Surrogate Parents are entitled to Maternity and Paternity Leave
In Dr Pooja Jignesh Doshi v. The State of Maharashtra and Another [Writ Petition No. 1665 of 2015, decided on 3 July 2019], the division bench of High Court of Bombay (Court) reiterated that even in case of birth of a child by surrogacy, the parents who have lent the ova and sperm, would be entitled to maternity leave and paternity leave, respectively.The Court reiterated the law laid down by the division bench of the Court in Dr Mrs Hema Vijay Menon v. State of Maharashtra [Writ Petition No.3288, decided on 22 July 2015].
Dr Pooja Jignesh Doshi v. The State of Maharashtra and Another
The High Court recently reiterated that the parents of a surrogate child are also entitled to paternity and maternity leave.
The Division bench noted that the issue is no longer res-integra observing,
In particular, it referred to the Delhi High Court's 2015 decision in Rama Pande v. Union of India, as well as the Bombay High Court's subsequent decision in Dr. Mrs Hema Vijay Menon v. State of Maharashtra.
The Court passed the order while directing the Savitribai Phule Pune University to adjust and record the leave taken by a professor, after the birth of her surrogate daughter, as maternity leave.
The petitioner-professor was unable to bear a second child. Therefore, the couple had opted for surrogacy. A surrogate mother delivered a baby girl on November 5, 2012.
Prior to the expected date of delivery, the petitioner-professor had sought maternity leave from the University to take care of the child. Ordinarily, since Savitribai Pune University is a State University, the employees are entitled to 120 days of paid maternity leave.
However, the Pune university denied petitioner's request on the ground that its maternity leave policy did not allow maternity leave in the case of a surrogate child. Since the petitioner was not the biological mother of the child, she was denied maternity leave.
The petitioner later approached the State Higher and Technical Education department to review its policy and grant maternity leave. When the department did not respond, the professor approached the Bombay High Court in 2015. Before the High Court, she prayed for the conversion of leaves taken by her to take care of her daughter, as maternity leave.
The High Court observed that the authorities should have had taken note of the prior rulings which had laid down that maternity leave benefits are also available to parents of surrogate children.
In view of the settled law, the Court proceeded to declare that the petitioner professor would also be entitled to maternity leave for child born through surrogacy. It, therefore, allowed the plea and ordered,
"... even in case of birth by surrogacy the parents who have lent the ova and the sperm would be entitled to avail leave. The mother being entitled to maternity leave and the father paternity leave."
In particular, it referred to the Delhi High Court's 2015 decision in Rama Pande v. Union of India, as well as the Bombay High Court's subsequent decision in Dr. Mrs Hema Vijay Menon v. State of Maharashtra.
The Court passed the order while directing the Savitribai Phule Pune University to adjust and record the leave taken by a professor, after the birth of her surrogate daughter, as maternity leave.
The petitioner-professor was unable to bear a second child. Therefore, the couple had opted for surrogacy. A surrogate mother delivered a baby girl on November 5, 2012.
Prior to the expected date of delivery, the petitioner-professor had sought maternity leave from the University to take care of the child. Ordinarily, since Savitribai Pune University is a State University, the employees are entitled to 120 days of paid maternity leave.
However, the Pune university denied petitioner's request on the ground that its maternity leave policy did not allow maternity leave in the case of a surrogate child. Since the petitioner was not the biological mother of the child, she was denied maternity leave.
The petitioner later approached the State Higher and Technical Education department to review its policy and grant maternity leave. When the department did not respond, the professor approached the Bombay High Court in 2015. Before the High Court, she prayed for the conversion of leaves taken by her to take care of her daughter, as maternity leave.
The High Court observed that the authorities should have had taken note of the prior rulings which had laid down that maternity leave benefits are also available to parents of surrogate children.
In view of the settled law, the Court proceeded to declare that the petitioner professor would also be entitled to maternity leave for child born through surrogacy. It, therefore, allowed the plea and ordered,
"... the Earned Leave and Half-pay Leave availed of by her should be entered in the record as maternity leave for the purposes of the leave account and that the said leave availed by the Petitioner during various intervals be converted into maternity leave."
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