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9. The learned counsel for the petitioner has submitted that maternity either through biological process or through surrogacy is one and the same, and that for all intents and purposes the commissioning parents are the natural parents, with same set of rights and obligations. According to her, motherhood does not end with delivery of a baby, but continues, with more vigour, through the process of child rearing, which is an equally difficult task. To stress the accepted practice of surrogacy from the days time immemorial, the learned counsel has made a Biblical reference to Genesis 16:2 of the New Testament (King James Version): "And Sarai said unto Abram, Behold now, the LORD hath restrained me from bearing: I pray thee, go in unto my maid; it may be that I may obtain children by her. And Abram hearkened to the voice of Sarai."

18. In tune with the counter affidavit filed by the respondent Board, the learned Senior Counsel has contended that as per the Staff Rules and Regulations, a female employee is entitled to 180 days' maternity leave, but it cannot be provided on the grounds other than those specified under Clauses 44 and 50 of the Regulations. According to her, Rule 50, which exclusively deals with maternity leave, does not provide for leave in the case of surrogacy.

19. Expatiating on her submissions, the learned Senior Counsel has contended that in the case of gestational surrogacy, the biological mother does not carry the pregnancy and give birth to the child. In the present instance, since the petitioner has undergone neither pregnancy nor delivery of child, she is not entitled to any maternity benefits, which include leave as well.

31. Even in the absence of statutory frame work, surrogacy in India is not illegal, thus the country becoming a favourite destination for international destitutes of children. Before referring to the specifics, it is appropriate to appreciate the essential terminology employed in this field. Going by the glossary provided in 'Baby Makers' (Harper Collins), Gestational Surrogacy (GS) is a treatment process in which another woman, known as the gestational surrogate, undergoes the embryo transfer process and then carries the pregnancy to term. GS may be achieved with the intending mother's eggs or with eggs from a donor. Artificial Insemination Surrogacy (AIS) occurs when a surrogate mother becomes pregnant after being inseminated with sperm. After the birth, the surrogate mother relinquishes all parental rights and the child is given to the person(s) whose baby she carried. The Assisted Reproductive Technology (ART) comprises a group of therapies that manipulates the egg and/or sperm and/or early conception in order to establish a sustainable pregnancy. These procedures all stem from the basic IVF process.

32. In Baby Manji Yamada v. Union of India9 the Hon'ble Supreme Court, apart from tracing the etymological roots of surrogacy, has delineated different types of 9 (2008) 13 SCC 518 surrogacy, such as traditional surrogacy (also known as the Straight method), gestational surrogacy (also known as the Host method), which is the case here, altruistic surrogacy, and commercial surrogacy.

33. As stated above, the petitioner and her husband, being childless for more than two decades, had a baby through gestational surrogacy and took custody of the baby on the very day of birth in terms of the surrogacy agreement. The petitioner, being an executive in the first respondent Board, has applied for maternity leave. The employees of the first respondent Board are governed by the provisions of the Kerala Livestock Development Board Limited Staff Rules & Regulations, 1993 ('the Staff Rules' for brevity). Chapter IV of the Staff Rules deals with Leave Rules, which mandate that leave cannot be claimed as a matter of right, and that under exigent circumstances, the leave sanctioning authority has the discretion to refuse, postpone, curtail or revoke leave of any description and/or to recall to duty any employee on leave. The kinds of leave that can be provided are: Casual Leave, Compensation Leave, Special Casual Leave, Earned Leave, Half Pay Leave, Maternity Leave, Special Disability Leave, Extra Ordinary Leave and Study Leave. Rule 50 provides for maternity leave as under: