Recently, the Orissa High Court held that a woman employee who becomes a mother through 'surrogacy' is entitled to maternity leave benefits. This decision underscores the importance of such leave not only for the well-being of the mother but also for the nurturing and health of the newborn child.

Granting judicial sanction to the crucial rights of female employees, the Single Bench of Dr. Justice Sanjeeb Kumar Panigrahi emphasized that...

“…right to life under Article 21 of the Constitution includes the right to motherhood and also, the right of every child to full development. If the Government could provide maternity leave to an adoptive mother, it would be wholly improper to refuse to provide maternity leave to a mother who had begotten a child through surrogacy procedure…”

Case Brief:

The petitioner, employed as the Joint Director (Accounts) at Gopabandhu Academy of Administration, applied for maternity leave from 25.10.2018 to 22.04.2019, following the birth of her child through surrogacy on 20.10.2018.

Following her maternity leave, the petitioner applied for earned leave from 23.04.2019 to 09.09.2019, and she resumed her duties on 10.09.2019. Her leave applications were subsequently forwarded to the Finance Department for approval.

However, the Under Secretary to the Government in the Finance Department returned the application, requesting the authorities to assess the eligibility of such leave according to the applicable leave rules for government servants.

During the course of hearing, the Court observed that under Rule 194 of the Odisha Service Code, a woman employee is entitled to 180 days of maternity leave. This benefit is also extended to female employees who become mothers through the adoption of a child up to one year of age. However, notably absent is a comparable provision for women who attain motherhood through 'surrogacy'.

In support of this view, the Court referenced the decision of the Rajasthan High Court in Smt. Chanda Keswani v. State of Rajasthan, which held that since surrogacy has been recognized by Parliament through the enactment of the Assisted Reproductive Technology (Regulations) Act, 2021, a woman should not be deprived of maternity leave for having a child through surrogacy.

Further, the High Court also cited the Supreme Court's decision in Anuj Garg v. Hotel Association of India, emphasizing that evolving social attitudes and expectations are crucial considerations in interpreting laws. Accordingly, the Court noted that rules and regulations should be interpreted in the context of advancements in medical science and evolving societal norms.

As a result, the Court directed the State to grant the petitioner 180 days of maternity leave. Furthermore, the Court ordered the incorporation of a provision in the Rules to ensure maternity leave for commissioning mothers, thereby ensuring equal treatment for children born through surrogacy and their mothers.

Case Title: Supriya Jena v. State of Odisha & Ors.

Case No: W.P.(C) No. 30616 of 2020

Date of Judgment: June 25, 2024

Counsel for the Petitioner: Mr. D.P. Nanda, Sr. Advocate and associates

Counsel for the State: Mr. Dhananjay Mund, Addl. Govt. Advocate