Indian Kanoon - Search engine for Indian Law

The short question that arises for consideration in this writ petition is whether a woman employee working in the Chennai Port Trust is entitled to avail maternity leave even in case where she gets the child through arrangement by Surrogate parents?

2.The petitioner is working as an Assistant Superintendent in the Traffic department of the Chennai Port Trust. She had put in 24 years of service. She is married. Her son (Shyam Sundar) aged 20 years died die to road accident on 31.01.2009. After his birth, the petitioner has removed her uterus due to some problem on 30.04.2008. Therefore, she in order to have a child had entered into an arrangement with Prashanth Multispeciality hospital, Chennai to have a baby through surrogate procedure. Finally with the consent of her husband and his cooperation, a female baby was born on 08.02.2011 through a host mother. She had incurred substantial expenditure towards treatment. In order to look after the newly born baby, she had applied for maternity leave. But she was informed that she was not entitled for maternity leave (post delivery) for having a child through surrogate procedure though such a rejection was not possible in case of a person adopting a child. The petitioner, therefore, requested for sanction of maternity leave to look after the newly born girl child and reimburse the medical expenses and also to issue the FMI Card incorporating the newly born child through her representation, dated 17.6.2011. She sent a reminder on 13.8.2011. However, by proceedings, dated 22.11.2011, she was informed that the Chairman of the Port Trust had granted her two months period leave as a special case, which will be treated as an eligible leave. But the leave granted on 17.9.2011 for a period of 59 days from 08.02.2011 to 07.04.2011 vide medical certificate dated 17.09.2011 was subsequently cancelled. Her request for inclusion of the female child in the FMI card was also rejected. She was informed by a letter dated 05.12.2011 that inclusion of her daughter name G.K.Sharanya in the FMI Card does not arise. The petitioner produced before the respondent Port Trust all documents relating to surrogate arrangement, hospital expenditures incurred by her as well as the birth certificate given by the Corporation of Chennai evidencing that the female child was born on 08.02.2011. The name of the parents are described as the petitioner being the mother and her husband as her father. It is under these circumstances, writ petition came to be filed seeking to set aside the order dated 05.12.2011 and for a consequential direction to the Chennai Port Trust to grant leave to the petitioner on equal footing in terms of Rule 3-A of the Madras Port Trust (Leave) Regulations, 1987, which benefit was granted to adoptive parents.

5.The facts alleged by the petitioner regarding her marital status and the fact of her son died in a road accident was admitted. The birth of a child through surrogate arrangement was also admitted by the respondent. However, it was informed that on the petitioner sending a proposal, the matter was referred to the Ministry of Shipping and Surface Transport for clarification and guidelines. The Ministry in their letter dated 20.9.2011 informed the Port Trust that there was no provision / guidelines available in the CCS (Leave) Rules for the grant of maternity leave to a female Government employee for looking after her baby obtained through surrogate procedure. It was based upon the advice given by the Ministry, the leave given to her was cancelled and it was treated as eligible leave. Her further request to include the child in the FMI card was also rejected and it was informed that it cannot be considered. It was further stated that it was a peculiar case. In our Country getting a child through surrogate procedure is at a nascent stage. There are no rules or guidelines available. There are no provision in the Chennai Port Trust (Leave) Regulations, 1987 granting maternity leave to an employee who underwent surrogate procedure. No inspiration can be drawn from the Maternity Benefit Act, 1961. Apart from referring to the practice in the Australia where surrogacy was never treated as legal and in U.K., where surrogacy arrangement was legal, but advertising and other aspects of commercial surrogacy was prohibited under the Surrogacy Arrangements Act, 1985. Strangely the respondent in paragraph 18 made the following averments :

13.Alternatively, he contended that if law can provide child care leave in case of adoptive parents as in the case of Rule 3-A of the Madras Port Trust (Leave) Regulations, 1987, then they should also apply to parents like the petitioner who obtained child through surrogate agreement since the object of such leave is to take care of the child and developing good bond between the child and the parents.

14.However, the learned counsel for the Port Trust contended that in the absence of any specific legal provision, the question of this court granting leave will not arise.

15.In the light of these rival contentions, it has to be seen whether the petitioner is entitled for a leave similar to that of the leave provided under Rule 3-A and whether her child's name is to be included in the FMI Card for availing future benefits?

16.This court do not find anything immoral and unethical about the petitioner having obtained a child through surrogate arrangement. For all practical purpose, the petitioner is the mother of the girl child G.K.Sharanya and her husband is the father of the said child. When once it is admitted that the said minor child is the daughter of the petitioner and at the time of the application, she was only one day old, she is entitled for leave akin to persons who are granted leave in terms of Rule 3-A of the Leave Regulations. The purpose of the said rule is for proper bonding between the child and parents. Even in the case of adoption, the adoptive mother does not give birth to the child, but yet the necessity of bonding of the mother with the adoptive child has been recognised by the Central Government. Therefore, the petitioner is entitled for leave in terms of Rule 3-A. Any other interpretation will do violence to various international obligations referred to by the learned counsel for the petitioner. Further, it is unnecessary to rely upon the provisions of the Maternity Benefit Act for the purpose of grant of leave, since that act deals with actual child birth and it is mother centric. The Act do not deal with leave for taking care of the child beyond 6 weeks, i.e., the post natal period. The right for child care leave has to be found elsewhere. However, this court is inclined to interpret Rule 3-A of the Madras Port Trust (Leave) Regulations, 1987 also to include a person who obtain child through surrogate arrangement.