Navigating Maternity Leave for Surrogacy: What Are the Rights and Duration?

Hello All,

I wanted to check with you all if a law related to maternity leave in the private sector exists if someone becomes a mother through the 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.

Regards

Hi buddy,

As per my knowledge, there is no provision in the law specifying separate rules for female employees who become pregnant due to surrogacy. Therefore, I strongly assert that the aforementioned woman is eligible to receive all the benefits under the law just like any other woman.

The benefits include:
- Six weeks of leave with wages before delivery
- Six weeks of leave with wages after delivery
- An additional one month of leave with wages in case of pregnancy-related illness.

With Regards,

Mr. Thumbs Up

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. Or,

2. Has she arranged with some other woman (a relative or someone else) who will become a surrogate mother for her, meaning the other woman will actually be carrying the child?

I think it would be better to know the situation clearly before jumping the gun.

Warm regards.

A woman employee is entitled to maternity benefits under the MB Act only if she becomes pregnant and delivers a child. However, the Kerala High Court has ruled that women who become mothers through surrogacy (carrying and confinement by another woman) are entitled to postnatal benefits.

Hi,

Kindly read the judgment of the Delhi High Court at http://www.livelaw.in/surrogate-mother-is-also-entitled-to-maternity-leave-delhi-high-court/.

Thank you.

Yes, she is entitled to maternity leave and benefits as both the child and the new mother have to adjust. This applies in the case of a man as well; if his wife is not present and he adopts the child, he can also receive the benefits. The exact case law is not known, but our friend lawyers can shed light on this matter.

Regards

I appreciate your interest and comments. However, 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.

Maternity Benefits Provisions

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, until now, that this benefit can be given when another woman is pregnant in place of the female employee.

Warm regards.

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 leave through surrogacy. As far as I know, it's being discussed in the parliament, and a proper/formal law would be in place sometime before a law is in place. Until then, I guess one can only utilize the various judgments, 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 well as paternity leaves and related aspects.

@ Shete14-- The Delhi HC Judgment relates ONLY to government employees [read the very first line], while the present case is related to a private sector employee.

Regards,
TS

Dear All,

Thank you 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 a few lawyers, and they have told her that it will be possible to get maternity leave in her firm based on a recent judgment in the High Court.

Regards

Maternity Benefits for Surrogate Mothers in India

1. Under major maternity benefit laws like the Maternity Benefit Act, 1961, and the ESI Act, 1948, there is no provision for the payment of maternity benefits to a "surrogate mother." The matter is perhaps under consideration by the Government of India for framing a comprehensive law relating to surrogacy in India.

2. However, an article appeared in the Times of India about six months ago relating to a judgment by one of the High Courts. It is mentioned for the 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 the above decision of the High Court could not be ascertained. But as a general rule, even under Central Civil Services rules, no maternity benefit is available to a surrogate mother.

Organized Indian industry is fast catching up with the world in welfare measures for its employees. However, maternity leave for surrogacy has not yet come into force in India. One has to wait for this development.