Harsh Kumar Mehta
Consultant In Labour Laws/hr
Kumaran Praveen
Recruitment/talent Acquisition, Career Counselling
Raj Kumar Hansdah
Shrm, Od, Hrd, Pms
Hr / Ir
Asst. Manager-legal
+2 Others

Thread Started by #e277435

Hello All,
I wanted to check with you all if a law related to maternity leaves in private sector exists if someone becomes a mother through surrogacy route. One of my friends who is unable to carry a child herself has chosen to attain motherhood with the help of a surrogate. Will she be entitled to maternity leave and if yes for what duration. Any information on this front will be helpful
11th January 2016 From India, Delhi
Hi buddy,
As per my knowledge there is no any provision in the law specifying separate rules for woman employee who become pregnant due to surrogacy.
Hence, I strongly tell you that the above said woman is eligible to get all the benefits under the law as other women.
Benefits are:
Six weeks of leave with wages before delivery
Six weeks of leave with wages after delivery and
extra one month of leave with wages in case of pregnancy related illness.
With Regards
Mr.Thumbs Up
11th January 2016 From India, Chennai
My dear friend Praveen
I think you have not understood the Question, or perhaps the matter is not very clear.
The question is...
1. Who is pregnant ?? Is it the Employee herself ?? This may not be the case, as the employee is unable to bear a child, as stated in the post.
2. Whether she has arranged with some other women (a relative or someone else) who will become a SURROGATE MOTHER for her; meaning the other women will actually be carrying the Child.
I think it would be better to know the situation clearly, before jumping off the gun.
Warm regards.
11th January 2016 From India, Delhi
A woman employee is entitled for maternity benefits under MB Act only if she becomes pregnant and deliver a child. But kerala high court has given a decision that women who became mother through surrogacy (carrying and confinement by another woman) is entitled for post natal benifits.
12th January 2016 From India, Thiruvananthapuram
Hi, Kindly read judgment of delhi high court. http://www.livelaw.in/surrogate-mother-is-also-entitled-to-maternity-leave-delhi-high-court/
12th January 2016 From India,
Yes ,she is entitled for maternity leave & benefit as Child & New Mother has to adjust .
This is in case of Man also if wife is not there and he adopt the child he get the benefit.Exact case law not, aware our Friend lawyers can put light on this
12th January 2016 From India, Mumbai
Dear friends
I appreciate your interest and comments.
But, let the member posting the thread answer :
Who is pregnant ???
It seems the employee is taking the help of another lady who is the surrogate mother.
This can be inferred from the fact that it is stated that the female employee herself is unable to carry a child.
also, please recall the provisions of availing the maternity Benefits as per the Act.
Under the Act, a woman employee needs to be certified by a Doctor that she is pregnant.
There is no provision, TILL NOW, that this benefit can be given when another woman is pregnant, in place of the female employee !!!!
Warm regards.
12th January 2016 From India, Delhi
I don't see any reason to get confused.
Based on what the Thread Initiator mentioned, the employee is NOT THE ONE who is pregnant.
To answer the original query, there's no Law, as of today, that covers maternity leaves through surrogacy. As far as I know, it's being discussed in the parliament & a proper/formal Law would be sometime before a Law is in-place. Until then, I guess one only can utilize the various judgements........but this route is prone to interpretation.
However, individual Companies are now coming-up with their own set of HR Policies that address this situation, as also Paternity Leaves & related aspects.
@ Shete14--
The Delhi HC Judgement relates ONLY to Govt employees [read the very First line], while the present case is related to a Private sector employee.
13th January 2016 From India, Hyderabad
Dear All,
Thanks for your comments on this topic. Actually my friend is not pregnant. She is going to have a child with the help of a surrogate mother. She has spoken to few lawyers and they have told that it will be possible to get maternity leaves in her firm based on a recent judgement in HC.
14th January 2016 From India, Delhi
Yes, Lawyers will only speak about the possibilities to their clients, without guaranteeing any favorable result.
You may engage a Lawyer if they are willing for Conditional Remuneration (i.e the client pays if she wins the case).
Warm regards.
14th January 2016 From India, Delhi
1, Sir, under major maternity benefit laws like the Maternity Benefit Act, 1961 as well as under ESI Act, 1948 there is no provision for payment of maternity benefit to a "surrogate mother". The matter is perhaps under consideration with the Govt. of India for framing a comprehensive law relating to surrogacy in India.

2. However, an online link of the article appeared in the times of india about six months earlier relating to judgment of one of the High Court is mentioned as follows for kind consideration of seniors:-

Moms taking surrogacy way can get maternity leave: HC <link updated to site home> ( Search On Cite | Search On Google )

3. Whether the concerned department has appealed to the Supreme Court from above decision of High Court could not be ascertained. But as a general rules even under Central Civil Services rules, no maternity benefit is available to surrogate mother.
14th January 2016 From India, Noida
Organised Indian industry is fast catching up with the world in welfare measures for its employees.
But maternity leave for surrogacy has not yet come into force in India.
One has to wait for this development.
14th January 2016 From India, Pune
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