Madhu.T.KThe High Court of Kerala yesterday delivered a landmark judgement that surrogate mother should be given post maternity benefits by the employer. Rejecting the plea of Kerala Live Stock Development Board (the employer) that the Service Rules of the organisation( a PSU) does not provide for maternity benefits to employee who delivers child by artificial means, the Hon. Court ordered that such women employees are entitled to post maternity benefits equallant to natural mothers. The court observed that maternity benefits include leave for taking care of the child and 2 nursing breaks until the child attains 15 months old. The court said that from day one of the delivery, the petitioner is required to be treated as mother of the new born baby. Court also declared that there ought not be any discrimination of a woman as far as maternity benefits are concerned on the grounds that the baby was obtained out of surrogacy.
The complete text of the order is yet to come. The surrogacy has been accepted in practice though we are yet to come out with legal legislation. Therefore, the denial of maternity benefits to employee who became mother of a baby by surrogacy had been a matter of discussion then also. There are two important issues around this. The present judgement spells about granting of leave and benefits at par with the PSU staff service rules. Will it have any relevance to Maternity Benefit Act? Maternity Benefits Act says that no woman shall be asked to do any tedious job while she is pregnant. She is entitled to take 6 weeks leave before the expected date of delivery. If the judgement covers establishments covered by Maternity Benefits Act also, then will she be entitled to leave before child birth? It is understood that post delivery leave and benefits like nursing breaks should be given to the mother to take care of her baby.
I request team members to contribute their valuable thoughts in it.
From India, Kannur
pon1965Not surprising. whether natural or artificial, the woman carries a child in her womb. Hence, she should be treated at par. Good judgement. Pon
From India, Lucknow
Madhu.T.KIn surrogacy, the mother does not carry child in her womb but it is the surrogate mother who carries the baby for another. In fact the mother who becomes mother by surrogacy does not undergo pain of delivery. It is true that surrogate mother should be given maternity benefits. The matter is different and in this case the woman who becomes mother by surrogacy is claiming maternity benefits and the court has ruled that benefits which falls after the child birth shall be extended to the mother.
From India, Kannur
KH001Appreciate the decision of The High Court of Kerala to extend maternity benefits to surrogate mothers. Post delivery benefits should be given to such mothers to take care of the new born and to develop an emotional bond with the new baby. A welcomed decision.
From India, New Delhi
RhivuTo my opinion giving a blanket cover of all benefits isn't based on ground realities. Instead the Union Government has to look in to the required comprehensive amendments in the act. provisions like no expecting mother employees can be dismissed form service unless she has done something serious, or they cannot be made to do heavy work is redundant here. In fact provisions like setting up of Creche when 30 or more women workers are employed ( mentioned in factories act) needs objective revision like we can find in similar provisions in plantation act. Health coverages under ESI act will also need amendment as to whether the biological mother in surrogacy (for those employees who are covered and opting for surrogacy) will get benefits. Thus the Total health benefits needs revision from ESI ACT, maternity benefit act and health provisions in factories act.
varghesemathewIf both the mothers ie biological as well as surrogate ,are workers eligible under MB Act ,will all of them get postnatal benefit?.I think the surrogate mother alone should be given the benefits under MB Act because she alone is suffering pregnancy and child birth.The intention of the Act is also justifies it.
From India, Thiruvananthapuram
nathraoCourt: Woman becoming mother through surrogacy entitled to leave - The Hindu
The trend of decisions favouring maternity benefits for surrogate mother is increasing.(Though this decision is merely interim relief)
From India, Pune
Madhu.T.KThe Maternity Benefit (amendment) Bill, 2016, has provision for providing 12 weeks of leave to commissioning mother who becomes mother of a child after surrogate means. However, the person who carries the child and takes the pain of delivery has not been considered in the new amendment despite requests from various corners. The amended Act also provides for 12 weeks' leave for one who adopts a baby.
From India, Kannur