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Orissa High Court Grants Maternity Leave to Surrogate Mothers

Last Updated on July 6, 2024 by News Desk

In a landmark ruling, the Orissa High Court has declared that women employees who become mothers through surrogacy are entitled to maternity leave. This decision underscores the significance of maternity leave for the well-being of both the mother and the child.

Background

The case involved a petitioner working as the Joint Director (Accounts) at the Gopabandhu Academy of Administration. She applied for maternity leave from October 25, 2018, to April 22, 2019, after becoming a mother through surrogacy on October 20, 2018. Additionally, she sought earned leave from April 23, 2019, to September 9, 2019, and resumed work on September 10, 2019. However, the Finance Department questioned the validity of granting maternity leave under existing government leave rules, prompting the petitioner to approach the High Court.

Court’s Observations

Justice Sanjeeb Kumar Panigrahi emphasized that Article 21 of the Constitution includes the right to motherhood and a child’s right to full development. He pointed out that while Odisha Service Code Rule 194 allows 180 days of maternity leave to adoptive mothers, it lacks provisions for mothers through surrogacy. Referencing the Rajasthan High Court’s decision in Smt. Chanda Keswani v. State of Rajasthan, he noted that the Assisted Reproductive Technology (Regulations) Act, 2021, recognizes surrogacy, and denying maternity leave to surrogate mothers is unjust.

Justice Panigrahi also cited the Bombay High Court’s ruling in Dr. Mrs. Hema Vijay Menon v. State of Maharashtra, which supports maternity leave for surrogate mothers to ensure equal treatment. He highlighted the importance of the initial period after childbirth for mother-child bonding and caregiving, essential for the child’s development.

Further, he referred to the Supreme Court’s decision in Anuj Garg v. Hotel Association of India, which stressed the need to adapt laws to societal changes and medical advancements. Recognizing surrogacy aligns with India’s progressive stance on reproductive rights and gender equality.

The Orissa High Court directed the state to grant 180 days of maternity leave to the petitioner. It also ordered the inclusion of provisions for maternity leave for surrogate mothers in the rules, ensuring equal treatment for all mothers and their children, regardless of how they become parents.

Written by — Athi Venkatesh

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