In a landmark ruling, the Rajasthan High Court has affirmed the rights of surrogate mothers to maternity leave, equating them with natural and biological mothers. Justice Anoop Kumar Dhand, presiding as a single judge, decreed that maternity leave cannot be denied to a mother on the basis that her child was born through surrogacy. This decision underscores the inclusive definition of motherhood under the right to life provision in Article 21 of the Indian Constitution.
The court stated,
“Right to life under Article 21 includes the right to motherhood and also the right of every child to full development. If the Government can provide maternity leave to an adoptive mother, it would be wholly improper to refuse to provide maternity leave to a mother who begets a child through the surrogacy procedure.”
The judgment further emphasized that there should be no distinction between an adoptive mother and a mother through surrogacy, as both are entitled to the bond of affection and full care and attention for their children.
Justice Dhand highlighted the importance of motherhood and the family unit, saying,
“Motherhood is the mother of all civilizations. Family as a social institution is considered as the backbone of the society.”
He added that the bond of love and affection between mother and child is crucial during infancy and that babies born through surrogacy should not be deprived of this essential care.
The case arose from a plea by a woman who had twins through surrogacy and was subsequently denied maternity leave under the Rajasthan Service Rules, 1958, due to the absence of provisions for surrogacy. The High Court ordered the state authorities to grant the petitioner her rightful 180 days of maternity leave, noting that courts across the country have recognized the non-discriminatory right to such leave for all mothers, irrespective of the nature of motherhood.
The court underscored,
“Once, it has been held by the several High Courts of our Nation including this Court that there is no distinction between the natural, biological and surrogate or commissioning mothers and all of them have fundamental right to life and motherhood, contained under Article 21 and children born from the process of surrogacy have the right to life, care, protection, love, affection and development through their mother, then certainly such mothers have right to get maternity leave.”
However, the court acknowledged the silence of the law on this matter and called upon the government to enact appropriate legislation to address this gap. The judge recommended,
“Hence, this is high time for the government to bring appropriate legislation in this regard for grant of maternity leave to the surrogate and commissioning mothers.”
The High Court Registry was ordered to forward a copy of the judgment to the Union Ministry of Law and Justice and the Principal Secretary, Department of Law and Legal Affairs, Government of Rajasthan for necessary action.
