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Author Topic: Is a woman who has a child through surrogacy entitled to maternity leave?  (Read 1682 times)

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Offline advamrita

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Is a woman who has a child through surrogacy entitled to maternity leave? A decision by the Kerala High Court could give direction to India's ill-defined surrogacy laws

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At home in Kochi, P. Geetha enjoys the last days of uninterrupted play with her six-month-old baby. The deputy manager of the Kerala Livestock Development Board, who is at the fag end of her leave, can't wait to witness her little one's next milestone.

But the days are not without their share of worry - the status of her leave is to be decided by the Kerala High Court in Ernakulam. Because Geetha did not carry or deliver her child, her bosses believe that she is not entitled to maternity leave.

Her baby was delivered by a surrogate mother in Hyderabad in June. Geetha had then applied for 180 days of maternity leave, but her office turned down her application. She was told that she could proceed on leave without pay. So she filed a writ petition in the high court asking for maternity benefits.

Maternity leave for her is not a luxury but a necessity, she says. "Since my baby has to rely entirely on bottle feeding, I have to take special care," she says.

The court's judgment is eagerly awaited, for it will give a direction to India's surrogacy laws. And it will be an important step for a country where commercial surrogacy has been on the rise. With traffic moving away from Thailand, whose Parliament recently voted to make commercial surrogacy punishable with a 10-year jail term, the practice of surrogacy is taking on burgeoning proportions in India.

But when it comes to a law on surrogacy, there comes a pregnant pause. The Assisted Reproductive Technology (Regulation) Bill, 2013 - which was drafted in 2008 and subsequently revised - is expected to be discussed in this winter session of Parliament and has raised hopes once again.

The bill allows for the birth certificate of a child born through surrogacy to carry the name of the couple or person who commissions a surrogate to carry their baby. It defines a surrogate mother as an Indian citizen and resident "who agrees to have an embryo generated from the sperm of a man who is not her husband, and the oocyte of another woman implanted in her; and to carry the pregnancy to viability and deliver the child to the couple or individual who had asked for her surrogacy."

In some sectors, employers are coming to the aid of mothers who cannot or do not wish to be pregnant but want a child. In Gujarat's Anand district, where there is a booming baby industry, Dr Nayana Patel, who is in the surrogacy business, says four of her women patients whose babies were birthed by her surrogates were granted maternity leave and benefits. "Two were nurses attached to hospitals in Gujarat, and two others lived in the UK," she says.

Britain's newly minted Children and Families Act, 2014, to be implemented from next year, will entitle gay and straight couples having children through surrogacy to be eligible for paid shared leave, provided they've applied for a parental order that gives them parental rights and responsibilities over the child.

"Women who have babies through surrogates should be granted at least five months' maternity leave to bond with their babies, especially since they do not carry them in their wombs," says Lata (not her real name), whose third baby as a surrogate mother is due at Christmastime. Lata will be paid Rs 4 lakh for a single child, and another Rs 1 lakh or so if they're twins, by the New York couple who have hired her womb, she says.

Like the other surrogates, Lata says she will nurse the baby for about a fortnight - "doctor says it's good for the baby" - before the final handover. "After that, the baby needs time to feel and understand that those are his own parents," she adds.

This is what the doctor would have ordered for Geetha, who hopes the Kerala High Court takes a stance as compassionate as the Madras High Court had taken in a similar case only two years ago.

In the Kalaiselvi vs Chennai Port Trust case, a single bench judge of the Madras High Court had interpreted Rule 3-A of the Madras Port Trust (Leave) Regulations reserved for women adopting children, in a way that it extended to women who'd had babies through surrogacy.

Kalaiselvi, who was assistant superintendent in the Madras Port Trust's traffic department, had had a baby girl through surrogacy in 2011 after losing her 20-year-old son in a road accident two years prior.

The court's liberal interpretation of Rule 3 gave Kalaiselvi and her baby a year's head start. "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. Yet the necessity of bonding of the mother with the adoptive child has been recognised by the Central Government," the single judge bench of Justice K. Chandru had ruled.

Central government women employees who adopt babies are also entitled to the same benefits as in Rule 3: a year's leave for newborns; six months of leave for six to nine month olds; and three months for children who are nine months or older. However, mothers who already had two children at the time of adoption would not be eligible for this leave.

Kalaiselvi's decision to hire a surrogate also prompted her bosses to raise "moral, ethical and religious" questions over surrogate parenthood, only to be rubbished by the judge. "This court does not find anything immoral and unethical about the woman officer having obtained a child through surrogate arrangement," Justice Chandru said. "For all practical purposes, she is the mother of the girl child and her husband is the father."

Elsewhere, too, courts have taken positions accepting the concept of surrogacy. In 2008, the Supreme Court called surrogacy "a well known" method of reproduction.

There are many reasons why parents may want to opt for a surrogate mother to deliver their child. It could be because a woman is infertile or cannot carry a pregnancy to term, Justice Arijit Pasayat, who was one of the two judges dealing with a surrogacy related case, had pointed out. "A female intending parent may also be fertile and healthy, but unwilling to undergo pregnancy. Alternatively, the intended parent may be a single male or a male homosexual couple," the judge had said.

With the courts showing the way, Geetha and other mothers hope that the act will soon turn into a law - and put them on a firm footing.


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