The Central Administrative Tribunal has come to the aid of a woman, working in the Ministry of Law & Justice, who was denied maternity leave as she had begotten her children through surrogacy.
The Tribunal directed the Ministry to sanction 180 days of maternity leave to the woman citing three high court’s verdicts which have held that the commissioning mother is also entitled for grant of maternity leave.
The woman is working as a Personal Assistant in the Legislative Department, Official Language Wing of Ministry of Law & Justice. As she was unable to conceive due to medical issues, she entered into Gestational Surrogacy Agreement with another woman.
The surrogate mother delivered two baby girls on February 13 last year. Being the biological mother she applied for grant of 180 days maternity leave to her with effect from the day the babies were born.
However, her application was rejected on the ground that according to Central Civil Services (CCS) Leave Rules, maternity leave cannot be granted to a government servant on getting surrogacy baby.
The woman then moved the Tribunal seeking to quash the order denying her the maternity leave.
Responding to her plea, the Ministry had defended its decision to deny the maternity leave saying the issue has been dealt with in Rule 43 of CCS (Leave) Rules which makes it absolutely clear that a commissioning mother or biological mother is not entitled for grant of maternity leave.
The Tribunal, however, cited to a February last year verdict of the High Court of Chhattisgarh which said, “If maternity means motherhood, it would not be proper to distinguish between a natural and biological mother and a mother who has begotten a child through surrogacy”.
It further referred to a 2016 office memorandum issued by the Department of Personnel & Training (DoPT) to point out that maternity leave can be granted to the surrogate as well as commissioning mothers as they also requires some time for bonding with the child.
It was informed by woman’s counsel that she has been paid salary for 180 days maternity leave, which she has already availed.
“The respondent (Ministry) is accordingly directed not to effect any recovery and regularise the salary paid by way of sanctioning the maternity leave of 180 days,” the tribunal ordered.
