In a landmark judgment, the Orissa High Court has ruled that women who become mothers through surrogacy are entitled to maternity leave benefits, on par with biological and adoptive mothers. The court directed the state government to grant 180 days of maternity leave to an Orissa Finance Service (OFS) officer who was previously denied leave after having a child through surrogacy.
Background:
The petitioner, Supriya Jena, an OFS officer, opted for surrogate motherhood after facing difficulties conceiving naturally. She entered into a gestational surrogacy agreement with a surrogate mother in Mumbai, resulting in the birth of her child on October 25, 2018. Jena applied for maternity leave, which was initially granted from October 25, 2018, to April 22, 2019. However, the Finance Department later questioned the leave period, leading to the denial of maternity benefits due to the lack of specific provisions for surrogacy cases in existing rules.
Key Legal Issues:
1. Whether maternity leave should be granted to mothers who have children through surrogacy
2. Interpretation of existing maternity benefit rules in light of advancements in reproductive technology
3. Constitutional rights of surrogate mothers and their children
Court’s Decision and Observations:
Justice S.K. Panigrahi, in his ruling, emphasized that maternity leave should be granted to all new mothers, regardless of how they attain motherhood. The court quashed the Finance Department letter No.38444/F dated 15/11/2019 and G.A & P.G. Department letter No.15803/Gen dated 06/07/2020 that had denied maternity benefits to the petitioner.
The Court made several important observations:
1. On the right to motherhood:
“Right to life under Article 21 of the Constitution includes the right to motherhood and also, the right of every child to full development”.
2. On equal treatment:
“Maternity leave should be granted to employees who become mothers through surrogacy to ensure equal treatment and support for all new mothers, irrespective of how they become parents”.
3. On the importance of early bonding:
“The initial period after the birth of a child is crucial for the mother’s involvement in caregiving and nurturing, which is pivotal for the child’s development”.
4. On interpreting laws in light of medical advancements:
“It is well settled law that the rules and regulations in force should be interpreted in light of advancements in medical science and changes in societal conditions”.
The court directed the state government to sanction 180 days of maternity leave to the petitioner within three months of the order. Furthermore, it instructed the concerned department to amend relevant rules to treat children born through surrogacy similarly to those born through natural processes, ensuring all benefits are provided to commissioning mothers.
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Case Details:
W.P.(C) No. 30616 of 2020
Supriya Jena vs State of Odisha & Ors.
Bench: Dr. Justice S.K. Panigrahi
Legal Representation:
For the Petitioner: Mr. D.P. Nanda, Senior Advocate
For the Opposite Parties: Mr. D. Mund, Assistant Government Advocate
