Maternity/Paternity Leave Benefit In Case Of Surrogate Child - CiteHR
Korgaonkar K A
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Can anybody clarify if the Leave mentioned as per Maternity Benefit act 1961 applicable to women who begets child through Surrogacy.
Please refer some case laws or the clause in the act.
Awaiting quick responses/suggestions.
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Dear Meera,
Its applicable. Please go through the below links which may helpful for u
K.Kalaiselvi vs Chennai Port Trust on 4 March, 2013
Maternity leave for surrogate mother
The case of Kalaiselvi was not under MB Act 1961.Further she was not pregnant ,not delivered a child.She got a girl child by a surrogate arrangement where another women delivered her child.
MB Act is applicable only in case where a women employee is either pregnant or under gone miscarriage or delivered a child or sickness arising out of these.It cannot be applied to a women who has never been pregnant.In surrogate arrangement it is not the employee(biological mother) but another women who is pregnant and delivering.Hence MB Act is not applicable to adoption cases and surrogate arrangement.
However if the employed person herself is the surrogate mother she is entitled for benefit under the MB Act.
Becuse the Act nowhere state that the women should be married at all.
Varghese Mathew
Dear Meera ji, I fully agree with Varghese ji. I really appreciate his reply. There are very few members from whom we can expect correct answer. Varghese ji is one of them.
As stated by Mr. Varghese any woman worker covered by the Act is eligible for the benifit irespective of marital status or legitimacy of the child. Regards, Vijay Rajguru
Dear All,
Thanks for responding with various suggestions on my query. The inputs have provided some data on the past cases and thoughts by you which is right. However, if someone can FIRMLY answer whether this can be made applicable to an employee who will get the child through surrogacy. Are there any Companies which has already bring this into practice. This will really be a good justification for me to take it forward to the Management.
I have given the answer based on MB Act.As already said by many members what is provided by the labour Acts is the minimum.Above that minimum is up to the Employer.
Varghese Mathew
Dear Meera ji,
Your query is FIRMLY answered by Varghse ji twice, in very clear words. He has told you the LAW correctly beyond any doubt. If you don't follow the law, it is a breach of law for which you are liable. If you do some thing more than law, it is not a breach of law for which you deserve blessings. Hope you have no doubt now.
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Dear Meera,

Please find extract of the judgment recently passed by the Delhi High Court, which will help you in getting Maternity Leave.

24. In view of the discussion above, the conclusion that I have reached is
as follows :-
(i). A female employee, who is the commissioning mother, would be
entitled to apply for maternity leave under sub-rule (1) of Rule 43.
(ii). 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.
WP(C) 844/2014 Page 31 of 31
(iii). The scrutiny would be keener and detailed, when leave is sought by a
female employee, who is the commissioning mother, at the pre-natal stage.
In case maternity leave is declined at the 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. In a situation where both the commissioning mother and the
surrogate mother are employees, who are otherwise eligible for leave (one
on the ground that she is a commissioning mother and the other on the
ground that she is the pregnant women), a suitable adjustment would be
made by the competent authority.
(iv). In so far as grant of leave qua post-natal period is concerned, the
competent authority would ordinarily grant such leave except where there
are substantial reasons for declining a request made in that behalf. In this
case as well, the competent authority will pass a reasoned order.
25. The writ petition is disposed of, in the aforementioned terms.
26. Parties shall, however, bear their own costs. One related link is below
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