Women employees who have a child through surrogacy, as well as those who bear the child on behalf of another woman, will be entitled to maternity leave in Haryana, as per an official directive.
This is a first for Haryana where till date there was no provision for grant of maternity leave to women employees who opted for surrogacy for bearing a child.
Referring to a judgment of the Delhi High Court and subsequent policy decision taken by the Government of India, the state finance department Wednesday issued the directions for the maternity leave for surrogate and commissioning mothers to all the administrative secretaries, heads of departments, boards, corporations, divisional commissioners and deputy commissioners. The directive is applicable with immediate effect.
“It has been decided that the maternity leave will now be admissible to the commissioning mother – that is the woman employee who engages the services of another female to conceive a child with or without the genetic material being supplied by her and/or her male partner – and also to the surrogate mother – that is the female employee who bears a child on behalf of another woman either from her own egg fertilized by the other woman’s partner or from the implantation in her uterus of a fertilized egg from the other woman – on the same terms and conditions as prescribed for maternity leave admissible to a woman employee who conceives and carries the child,” the directive reads.
The officials have been further directed that the “competent authority, based on material placed before it, would decide on the timing and the period for which maternity leave ought to be granted to a commissioning mother who adopts the surrogacy route”. The head of the respective department concerned will be the competent authority.
The officials will also be required to do a “keen and detailed scrutiny” when the leave is sought by a woman employee, who is the commissioning mother, of the pre-natal stage.
“In case maternity leave is declined at pre-natal stage, the competent authority would pass a reasoned order having regard to the material, if any, placed before it by the female employee who seeks to avail maternity leave,” the directive further reads.
To deal with the situations where both, the commissioning mother and surrogate mother, are state employees, the government has decided that “in such a situation, where both women, who are otherwise eligible for maternity leave, a suitable adjustment regarding grant of maternity leave at the same time or otherwise would be made by the competent authority”.
Regarding the post-natal period leave, the competent authority has been directed to “ordinarily grant leave except where there are substantial reasons for declining a request made in that behalf. In that case as well, the competent authority will have to pass a reasoned order”.
The Delhi High Court in 2015 had held that a woman government employee opting for a child through surrogacy is also entitled to maternity leave. Hearing the plea by a Kendriya Vidyalaya teacher, who had twins through surrogacy but was denied maternity leave as she was not the biological mother, the court had also held that a “female employee, who is the commissioning mother, would also be entitled to apply for maternity leave”.
The Union ministry of personnel, citing the Delhi HC order, in February 2018 had issued an official order stating that women employees, whose children are born through surrogacy, can avail of paid maternity leaves up to 26 weeks (about 180 days).