The Orissa High Court recently ruled that female employees who have children through surrogacy are entitled to the same maternity leave and benefits as natural and adoptive mothers.
Justice SK Panigrahi, sitting as a single-judge bench, issued the ruling on June 25 after considering a petition from Supriya Jena, an Odisha Finance Service (OFS) officer, filed in 2020.
Jena, who became a mother through surrogacy, was refused 180 days of maternity leave by her superiors in the Odisha government. In response, she took the government to the high court.
The court noted that female government employees are granted 180 days of leave when they adopt a child who is up to one year old, similar to the maternity leave provided to biological mothers, in order to properly care for the adopted child.
Nevertheless, there is no provision for maternity leave for the specific purpose of caring for a child born through surrogacy, the court stated.
"If the government could provide maternity leave to an adoptive mother, it would be wholly improper to refuse to provide maternity leave to a mother who had begotten a child through surrogacy procedure after implanting an embryo created by using either the eggs or sperm of the intended parents in the womb of a surrogate mother," the court said.
The court has mandated that female employees who become mothers through surrogacy should be eligible for maternity leave to ensure impartial treatment and assistance for all new mothers, regardless of their method of becoming parents.
Granting maternity leave to these mothers guarantees that they have ample time to establish a nurturing and stable environment for their children, which contributes to the well-being of both the mother and the child, the high court stated.
The court has instructed the state government to approve 180 days of maternity leave for the petitioner within three months of receiving the order.
"It is further directed to the department concerned of the state to incorporate this aspect in the relevant provisions of the rules to treat a child born out of surrogacy in a similar manner as a child born out of the natural process and provide the commissioning mother with all the benefits provided thereto," the judgment read.
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