ways of looking at Rule 43. One, that the word, 'maternity'
should be given the same meaning, which one may argue inheres in it, on a
reading of sub-rule (3) of Rule 43; which is the notion of child bearing. The
other, that the word "maternity", as appearing in sub-rule (1) of Rule 43, with
advancement of science and technology, should be given a meaning, which
includes within it, the concept of motherhood attained via the surrogacy route.
The latter appears to be more logical if, the language of Rule 43-A, which
deals with paternity leave, is contrasted with sub-rule (1) of Rule 43. Rule 43-
A makes it clear that a male employee would get 15 days of leave "during the
confinement of his wife for child birth", either 15 days prior to the event, or
thereafter, i.e. after child birth, subject to the said leave being availed of within
6 months of the delivery of the child. 15.1 There is no express stipulation in
sub-rule (1) of Rule 43 to the effect that the female employee (applying for
leave) should also be one who is carrying the child. The said aspect while
being implicit in sub-rule (1) of Rule 43, does not exclude attainment of
motherhood via surrogacy. The attributes such as "confinement" of the female
employee during child birth or the conditionality of division of leave into
periods before and after child birth do not find mention in Rule 43(1).

15.2 Having regard to the aforesaid position emanating upon reading of the
Rules, one is required to examine the tenability of the objections raised by the
respondents.

16. The argument of the respondents, in sum, boils down to this: that the word
'maternity' can be attributed to only those female employees, who conceive
and carry the child during pregnancy. In my view, the argument is partially
correct, for the reason that the word 'maternity' pertains to the 'character,
condition, relation or state of a mother'6. In my opinion, where a Black's Law
Dictionary, 6th Edition at page 977 surrogacy arrangements is in place, the
commissioning mother continues to remain the legal mother of the child, both
during and after the pregnancy. To cite an example: suppose on account of a
disagreement between the surrogate mother and the commissioning parents,

670
the surrogate mother takes a unilateral decision to terminate the pregnancy,
albeit within the period permissible in law for termination of pregnancy - quite
clearly, to my mind, the commissioning parents would have a legal right to
restrain the surrogate mother from taking any such action which may be
detrimental to the interest of the child. The legal basis for the court to entertain
such a plea would, in my view, be, amongst others, the fact that the
commissioning mother is the legal mother of the child. The basis for reaching
such a conclusion is that, surrogacy, is recognized as a lawful agreement in the
eyes of law in this country. [See Baby Manji Yamada v. Union of India,
(2008) 13 SCC 518]. In some jurisdictions though, a formal parental order is
required after child birth.

16.1 Therefore, according to me, maternity is established vis-a-vis the

commissioning mother, once the child is conceived, albeit in a womb, other
than that of the commissioning mother.

16.2 It is to be appreciated that Maternity, in law and / or on facts can be

established in any one of the three situations: First, where a female employee
herself conceives and carries the child. Second, where a female employee
engages the services of another female to conceive a child with or without the
genetic material being supplied by her and / or her male partner. Third, where
female employee adopts a child.

16.3 In so far as the third circumstance is concerned, a specific rule is

available for availing leave, which as indicated above, is provided for in Rule
43-B. In so far as the first situation is concerned, it is covered under sub-rule
(1) of Rule 43. However, as regards the second situation, it would necessarily
have to be read into sub-rule (1) of Rule 43. 16.4 To confine sub-rule (1) of
Rule 43 to only to that situation, where the female employee herself carries a
child, would be turning a blind eye to the advancement that science has made
in the meanwhile. On the other hand, if a truncated meaning is given to the
word 'maternity', it would result in depriving a large number of women of their
right to avail of a vital service benefit, only on account of the choice that they
would have exercised in respect of child birth.

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17. The argument of the respondents that the underlying rationale, for
according maternity leaves (which is to secure the health and safety of
pregnant female employee), would be rendered nugatory - to my mind, loses
sight of the following:

(i) First, that entitlement to leave is an aspect different from the right to avail
leave.

(ii) Second, the argument centers, substantially, around, the interest of the
carrier, and in a sense, gives, in relative terms, lesser weight to the best interest
of the child.

17.1 In a surrogacy arrangement, the concern of the commissioning parents, in

particular, the commissioning mother is to a large extent, focused on the child
carried by the gestational mother. There may be myriad situations in which the
interest of the child, while still in the womb of the gestational mother, may
require to be safeguarded by the commissioning mother. To cite an example, a
situation may arise where a commissioning mother may need to attend to the
surrogate/ gestational mother during the term of pregnancy; because the latter
may be bereft of the necessary wherewithal. The lack of wherewithal could be
of: financial nature (the arrangement in place may not suffice for whatever
reasons), physical condition or emotional support or even a combination of
one or more factors stated above. In such like circumstances, the
commissioning mother can function effectively, as a care-giver, only if, she is
in a position to exercise the right to take maternity leave. To my mind, to
curtail the commissioning mother's entitlement to leave, on the ground that she
has not conceived the child, would work, both to her detriment, as well as, that
of the child.

18. The likelihood of such right, if accorded to the commissioning mother,

being misused can always be curtailed by the competent leave sanctioning
authority.

18.1 At the time of sanctioning leave the competent authority can always seek
information with regard to circumstances which obtain in a given case, where

672
application for grant of maternity leave is made. The competent authority's
scrutiny, to my mind, would be keener and perhaps more detailed, where leave
is sought by the commissioning mother at the pre-natal stage, as against post-
natal stage. If conditions do not commend that leave be given at the pre-natal
stage, then the same can be declined. 18.2 In so far as post-natal stage is
concerned, ordinarily, leave cannot be declined as, under most surrogacy
arrangements, once the child is born; its custody is immediately handed over
to the commissioning parents. The commissioning mother, post the birth of the
child, would, in all probability, have to play a very crucial role in rearing the
child.

18.3 However, these are aspects which are relatable to the time and the period
for which maternity leave ought to be granted. The entitlement to leave cannot
be denied, to my mind, on this ground.

19. In this context, I may only refer to a judgment of the Labour Court of
South Africa, in Durban in MIA v. State Information Technology
Agency (Pty) Ltd., (D312/2012) [2015] ZALCD20 (dated: 26 March 2015).
The applicant before the court, who was a male employee, challenged the
refusal by his employer to grant him maternity leave on the ground that he was
not the biological mother of the child under the surrogacy agreement. 19.1 The
principal ground of challenge was that such refusal constituted unfair
discrimination on the grounds of gender, sex, family responsibility and sexual
orientation, as provided in Section 61 of the Employment Equity Act (Act 55
of 1998).

19.2 The provision pertaining to maternity leave, as adverted to in the

judgment, was contained in Section 25 of the Basic Conditions of
Employment Act (Act 75 of 1997). The relevant part, as extracted in the
judgment, is set out herein blow:

"..(1). an employee is entitled to at least four consecutive month’s maternity

leave.

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(2). An employee may commence maternity leave - a. at any time from four
weeks before the expected date of birth, unless otherwise agreed; or b. x "

19.3 The common case between the parties was that the respondent-
employer's policy was similar to the provisions of the Basic Conditions of the
Employment Act. The respondent-employer policy provided "paid maternity
leave of a maximum of four months", and that, they said leave was to be taken
"four weeks prior to the expected date of birth or at an earlier date".

19.4 In defense, the argument of the respondent-employer was that, its policy
was not discriminatory, and therefore, it was argued that the word 'maternity'
defined the character of the leave viz. that it was a right which was to be
enjoyed only by female employees. In the pleadings, the respondent-employer
averred that its maternity leave policy was specifically designed to cater to the
following:

"...to cater for employees who give birth .... Based on an understanding that
pregnancy and childbirth create an undeniable physiological effect that
prevents biological mothers from working during portions of the pregnancy
and during the post-partum period.

Thus at least 10 weeks of maternity leave benefits have been introduced to

protect birth mothers from an earning interaction due to the physical
incapacity to work immediately before and after childbirth...”

19.5 The ruling of the Court sheds some light, in my view, on the issue at
hand. The observations made in the judgment being relevant, are extracted
herein below.

"...[13] This approach ignores the fact that the right to maternity leave as
created in the Basic Conditions of Employment Act in the current
circumstances is an entitlement not linked solely to the welfare and health of
the child's mother but must of necessity be interpreted to and take into account
the best interests of the child. Not to do so would be to ignore the Bill of
Rights in the Constitution of the Republic of South Africa and the Children's
Act. Section 28 of the Constitution provides:

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28 Children:

(1) Every child has a right-

A...

B. To family care or parental care...

[14] The Children's Act specifically records not only that the act is an
extension of the rights contained in Section 28 but specifically provides:

Best interests of child [is] paramount in all matters concerning the care,
protection and well-being of a child the standard that the child's best interest is
of paramount importance must be applied.

[15] Surrogacy agreements are regulated by the Children's Act.

[16] The surrogacy agreement specifically provides that the newly born child
is immediately handed to the commissioning parents. During his evidence the
applicant explained that for various reasons that he and his spouse had decided
that he, the applicant, would perform the role usually performed by the
birthmother by taking immediate responsibility for the child and accordingly
he would apply for maternity leave. The applicant explained that the child was
taken straight from the surrogate and given to him and that the surrogate did
not even have sight of the child. Only one commissioning parent was
permitted to be present at the birth and he had accepted this role.

[17] Given these circumstances there is no reason why an employee in the

position of the applicant should not be entitled to "maternity leave" and
equally no reason why such maternity leave should not be for the same
duration as the maternity leave to which a natural mother is entitled..."

(Emphasis is mine)

20. In our Constitution, under Article 39(f), which falls in part IV, under the
heading Directive Principles of the States policy, the state is obliged to, inter
alia, ensure that the children are given opportunities and facilities to develop
in a healthy manner. Similarly, under Article 45, State has an obligation to
provide early childhood care.

675
20.1 Non-provision of leave to a commissioning mother, who is an employee,
would, to my mind, be in derogation of the stated Directive Principles of State
Policy as contained in the Constitution.

21. In this context, regard may also be had to Article 6 of the United Nations
Convention on Rights of Child (UNCRC).

21.1 Article 6 of the UNCRC provides that the States, which are party to the
Convention, shall recognize that every child has the inherent right to life. A
State-party is thus obliged to ensure, to the maximum extent possible, the
survival and development of the child. Undoubtedly, India is a signatory to the
UNCRC.

21.2 There is no municipal law, which is in conflict with the provisions

of Article 6 of the UNCRC. The State, therefore, is obliged to act in a manner
which ensures that it discharges its obligations under the said Article of the
UNCRC. [See Jolly George Varghese v. Bank of Cochin, (1980) 2 SCC
360; Vishaka v. State of Rajasthan, (1997) 6 SCC 241 and National Legal
Services Authority vs. Union of India, (2014) 5 SCC 438 at para 484 to 487 /
para 51 to 60].

22. The Madras High Court in K. Kalaiselvi's case equated the position of an
adoptive parent to that of a parent who obtains a child via a surrogacy
arrangement. The observations of the court, to that effect, are found in the
following paragraphs of the judgment.

"..13. Alternatively, he contended that if law can provide child care leave in
case of adoptive parents as in the case of Rule 3-

A7 of the Madras Port Trust (Leave) Regulations, 1987, then they should also
apply to parents like the petitioner who obtained child through surrogate
agreement since the object of Rule 3-A - Leave to female employees on
adoption of a child : A female employee on her adoption a child may be
granted leave of the kind and admissible (including commuted leave without

676
production of medical certificate for a period not exceeding 60 days and leave
not due) up to one year subject to the following conditions :

(I) the facility will not be available to an adoptive mother already having two
living children at the time of adoption;

(ii) The maximum admissible period of leave of the kind due and admissible
will be regulated as under:

(a)If the age of the adopted child is less than one month, leave up to one year
may be allowed.

(b)If the age of the child is six months or more, leave up to six months may be
allowed.

(c)If the age of the child is nine months or more leave up to three months may
be allowed.

Such leave is to take care of the child and developing good bond between the
child and the parents.

14. However, the learned counsel for the Port Trust contended that in the
absence of any specific legal provision, the question of this court granting
leave will not arise.

15. In the light of these rival contentions, it has to be seen whether the
petitioner is entitled for a leave similar to that of the leave provided under
Rule 3-A and whether her child's name is to be included in the FMI Card for
availing future benefits?

16. This court does not find anything immoral and unethical about the
petitioner having obtained a child through surrogate arrangement. For all
practical purpose, the petitioner is the mother of the girl child G.K. Haryana
and her husband is the father of the said child. When once it is admitted that
the said minor child is the daughter of the petitioner and at the time of the
application, she was only one day old, she is entitled for leave akin to persons

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who are granted leave in terms of Rule 3- A of the Leave Regulations. The
purpose of the said rule 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, but yet the necessity of bonding of the mother with the adoptive child
has been recognized by the Central Government. Therefore, the petitioner is
entitled for leave in terms of Rule 3- A. Any other interpretation will do
violence to various international obligations referred to by the learned counsel
for the petitioner. Further, it is unnecessary to rely upon the provisions of the
Maternity Benefit Act for the purpose of grant of leave, since that act deals
with actual child birth and it is mother centric. The Act does not deal with
leave for taking care of the child beyond 6 weeks, i.e., the post natal period.
The right for child care leave has to be found elsewhere. However, this court is
inclined to interpret Rule 3-A of the Madras Port Trust (Leave) Regulations,
1987 also to include a person who obtain child through surrogate
arrangement..."

22.1 The ratio of the judgment, to my mind, is that, an adoptive parent is no

different from a commissioning parent, which seeks to obtain a child via a
surrogacy arrangement. The Madras High Court thus interpreted Rule 3-A of
the Madras Port Trust Regulation to include a female employee who seeks to
obtain a child via a surrogacy arrangement.

23. In the instant case, in so far as Rule 43-B obtains, the situation is
somewhat similar to that which prevailed in K. Kalaiselvi's case. 23.1 Having
said so, in my opinion, the impediment perhaps in applying the ratio set forth
in K. Kalaiselvi's case would be, if at all, on account of the presence of the
expression, 'valid adoption', in Rule 43-B; which is also one of the objections
taken by the respondents to the entitlement to leave by a commissioning
mother under the said Rule.

23.2 For the sake of completeness I must refer to the judgment of the Kerala
High Court on somewhat similar issue in the matter of P. Geetha vs The
Kerela Livestock Development Board Ltd. 2015 (1) KLJ 494. However, the
gamut of rules that this court is called upon to examine are not, in their
entirety, similar to the ones that were before the Kerala High Court. To cite an

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example in P. Geetha's case the rules framed by the Kerala Livestock
Development Board did not provide for paternity leave. 23.3 Therefore, in my
view, in such like situations, the appropriate course would be to allow
commissioning mothers to apply for leave under Rule 43(1).

24. In view of the discussion above, the conclusion that I have reached is as
follows:-

(i). A female employee, who is the commissioning mother, would be entitled

to apply for maternity leave under sub-rule (1) of Rule 43.

(ii). The competent authority based on material placed before it would decide
on the timing and the period for which maternity leave ought to be granted to a
commissioning mother who adopts the surrogacy route.

(iii). the scrutiny would be keener and detailed, when leave is sought by a
female employee, who is the commissioning mother, at the pre-natal stage. In
case maternity leave is declined at the pre-natal stage, the competent authority
would pass a reasoned order having regard to the material, if any, placed
before it, by the female employee, who seeks to avail maternity leave. In a
situation where both the commissioning mother and the surrogate mother are
employees, who are otherwise eligible for leave (one on the ground that she is
a commissioning mother and the other on the ground that she is the pregnant
women), a suitable adjustment would be made by the competent authority.

(iv). In so far as grant of leave qua post-natal period is concerned, the

competent authority would ordinarily grant such leave except where there are
substantial reasons for declining a request made in that behalf. In this case as
well, the competent authority will pass a reasoned order.

25. The writ petition is disposed of, in the aforementioned terms.

26. Parties shall, however, bear their own costs.

RAJIV SHAKDHER, J.

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 CHEPTER-8
CONCLUSIONS & SUGGESTIONS
There are three types of mothers, the genetic mother (provides the egg
and of the genetic code 23 chromosomes), the gestational mother (she carries
the fetus inside her body), and the social mother (contributor to the raising and
care of the child). Each is important for the well-being and development of the
child.
Surrogacy is not a simple arrangement; it is extremely complex. The
relationships can be stressful, overwhelming, and intense. Patience and
perseverance are a must.
Both the surrogate and the infertile couple should obtain legal counsel
before agreeing to and signing a contract. It is in their best interest to know
how the law addresses certain aspects of surrogacy as it pertains to their
particular interest.
Disclosure of the surrogate relationship should be limited so as to
avoid unwarranted scrutiny. Many ethical issues have risen out of this
research. It can be the judge after analyzing some of the facts. I strongly
recommend resource intervention; i.e.: body shop, lawyer, psychologist, social
work, etc.
It seems ironical that people are engaging in the practice of surrogacy
when nearly 12 million Indian children are orphans. Adoption of a child in
India is a complicated and a lengthy procedure for those childless couples who
want to give a home to these children. Even 60 years of Independence have
not given a comprehensive adoption law applicable to all its citizens,
irrespective of the religion or the country they live in as Non-Resident Indians
(NRIs), Persons of Indian Origin (PIOs) or Overseas Citizens of India (OCIs).
As a result, they resort to the options of IVF or surrogacy. The Guardian and
Wards Act, 1890 permits Guardianship and not adoption. The Hindu Adoption
and Maintenance Act, 1956 does not permit non-Hindus to adopt a Hindu
child, and requirements of immigration after adoption have further hurdles.
There is a strong need to modify and make the adoption procedure
simple for all. This will bring down the rates of surrogacy. Altruistic and not
commercial surrogacy should be promoted. Laws should be framed and

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implemented to cover the grey areas and to protect the rights of women and
children. It could be ascertained that majority of the surrogate mothers were
between the age of 25 and 35. In age group 25 to 30 the 44% of the surrogate
mothers fell in the 31-35 years age-group categories it is 40 % and 16% of
them came from more than 35 years age group categories. Almost all the
surrogate women belonged to Hindu religion 52 % and also 48 % belongs to
Christianity. Most of all surrogate mother speaks Gujarati. Some also speaks
Hindi, Marathi and few of them also speak English. It is shown that 96%
surrogate mother speaks Gujarati 60% speaks Hindi among the shown region
while 24 % knows little English language and 4% very few knows Marathi.
However, there is often a desire to earn some money through surrogacy
arrangements to pay off debt, buy a house, fund higher education of their
children or build up their husband‘s business, which prompts them to become
surrogate mothers
The nuclear family set up allows the couple to take independent
decision to be engaged in surrogacy arrangement and the choice to reveal or
hide their involvement in surrogacy arrangement from their own family
members including their elders. In addition it was also observed that couples
in order to tackle immediate financial crisis in the family take this decision
without consulting or seeking the approval of their elders in family who often
live either in rural areas or in other states.
All the surrogate mothers belonged to male- headed household. This
fact to a great extent reveals that woman becomes a surrogate mother with her
husband‘s approval in order to support the family income. Due to the nuclear
family structure, majority of the households are comprised of few family
members 68 % surrogates comes due to get money for children education. The
same percentage surrogate’s means 68 % come to this contract due to building
a new home for family. Some other reason like debt payment for house is 28
% the same percentage 28 % for debt payment of land.
In India, surrogacy is purely a contractual understanding between the
parties so care has to be taken while drafting agreement so that it does not
violate any of the laws like, e.g., points to be taken into consideration why
does the intended parents opt for surrogacy, particulars of the surrogate, type
of surrogacy, mentioning about paternity in the agreement, the creation of

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registry for biological father of children in an adoption cases, rules set forth on
how and when genetic testing can be done to determine paternity,
compensation clause, unexpected mis happening to the surrogate mother,
child's custody, regarding the jurisdiction for the disputes arising out of
agreement.
Indian government has drafted legislation in 2008 and finally framed
an ART regulation draft bill 2010. The bill is still pending and not presented in
the parliament. The proposed law needs proper discussion and debate in the
context of legal, social and medical aspects.
We conclude that the government must seriously consider enacting a
law to regulate surrogacy in India in order to protect and guide couples
seeking such options. Without a foolproof legal framework implementation
couples will invariably be misled and the surrogates exploited.
In the culturally enriched country like India concerns about the overuse
and inappropriate use of commercial surrogacy facilitated by unscrupulous
fertility clinics are above all. Surrogacy is an alternative to other fertility
treatments in a bid to expand the industry and make greater profits, and fears
loom that surrogacy could spin out of control. In developing country like India
where poverty is playing an important factor, women may be compelled by
their husbands of in-laws to become surrogates. Instances like breach of
contract either by surrogate mother or commissioning couple should not be
neglected. Proper guidelines should be given to control following issues: In
absence of independent agency issues namely welfare of surrogate child is at
stake.Refusal on part of surrogate mother to give a child to commissioning
parents out of mental breakdown of mother. Several social and legal questions
like whether it amounts to sale of child, breach of contract by denial of mother
from handling over child, etc. should be settles. The Union Women and Child
Development Ministry is clearly in favor of monetary compensation for the
surrogate mothers. It’s high time to enact the laws otherwise India would be a
tourism hub for surrogacy. Surrogacy carry social stigma in the society as it is
equated with prostitution and by virtue of that it is argued that it should be
disallowed on moral grounds. Surrogate mothers are kept in isolation from
families and allowed to meet families in weekends, which are against the
human rights. Hence, there are number of ethical, social, legal and

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psychological issues associated with surrogacy, which require urgent need for
framing and implementation of law.

'Come to me, all you who are weary and burdened, and I will give you
rest. Take my yoke upon you and learn from me, for I am gentle and humble
in heart, and you will find rest for your souls. For my yoke is easy and my
burden is light.’

The purpose of this study was to assess the emotional experiences of

surrogate mothers. The findings of this qualitative study were classified into
two main themes and four sub-themes. The first theme was "the acquired
experiences in pregnancy" that included two sub-themes: the feelings toward
pregnancy and the relationship with family and relatives. The second theme
was "the consequences of surrogacy" that included two sub-themes: the
complications of pregnancy and the religious and financial problems of
surrogacy.

It seems that the separation from the newborn and handing the child over
to the commissioning couple will be a distressing and painful experience for a
surrogate mother. However; there is inconsistent and conflicting evidence
about the emotional effects of uterus donation process on surrogate mothers.
For example, in a study, twenty five surrogate mothers were asked to report
their feelings or concerns about relinquishing the child. One mother reported
emotional distress over the relinquishment and two others reported a strong
instinctual urge to bond with the child. The remaining eleven did not feel
bonded with the child, which may seem to indicate that for the majority of
surrogates the issue of having to relinquish the child did not appear to be a
problem. It is also concluded that pregnancy can be painful for surrogate
mothers as much as infertile mothers.

Some evidence shows that baby transfer may lead to considerable distress
and emotional problems in uterus of donor mothers. On the other hand, there
is a concern that lack of maternal attachment to the baby during the surrogacy
process may be challenging for the health of both the mother and the baby.
The important bond between mother and child, which derives from both

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biological and cognitive/psychological aspects of human nature, begins during
pregnancy and continues after birth. Surrogacy ruptures this significant bond.
The study accomplished showed that all of the surrogate mothers in
postpartum period, with no doubt, delivered the babies according to previous
agreement. The follow up of those women showed that 32% of women had
emotional and psychological problems for several weeks after losing the
babies. After a few months, this rate decreased to 15% and continued until 1
year only in 6% of cases.

However; the rate of postpartum depression in surrogate women is not

higher than the general population. Also, most of researches don’t report
serious psychological problems for embryo host mothers. In contrast, some
studies indicate negative effects and psychological problems following
surrogacy. In general, the results of the studies show that despite some worries
about host mother's emotional problems, these problems do not threaten their
psychological health. However; it is recommended that more attention should
be paid to choosing suitable hosting applicants with professional counseling
before pregnancy.

In the study, self-obligation to have no feeling to the child was the

mothers' reaction to confront with this issue in 25 participants. The results of
the study showed that none of the surrogate mothers had any special problems
after delivering the babies to the commissioning couples. This finding is
similar to ours. Fear and worry about being baby abnormal/baby health as the
second code of the first sub-theme (feelings toward pregnancy) of the first
main theme (experiences acquired in pregnancy) is one of our findings. This
finding has been reported in a few studies before.

Fear of husband reactions in marital life. In the present study most of the
women were concerned about their sexual relationships during the pregnancy
and eventually disruption of family relationship. There were a few surrogate
mothers that complained about an insignificant decrease in libido. In this study
on marital satisfaction of women found that the surrogate mothers had low
marital satisfaction, having severe problems in marital relationship with their
spouse, some had moderate or high marital satisfaction. So we can say that the

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surrogacy phenomenon have no significantly negative impact on the marital
relationships of couples. This difference may be related to cultural or religious
differences between the Iranian and England communities.

Doubt about informing her own children of the pregnancy type was one of
the concerns expressed by mothers participating in this study. According to the
recommendation of the Medical Council of the UK, if surrogate mothers have
children, they should talk to them about this issue because the absence of the
baby in the family after birth could be a cause of conflict in their children. The
results of Women's study showed that 52% of uterus donor mothers by
complete arrangement preferred to tell the truth about the kind of pregnancy to
their children, while this rate decreased to 24% in genetic surrogacy.

Worries and concerns about informing the relatives and friends one of
the significant issues affecting the emotional health of surrogate mothers is the
attitude of friends, colleagues, friends, and general public towards surrogacy.
Lack of social support due to negative attitude of people can make surrogate
mothers psychologically vulnerable.

My study showed negative attitude of most people towards this

method. I believe that people attitude is mainly resulted from unawareness
about various aspects of the subject that can be solved somewhat by giving
appropriate information and awareness. They found that sometimes some of
families, family members and friends initially had a negative attitude to
surrogacy but later accepted it and took pride in the host-mothers. The most of
host-mothers reported their husband's support and their children's positive
reaction. None of them had faced a serious trouble. The results of current
study show that despite positive attitude of surrogate mothers, they believe
that there are not appropriate cultural circumstances in the community. This
caused them to resolve the problem with solutions like attribution the
pregnancies to their husband, announcement of neonate death to others,
declaring that the pregnancy is unwanted; stopping relationships with relatives
and friends until delivering the baby to the commissioning couple.

Some of them, according to their cultural circumstances made others

aware of their decision. Husbands' awareness and consent, agreement of

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religious scholars with this method of pregnancy, religious legitimacy of
embryos growing in their wombs and the altruistic aspect of surrogacy that
helps to solve the problem of infertile couples were important factors that
influence significantly on making decision of surrogate mothers and their
husbands to inform others about the real cause of pregnancy.

Hospitalization due to threatened abortion and elevated blood sugar is

also issue although pregnancy is a natural process, it may induce some risks.
When a woman decides to become pregnant, she is prepared to face the risks.
In surrogacy, unfortunately, she bears the risks without the natural benefit of
motherhood. There is therefore a is also of futility if something goes wrong
for her, which is especially the case if a woman becomes a surrogate merely
for altruistic purposes. It is reported that a surrogate mother, aged 29 had died
90 minutes after giving birth due to aorta rupture following high blood
pressure. Her mother said:" Surrogacy caused death. People must realize that
childbirth isn't something you enter into lightly. It's still dangerous.

The data regarding the medical risks associated with surrogate

pregnancy is limited to a few case series. It remains to be determined if the
obstetric risks are the same as those for any other pregnancy derived by in
vitro fertilization with the same number of fetuses. Most case series report no
increase in adverse events related to surrogate pregnancy; however found here
that some surrogate mothers underwent postpartum hysterectomy: after giving
birth to triplets with placenta accrete and after uterine rupture that occurred
during delivery of a macrocosmic infant.

A prenatal diagnosis of disability or perceived imperfection in

surrogate mother could result in serious trouble with a surrogacy arrangement
such as couple reneging. At least one such case has occurred in the India. In
such cases, depending on the circumstances and severity, the option of
abortion could be considered by the surrogate; however, differing moral
perspectives on abortion have the potential to result in an irresolvable
stalemate. The surrogate may still wish to proceed with the birth; however, the
commissioning couple may no longer want the child. Alternatively, the
surrogate may choose an abortion contrary to the wishes of the commissioning

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couple, but presumably the surrogate’s decision for abortion under law would
prevail

I did not have any cases like this among the participants of the current
study. Doubt about religious legitimacy was an unresolved problem. As an
achieved themes of the present study that has not been reported in the related
articles. Considering the fact that complete surrogacy is permitted by most of
the Shia clerics and jurists, this problem can be somewhat resolved by
improving public awareness. No enough payment for expenses by the
commissioning is also considered.

In my study, lack of a well-written documented contract between the

surrogates and commissioning couples caused surrogate mothers to face some
problems including financial problems during pregnancy and be worried about
receiving the agreed payment prior to pregnancy in cases the baby probably
would be lost or have abnormalities. It is crucial for both commissioning
couples and the surrogates to have a legal contract to define obviously the
responsibilities and rights of both sides and guarantee the issues under the
contract such as the payment of money so that the surrogate mothers could
spend their pregnancy peacefully.

IVF and other ART, since their evolution and implementation, have
raised complex ethical, legal and social issues. No other medical advent has
ever caused so many conflicts among the scientists, the public and society as a
whole. Despite all the obstacles, the medical world has succeeded in
establishing this new procedure and even more to further increases its
possibilities and range of treatment in many aspects.
While surrogacy arrangements can result in psychological difficulties
for the both members of the commissioning couple, overall most parents
report that while the decision to use a surrogate had been difficult that they
had experienced little anxiety or other psychological difficulties during or after
the pregnancy.

Similarly, while some surrogates and their partners experienced

difficulties during the pregnancy and after handing over the child, for most the

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experience appears to be positive and most difficulties dissipate within a year
after giving up the baby.

Commissioning couples and surrogates generally report positive

relationships with each other during and after the birth and transfer of the
baby. They also report maintaining contact and the intention to maintain
contact throughout the child’s life.

Yet it’s important to keep in mind that there are those who do have
psychological difficulties and it is important that there is a method in place
during evaluations conducted throughout the process to assess such factors. If
problems are discovered, encouraging supportive counseling is a crucial step
in helping all participants perceives the surrogacy process as a positive
experience.

Surrogacy fails to respect the dignity or primacy of the welfare of the child. It
involves the subordination of the welfare the child and surrogate in favor of
the commissioning parents desires to have a child.
The question of whether the suffering of a childless woman is greater
than that of the gestational surrogate, who ‘abandons’ her baby, is ‘solved’
when the surrogate mother is depersonalized, and looked upon solely as a
‘womb for rent’.
Furthermore, surrogacy ignores the fact that foetal/early infant
development is a critical determinant of a child’s welfare, whereby the
biological and psychological bond between the surrogate and her child is of
crucial significance for this development. Moreover, it is likely that the
various specific failings in the Statutes Amendments (Surrogacy) Bill 2006
will lead to further complications causing additional distress and harm for all
parties involved, along with the litigation that is likely to result.
If, however, the pregnancy has been terminated for medical reasons, no
reimbursement would be needed. Also by law, a surrogate mother would have
to relinquish all parental rights over the child born out of the arrangement. The
draft bill adds that a surrogate cannot undergo embryo transfer for more than
three times for the same couple.

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 This provision aims to prevent commercialization of the service. The
bill states conditions for foreign couples seeking to hire surrogates in India. As
per the draft, they would have to first give a certificate from their foreign
ministry stating that the child born out of a surrogacy arrangement would be
permitted entry in their country of origin and would be considered the
biological child of the couple.
"A foreign couple seeking a surrogate service in India will have to
appoint a local guardian to care for the surrogate mother till the child is
delivered to the hiring couple. Foreign couple will use at least one gamete of
their own in the creation of the embryo. "In case the foreign couple fails to
take delivery of the child, the local guardian would be obliged to take the said
delivery and he would be free to hand over the child in adoption," the draft
law states.
Once the bill is passed by Parliament, all states and UTs would have to
constitute state boards and registration authority to regulate ART clinics and
banks in their areas. Every state board will have the power of a civil court to
adjudicate matters under the law and even impose penalties.
A National Advisory Board for ART will be established under the
Health Ministry to recommend modification of rules to the ART techniques
and Indian Council of Medical Research will maintain a national registry of
ART clinics and banks in India which will act as a central database through
which all information related to services offered by clinics will be maintained.
 Commercial surrogacy has been legal in India since 2002.
 India is emerging as a leader in international surrogacy and a sought
after destination in surrogacy-related fertility tourism. Indian
surrogates have been increasingly popular with fertile couples in
industrialized nations because of the relatively low cost. Indian clinics
are at the same time becoming more competitive, not just in the
pricing, but in the hiring and retention of Indian females as surrogates.
Clinics charge patients roughly a third of the price compared with
going through the procedure in the UK.
 Surrogacy in India is relatively low cost and the legal environment is
favorable. In 2008, the Supreme Court of India in the Manji's case

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 (Japanese Baby) has held that commercial surrogacy is permitted in
India with a direction to the Legislature to pass an appropriate Law
governing Surrogacy in India. At present the Surrogacy Contract
between the parties and the Assisted Reproductive Technique (ART)
Clinics guidelines are the guiding force. Giving due regard to the apex
court directions, the Legislature has enacted ART BILL, 2008 which is
still pending and is expected to come in force somewhere in the next
coming year. The law commission of India has specifically reviewed
the Surrogacy Law keeping in mind that in India that India is an
International Surrogacy destination.
 International Surrogacy involves bilateral issues, where the laws of
both the nations have to be at par/uniformity else the concerns and
interests of parties involved will remain unresolved and thus, giving
due regard to the concerns and in order to prevent the
commercialization of the Human Reproductive system, exploitation of
women and the commoditization of Children, the law commission has
submitted its report with the relevant suggestion:
 The Law Commission of India has submitted the 228th Report on
“NEED FOR LEGISLATION TO REGULATE ASSISTED
REPRODUCTIVE TECHNOLOGY CLINICS AS WELL AS
RIGHTS AND OBLIGATIONS OF PARTIES TO A SURROGACY.”
The following observations had been made by the Law Commission: -
(a) Surrogacy arrangement will continue to be governed by contract
amongst parties, which will contain all the terms requiring consent of
surrogate mother to bear child, agreement of her husband and other
family members for the same, medical procedures of artificial
insemination, reimbursement of all reasonable expenses for carrying
child to full term, willingness to hand over the child born to the
commissioning parent(s), etc. But such an arrangement should not be
for commercial purposes.

(b) A surrogacy arrangement should provide for financial support for

surrogate child in the event of death of the commissioning couple or
individual before delivery of the child, or divorce between the intended

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 parents and subsequent willingness of none to take delivery of the
child.

(c) A surrogacy contract should necessarily take care of life insurance

cover for surrogate mother.

(d) One of the intended parents should be a donor as well, because the
bond of love and affection with a child primarily emanates from
biological relationship. Also, the chances of various kinds of child-
abuse, which have been noticed in cases of adoptions, will be reduced.
In case the intended parent is single, he or she should be a donor to be
able to have a surrogate child. Otherwise, adoption is the way to have a
child which is resorted to if biological (natural) parents and adoptive
parents are different.

(e) Legislation itself should recognize a surrogate child to be the

legitimate child of the commissioning parent(s) without there being
any need for adoption or even declaration of guardian.

(f) The birth certificate of the surrogate child should contain the name(s)
of the commissioning parent(s) only.

(g) Right to privacy of donor as well as surrogate mother should be

protected.

(h) Sex-selective surrogacy should be prohibited.

(i) Cases of abortions should be governed by the Medical Termination of

Pregnancy Act 1971 only. The Report has come largely in support of
the Surrogacy in India, highlighting a proper way of operating
surrogacy in Indian conditions. Exploitation of the women through
surrogacy is another worrying factor, which the law has to address.
The Law Commission has strongly recommended against Commercial
Surrogacy. However, this is a great step forward to the present
situation. We can expect a legislation to come by early 2011 with the
passing of the Assisted Reproductive Technology Bill aiming to
regulate the surrogacy business.

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 What then can we conclude on this complex and emotive issue? From
Scripture several things seem clear. There are certain recommendations are
provided for the surrogacy in India.

1. There should be legislation directly on the subject of surrogacy

arrangement involving all the two parties i.e. the surrogate mother, the
commissioning parents.
2. There should be a substantial regulation designed to protect the
interests of the child.
3. Legal recognition of termination and transfer of parenting rights.
4. The surrogate mother should be provided by the copy of the contract as
she is a party in the agreement and her interests should be taken into
account. It is crucially important to maintain and monitor the
anonymity of the surrogate mothers.
5. The surrogate mothers generally are from poor families and their
average monthly income is not more than Rs. 2,500-6,000.
6. Almost all of the interviewed surrogate mothers have already
experienced child-birth before and have two kids of their own. In such
a way, this implies that these women are capable of reproduction
naturally and are made subjects of reproductive assistance techniques
and become surrogate mothers.
7. The majority of them are illiterate, employed as domestic helpers,
construction workers or nurses. Thus, they are economically vulnerable
and desire for some money. Hence, the need of money is the driving
force for them to become surrogate mothers.
8. Most of the surrogate mothers are married and live in nuclear family
structure, which makes the surrogacy decision-making easier for the
couple.
9. The majority of them spend the money for education of their children,
building the house or renovating the old one.
10. Most of them stay in rented houses, which are kutcha or semi-pucca
with poor or no latrine facilities. In some cases there was no roof over
their houses due to which their children suffered from fever in rainy
season.

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11. Sometimes though the husbands do not mind the woman to go for
surrogacy but after the baby is born and handed over and the woman
comes back to her house, the husband and her own children distance
themselves from her.
12. Most of the times it is the agent who approaches the particular woman
for surrogacy to help her get in touch with the concerned clinic. These
agents are often former surrogate mothers who have delivered two
surrogate babies in the same clinic.
13. The surrogacy contract is signed between the surrogate mother
(including her husband), the commissioning parents and the fertility
physicians. In such a way, the clinic authorities evade legal hassles.
14. Almost none of the surrogate mothers have a copy of the written
contract of surrogacy arrangement, though they are part of this
contract.
15. The surrogacy arrangement contract rarely addresses issues related
primarily to the well being and health of the surrogate mother. It is
only the health issues related to the fetus when the health of the
surrogate mother becomes a prerogative.
16. In case the intended parents do not wish to continue with the
pregnancy due to some fetal abnormalities or sex preference, the baby
is aborted often without any say of the surrogate mother.
17. There is no fixed rule related to the amount of compensation for the
surrogate mother; it is arbitrarily decided upon by the clinics.
Convention goes that the surrogate mother is paid 1%-2% of the total
amount received by the clinics from the commissioning parents in lieu
of the surrogate baby.
18. In most of the cases, relationship between the surrogate mother and the
commissioning parents remains as it was described harmonious, but
from a distance. It should be taken into account that language remains
to be a barrier and the doctor is the sole communicator between them.
According to the surrogate mothers, the level of involvement for the
commissioning parents with the entire pregnancy experience of the
surrogate mother remains restricted to the initial stage of getting
introduced to the former and making sure

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19. Most of the surrogate mothers stay in the shelter homes during the
pregnancy period. According to them, they do not want to disclose
their pregnancy to the neighbors and surroundings due to the social
stigma associated with it. In addition, the clinics also prefer them to
stay in the homes instead of their respective villages in the interest of
the surrogate baby, as the homes are better equipped to take care of the
pregnancy-related issues and to prevent the surrogate mother from
being infected with STDs or HIV/AIDS due to physical contact with
her husband.
20. Very often the surrogate mother remains apprehensive and fearful of
the surrogacy process before the pregnancy.
21. In most of the cases the decision to relinquish the baby after birth is
jointly taken by the commissioning parents and the clinic, whereas the
surrogate mother does not seem to have any right to interfere in the
decision-making process.
22. Few of the surrogate mothers faced difficulties from the family and
surroundings after the birth of the child due to surrogacy being
considered a stigma. Many of them also felt emotionally disturbed
after handing over the child, though not biologically her own, the
surrogate mother still felt to be attached to the child.
23. The surrogate mothers assume that the child will positively accept the
fact that s/he has been born through surrogacy.
24. The surrogate mothers stated that relinquishing the baby was the worst
part of surrogacy. However, they added that the secrecy involve in this
issue and the long and painful period of labour when they have to live
separately from their family members were other worst parts in the
surrogacy arrangement.
25. According to surrogate mothers the surrogacy arrangement distanced
them from their friends and family members.
26. Infertility is a result of the fall and brings sadness to God as well as
humankind.
27. We can use the God given gift of science to try to restore fertility
providing it does not contravene other ethical laws such as respect for
the embryo as human life or violation of the marriage bond.

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28. Surrogacy on the face of it seems a loving response to the pain of
childlessness. However, a closer look reveals that it may open the door
to even greater pain for potential children, families and society.
29. For some Christian couples infertility and childlessness will be a
painful reality, one that cannot be changed without breaking God's
moral code for life and for human relations.
30. However, as Christians we have one further hope: that all things will
work out for good, even childlessness. Whatever our situation, no
matter how painful, whether we are married or single, have children or
are childless, were conceived naturally or by IVF, we are all equal
before God. Each of us is equally in need of his grace and equally able
to enjoy his rest and a relationship with him for eternity.
31. It is found that no maternity covered in this insurance so it is life
insurance and not medical insurance. Doctor suggests life insurance
against death benefit.
32. It is noted that the mothers have to stay at surrogate hostel up to 9
months and all the expenses are covered by the agency or doctor.

33. It shows approximately equal ratio of single child to two child because
ART techniques.
34. The information shows 100 % Caesar has been done during surrogacy
process while not a single means 0 % is normal delivery.
35. It is reported that about 24 % of the mothers who are in surrogacy
process are having permanent complications like hysterectomy
(removal of uterus), Salpingectomy (removal of fallopian tube), future
infertility.
36. The doctor and agency are not allowed to get the agreement copy as
exploitation of the mothers.
37. It means the family of surrogate mother neither convicted nor involved
in any type of criminal activity.

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