Even as the Centre mulls a proposal to extend maternity leave benefit to surrogates and commissioning mothers, the Central Administrative Tribunal (CAT) has set a precedence by approving 180-day maternity leave to a commissioning mother to enable her to bond with her newborn.
A commissioning mother is a woman who uses a surrogate to bear a child. There is no provision in India at present for any kind of child-care leave for surrogate or commissioning mothers.
In April, the department of personnel and training (DoPT) had proposed that 180 days may be granted as maternity leave to surrogate as well as commissioning mothers, in case either or both of them are government servants.
“The commissioning mother also requires time to bond with her child and take care of him/ her, hence she will also become eligible for child-care leave,” the proposed rules stated.
While the rules are yet to become a law, surrogates and commissioning mothers often have to take the fight to courts to get maternity leave benefits.
A nurse working in a government hospital in Delhi was forced to move the tribunal when her application for child-care leave to tend to her baby born out of surrogacy was rejected.
The woman got married in 2005 but due to certain health issues, she was unable to give birth. In 2014, she entered into a gestational surrogacy agreement with a woman to bear a child by using the in vitro fertilisation (IVF) methodology.
She applied for a 180-day maternity leave in June 2015 by duly enclosing all the requisite documents but her application was rejected. Meanwhile, a male child was born to the surrogate mother on June 10, 2015.
She went on earned leave from the next day for 51 days on the grounds that her newborn child needs care. The hospital, however, pointed out that she only had 18 earned leaves to her credit and directed her to apply for Extra Ordinary Leave (EOL) on private affairs for the remaining 33 days.
Even in the case of adoption, the Centre gives maternity leave benefit to the mothers to bond with the child, the tribunal noted.
It took into consideration various high court judgments, including a 2015 verdict of the Delhi high court where a commissioning mother was given equal footing in terms of child care leave with women who had children under normal circumstances.
Noting that the purpose of giving leave to the mother was proper bonding between the child and the parents, the tribunal quashed the order denying her 180-day maternity leave.