Surrogate mothers also have right to avail maternity leave, says Orissa HC

Orissa High Court has recently ruled that female employees who become mothers through surrogacy have the same right to maternity leave and other benefits as provided to natural and adoptive mothers.

The single judge bench of Justice S K Panigrahi gave the ruling on June 25 while hearing a petition filed by Supriya Jena, a female Odisha Finance Service (OFS) officer, in 2020.

Jena became a mother through surrogacy, but she was denied 180 days maternity leave by her higher authority in the Odisha government. So, she moved the high court against the government.

The court observed that a leave of 180 days is granted to female government servants on the adoption of a child up to one year of age in line with maternity leave as admissible to natural mothers for proper care of the adopted child.

However, there is no provision for maternity leave for the purpose of rearing a child blessed through surrogacy, it said.

"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.

It ruled that maternity leave should be granted to the employees who become mothers through surrogacy to ensure equal treatment and support for all new mothers, irrespective of how they become parents.

Providing maternity leave for these mothers ensures that they have the necessary time to create a stable and loving environment for their child, promoting the well-being of both the mother and the child, the high court said.

The court has directed the state government to sanction 180 days of maternity leave to the petitioner within three months of the communication of 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.