Surrogacy no bar to availing maternity leave: Himachal High Court grants relief to doctor

“A mother is a mother, be it by giving birth to a child naturally or being a commissioning mother… The petitioner, having become a commissioning mother on two occasions, has a right to be granted maternity leave on both the occasions and the act of the respondents of denying maternity leave to her is completely unsustainable in law,” the court said.

The dispute arose after the doctor became a mother through surrogacy on two occasions. She availed 180 days’ maternity leave from September 17, 2020 after the birth of her first child and again sought maternity leave from September 27, 2022 after the birth of her second child. The department, however, refused to treat the leave as maternity leave. She also sought release of her withheld salary for July and August 2021 and eight days of September 2021.

Earlier HC ruling

Senior Advocate Ajay Sharma, appearing for the petitioner, argued that Rule 43 of the CCS (Leave) Rules entitled a female government servant with fewer than two surviving children to 180 days’ maternity leave and allowed admissible leave to continue after that.

Justice Ajay Mohan Goel observed that motherhood cannot be distinguished based on the manner in which a child is born.

He said that even before the DoPT notification of June 2024, the issue had already been settled by a division bench of the Himachal Pradesh High Court in Sushma Devi vs State of HP (2021), which held that commissioning mothers are entitled to maternity leave and cannot be discriminated against just because they became mothers through surrogacy. The petitioner argued that the judgment had attained finality and was binding on the state.

The state, meanwhile, referred to departmental proceedings initiated against the petitioner regarding her absence from duty. However, the petitioner pointed out that those proceedings had already been closed and she had been exonerated by the competent authority on July 2, 2024.

“There is no need even to adopt the DoPT notification dated 18/6/2024, as in terms of the law declared by this Court, which is binding on the State of Himachal Pradesh, a female government employee…who is a commissioning mother or a surrogate mother is entitled for maternity leave at par with any other female government servant,” the court said.

Court rejects state’s stand

Justice Goel rejected the state’s argument, holding that the legal position was no longer open to debate in view of the division bench judgment in Sushma Devi. The high court observed that motherhood cannot be distinguished based on the manner in which a child is born and that maternity leave exists not only for the mother’s benefit but also for the child’s welfare during the crucial early months of life.

It referred to decisions of the high courts of Delhi, Bombay and Chhattisgarh, which similarly recognised the rights of commissioning mothers and emphasised that denying maternity leave in such cases would amount to discrimination.

The high court further noted that Himachal Pradesh had itself introduced Rule 43-B in 2022 granting 180 days’ child adoption leave to eligible female government servants adopting a child below one year of age.

“When the respondent-State has been considerate enough to grant child adoption leave in the case of adoption of a child, it is not understood as to why it is objecting to grant Maternity Leave to a surrogate mother and/or a commissioning mother,” the court observed.

Allowing the petition, the high court quashed the departmental communications denying maternity leave. It directed the state to treat the 180 days spent by the petitioner after the birth of each of her two children as maternity leave. The leave availed immediately thereafter is to be treated as admissible leave under Rule 43(4)(a) and Rule 43(4)(b) of the CCS (Leave) Rules.

The court also directed adjustment of the petitioner’s earned leave, wherever due, and ordered release of her withheld salary. The entire exercise has to be completed within two months.