Kerala High Court on Tuesday ruled that an employed woman, who becomes mother through surrogacy, is entitled to child care benefits envisaged as per the rules.
The bench of Justice headed by Dama Seshadri Naid was acting upon a petition moved by P Geetha, deputy general manager with Kerala Livestock Development Board, who pleaded in the court that she be given six month maternity leave to take care of her baby born through surrogacy.
The petitioner said the hired woman had delivered the child on June 18. Since the surrogate mother has handed over the child to her legal custody, Geetha wanted to take care of the baby like a biological mother. She approach the Livestock Development Board for the six-month maternity leave, entitled for state government employees in Kerala.
However, the board rejected the petition, stating that she should submit medical certificate to get maternity leave granted. Hence, she moved the High Court arguing that she was entitled to all rights of a biological mother.
Geetha’s only son died in a road accident two decades back. Since then, she had undergone treatment, but could not conceive. As a last option she went for surrogacy. She had moved the application for maternity leave weeks before the hired woman was to deliver a child for her.
The court observed that that a biological mother and a surrogate mother should be treated on equal footing. Pre-natal care and post-natal care are important stages of motherhood. The petitioner should not be discriminated on the ground that she did not give birth for a child.
The government argued that it denied maternity leave for the petitioner on the ground that her motherhood was not through the natural process. The court observed that at time when same-sex marriages were legalized, a commissioning mother should not be denied right to care her child, obtained through surrogacy.