Maternity/Paternity Leave Benefit In Case Of Surrogate Child

Hi,

Can anybody clarify if the leave mentioned as per the Maternity Benefit Act 1961 is applicable to women who have a child through surrogacy? Please refer to some case laws or the clause in the act.

Awaiting quick responses/suggestions.

Meera

Dear Meera,

It's applicable. Please go through the below links which may be helpful for you:

- [K.Kalaiselvi vs Chennai Port Trust on 4 March, 2013](http://www.indiankanoon.org/doc/28691523/)
- [Maternity leave for surrogate mother](http://www.lawyersclubindia.com/forum/Maternity-leave-for-surrogate-mother-47908.asp#.Ud_t5DeGNH4)

Regards,
Narayan

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 woman delivered her child.

MB Act is applicable only in cases where a woman employee is either pregnant, undergone a miscarriage, delivered a child, or dealing with sickness arising from these situations. It cannot be applied to a woman who has never been pregnant. In a surrogate arrangement, it is not the employee (biological mother) but another woman who is pregnant and delivering. Hence, the MB Act is not applicable to adoption cases and surrogate arrangements.

However, if the employed person herself is the surrogate mother, she is entitled to benefits under the MB Act. Because the Act nowhere states that the woman should be married at all.

Varghese Mathew 9961266966

Dear Meera ji,

I fully agree with Varghese ji. I really appreciate his reply. There are very few members from whom we can expect the correct answer. Varghese ji is one of them.

As stated by Mr. Varghese, any woman worker covered by the Act is eligible for the benefit irrespective of marital status or legitimacy of the child.

Regards,
Vijay Rajguru

Dear All,

Thank you for responding with various suggestions to my query. The inputs have provided some data on the past cases and thoughts by you, which is right. However, can someone FIRMLY answer whether this can be made applicable to an employee who will get the child through surrogacy? Are there any companies that have already implemented this practice? This would really be a good justification for me to present it to the management.

Regards,
Meera

I have given the answer based on MB Act. As already said by many members, what is provided by the labor Acts is the minimum. Above that minimum is up to the employer.

Now, the firm answer you are seeking is: you can extend any benefits to an employee who gets a child by surrogate method depending on your will and capacity, notwithstanding any law or practice in other companies.

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 the law for which you are liable. If you do something more than the law requires, it is not a breach of the law for which you deserve blessings. Hope you have no doubt now.

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Dear Meera,

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

43(1).
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 more detailed when leave is sought by a female employee who is the commissioning mother at the prenatal stage. In case maternity leave is declined at the prenatal 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 woman), a suitable adjustment would be made by the competent authority.
(iv). Concerning the grant of leave for the postnatal period, 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:

http://timesofindia.indiatimes.com/india/Moms-of-surrogate-babies-can-get-maternity-leave-HC/articleshow/48120809.cms