In case of birth by surrogacy, the parents who have lent the ova and the sperm would be entitled to avail leave. The mother being entitled to maternity leave and the father paternity leave.

“A commissioning mother  would have the same rights and obligations towards the child as the natural mother. Motherhood never ends on the birth of the child and a commissioning mother  cannot be refused paid maternity leave. A woman cannot be discriminated, as far as maternity benefits are concerned, only on the ground that she has obtained the baby through surrogacy. Though the commissioning mother did not give birth to the child, the child was placed in the secured hands of the commissioning mother as soon as it was born. A newly born child cannot be left at the mercy of others. Maternity leave to the commissioning mother  would be necessary. A newly born child needs the attention of the mother. There is a tremendous amount of learning that takes place in the first year of the baby’s life, the baby learns a lot too. Also, the bond of affection has to be developed. A mother, as already stated hereinabove, would include a commissioning mother or a mother securing a child through surrogacy. Any other interpretation would result in frustrating the object of providing maternity leave to a mother, who has begotten thechild.

A female employee , who is the commissioning mother, would be entitled to apply for maternity leave under Sub Rule (1) of Rule 43. The competent authority based on material placed before it would decide on the timing and the period for which the maternity leave ought to be granted  to the commissioning mother  who adopts the surrogacy route.

There appear to be an inertia in recognizing that motherhood can be attain via surrogacy and reminded the government that a commissioning mother need to bond  with the child  and at times takes over the role of breast feeding mother, immediately after the delivery of the child.

In sum , the commissioning mother would become the principal care giver upon the birth of child, notwithstanding the fact that child in a given situation is bottle fed. Undoubtedly, the fact that the surrogate mother carried the pregnancy to full term, involved physiological changes to her body which were not experienced commissioning mother but from this , could one possibly conclude that her emotional involvement  was any less if, not more than the surrogate mother.

Written by Adv Rohit Yadav

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