Landmark Judgment on Surrogate Mothers' Maternity Benefits: How Will This Impact HR Policies?

Landmark Judgment on Surrogate Mothers' Maternity Benefits

The High Court of Kerala yesterday delivered a landmark judgment that a surrogate mother should be given post-maternity benefits by the employer. Rejecting the plea of Kerala Livestock Development Board (the employer) that the Service Rules of the organization (a PSU) do not provide for maternity benefits to employees who deliver a child by artificial means, the Hon. Court ordered that such women employees are entitled to post-maternity benefits equivalent to natural mothers. The court observed that maternity benefits include leave for taking care of the child and two 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 the mother of the newborn baby. The court also declared that there should not be any discrimination against a woman regarding maternity benefits on the grounds that the baby was obtained through surrogacy.

The complete text of the order is yet to come. Surrogacy has been accepted in practice, though legal legislation is yet to be finalized. Therefore, the denial of maternity benefits to employees who become mothers of babies through surrogacy has been a matter of discussion.

Issues and Implications

There are two important issues around this. The present judgment addresses granting leave and benefits on par with the PSU staff service rules. Will it have any relevance to the Maternity Benefit Act? The Maternity Benefits Act states that no woman shall be asked to do any tedious job while pregnant and is entitled to take six weeks' leave before the expected date of delivery. If the judgment covers establishments governed by the Maternity Benefits Act, will she be entitled to leave before childbirth? It is understood that post-delivery leave and benefits like nursing breaks should be provided to the mother to take care of her baby.

I request team members to contribute their valuable thoughts on this matter.

Regards,
Madhu.T.K

Surrogacy and Maternity Benefits

In surrogacy, the mother does not carry the child in her womb; instead, it is the surrogate mother who carries the baby for another. In fact, the mother who becomes a mother through surrogacy does not undergo the pain of delivery. It is true that the surrogate mother should be given maternity benefits.

The matter is different in this case, where the woman who becomes a mother through surrogacy is claiming maternity benefits. The court has ruled that benefits that fall after the child's birth shall be extended to the mother.

Regards,
Madhu.T.K

I appreciate 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 newborn and to develop an emotional bond with the new baby. This is a welcome decision.

In my opinion, providing a blanket cover for all benefits isn't based on ground realities. Instead, the Union Government needs to consider comprehensive amendments to the act.

Provisions Needing Revision

Provisions such as no expecting mother employees can be dismissed from service unless she has committed a serious offense, or they cannot be made to do heavy work, are redundant here. In fact, provisions like the setting up of a crèche when 30 or more women workers are employed (as mentioned in the Factories Act) need objective revision, similar to what we find in the Plantation Act.

Health Coverage Amendments

Health coverages under the ESI Act will also need amendments, especially regarding whether the biological mother in surrogacy (for those employees who are covered and opting for surrogacy) will receive benefits. Thus, the total health benefits need revision from the ESI Act, Maternity Benefit Act, and health provisions in the Factories Act.

Eligibility for Postnatal Benefits Under the Maternity Benefit Act

If both the mothers, i.e., the biological as well as the surrogate, are workers eligible under the Maternity Benefit Act, will all of them receive postnatal benefits? I think the surrogate mother alone should be given the benefits under the Maternity Benefit Act because she alone is experiencing pregnancy and childbirth. The intention of the Act also justifies this.

Regards,
Varghese Mathew
[Phone Number Removed For Privacy Reasons]

Court: Woman becoming mother through surrogacy entitled to leave - The Hindu

The trend of decisions favoring maternity benefits for surrogate mothers is increasing. (Though this decision is merely interim relief)

The Maternity Benefit (Amendment) Bill, 2016, has provisions for providing 12 weeks of leave to a commissioning mother who becomes the mother of a child through surrogate means. However, the person who carries the child and endures 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 of leave for someone who adopts a baby.

Madhu.T.K