A division bench comprising of Justice Tarlok Singh Chauhan
and Justice Sandeep Sharma
of the Himachal Pradesh HC
held that a surrogate woman, getting child through arrangement by surrogate parents, is entitled to avail maternity leave benefits under Rule 43(1) of CCS (Leave) Rules, 1972.
The court held that a woman cannot be discriminated on the element of availing maternity benefits on the sole ground that she has obtained the baby through surrogacy.
The petitioner, being a language teacher at a Government school had applied for maternity leave seeking clarification whether she would be entitled for maternity leave on undergoing through a surrogacy treatment.
The High Court relying on the case of Baby Manju Yamada v. Union of India & Anr. (2008) 13 SCC 518 wherein various forms of surrogacy such as traditional, gestational, altruistic and commercial surrogacy claimed that on the repondents admission that the minor child is that of the petitioner, she is entitled to the leave akin to the persons, who are granted leave in terms of the rules.
The court also relied on the judgement made in Dr. Hema Vijay Menon v. State of Maharashtra & Ors. AIR 2005 Bom 231 wherein the court made connections between maternity and motherhood, contending that it to be unfair to distinguish between a natural and a biological mother.
Lastly, observing the constitutional mandate under Article 42, the High Court allowed the petition and directed the respondent authorities to grant maternity leave to the petitioner under CCS(Leave) Rules, 1972. [READ JUDGMENT]