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The petitioner went through five cycles of In Vitro Fertility (IVF) procedures at Jaslok Hospital, Mumbai, to conceive the child, however, due to certain ailments, the petitioner was incapacitated to bear the child and the attempts were unsuccessful. Upon the failure of IVF procedures at Jaslok Hospital at Mumbai, the petitioner was asked by an eminent Doctor at the Jaslok Hospital to opt for the surrogacy procedure. After consultation with her husband, the petitioner decided to have a child through surrogacy arrangement. In furtherance of the said desire, in March 2013, an embryo was successfully transplanted in the womb of a surrogate mother. On 04.12.2014, the surrogate mother went into labour and the petitioner and her husband rushed to Mumbai. The surrogate mother delivered a baby boy and the said child was immediately placed in the hands of the petitioner and her husband.

It is worthwhile to mention that the petitioner has spent an amount of Rs.45,00,000/- (Rs. Forty five lakh) for the surrogacy procedure.

With a view to look after the newly born baby, the petitioner applied for maternity/ child care leave to the Principal of the respondent No. 4 - College as according to the petitioner, the petitioner was entitled to maternity leave in view of the provisions of Maharashtra Civil Services (Leave) Rules, 1981, which recognize the right of a woman to maternity leave and are applicable to the Lecturers like the petitioner. The petitioner also sought support from the Government Resolution dated 28.07.1995, that provides for maternity leave to the adoptive mother in the same manner as is available to a natural mother. The Principal of the respondent No. 4 - College approved the leave and the proposal was forwarded to the Joint Director of Higher Education, for necessary action. To the surprise of the petitioner, the Respondent No. 3 - the Joint Director of Higher Education, Nagpur informed the respondent No. 4 - Principal of the College, by the impugned communication dated 07.05.2015, that there was no provision for granting maternity leave to a mother who begets a child through surrogacy procedure, in the Government Resolution dated 28.07.1995. The petitioner has challenged the communication dated 07.05.2015, by this petition.

It is said that being a mother is one of the most rewarding jobs on the earth and also one of the most challenging. To distinguish between a mother who begets a child through surrogacy and a natural mother who gives birth to a child, would result in insulting womanhood and the intention of a woman to bring up a child begotten through surrogacy, as her own. A commissioning mother like the petitioner would have the same rights and obligations towards the child as the natural mother. Motherhood never ends on the birth of the child and a commissioning mother like the petitioner cannot be refused paid maternity leave. A woman cannot be discriminated, as far as maternity benefits are concerned, only on the ground that she has obtained the baby through surrogacy. Though the petitioner did not give birth to the child, the child was placed in the secured hands of the petitioner as soon as it was born. A newly born child cannot be left at the mercy of others. A maternity leave to the commissioning mother like the petitioner would be necessary. A newly born child needs rearing and that is the most crucial period during which the child requires the care and attention of his mother. There is a tremendous amount of learning that takes place in the first year of the baby's life, the baby learns a lot too. Also, the bond of affection has to be developed. A mother, as already stated hereinabove, would include a commissioning mother or a mother securing a child through surrogacy. Any other interpretation would result in frustrating the object of providing maternity leave to a mother, who has begotten the child.

Rule 74 provides for maternity leave to a female government employee. We do not find anything in Rule 74 which disentitles the petitioner to maternity leave, like any other female government servant, only because she has attained motherhood through the route of surrogacy procedure. It is worthwhile to note that by the Government Resolution dated 28.07.1995, maternity leave is not only provided to a natural mother but is also provided to an adoptive mother, who adopts a child on its birth. The only reason for refusing maternity leave to the petitioner is that there is nothing in the Government Resolution, dated 28.07.1995 for providing maternity leave to the mother who begets the child through surrogacy. If the Government Resolution, dated 28.07.1995 provides maternity leave to an adoptive mother, it is difficult to gauge why maternity leave should be refused to the mother, who secures the child through surrogacy. In our view, there cannot be any distinction whatsoever between an adoptive mother that adopts a child and a mother that begets a child through a surrogate mother, after implanting an embryo in the womb of the surrogate mother. In our view, the case of the mother who begets a child through surrogacy procedure, by implanting an embryo created by using either the eggs or sperm of the intended parents in the womb of the surrogate mother, would stand on a better footing than the case of an adoptive mother. At least, there cannot be any distinction between the two. Right to life under Article 21 of the Constitution of India includes the right to motherhood and also the right of every child to full development. If the government can provide maternity leave to an adoptive mother, it is difficult to digest the refusal on the part of the Government to provide maternity leave to a mother who begets a child through the surrogacy procedure. We do not find any propriety in the action on the part of the Joint Director of Higher Education, Nagpur, of rejecting the claim of the petitioner for maternity leave. The action of the respondent Nos. 1 to 3 is clearly arbitrary, discriminatory and violative of the provisions of Articles 14 and 21 of the Constitution of India. It is useful to refer to the unreported judgment of the Delhi High Court in the case of Rama Pande vs. Union of India, and relied on by the learned counsel for the petitioner, in this regard.