In a recent judgment, the Jaipur bench of the Rajasthan High Court has reaffirmed that mothers who have children through surrogacy should not be denied maternity leave, upholding the principles of equal rights and benefits.

Justice Anoop Kumar Dhand, serving as the sole judge, declared that it is unfair to discriminate against mothers seeking maternity leave solely because they had a child through surrogacy. The Court stressed that withholding maternity leave from surrogate mothers would be a violation of their right to life, as guaranteed under Article 21 of the Indian Constitution.

The Court asserted that the right to life, as described in Article 21, encompasses the right to motherhood and the right of every child to experience full development. It argued that if the Government can grant maternity leave to adoptive mothers, it would be unjust to deny the same benefit to mothers who have children through surrogacy by implanting an embryo created using the intended parents' genetic material in the surrogate mother's womb. The Court further emphasized that the State should not distinguish between natural, biological mothers, and mothers who have children through surrogacy.

The Court expressed the view that the State's refusal to grant maternity leave to surrogate mothers is unjustified because Article 21, which encompasses the right to life, also includes the rights of motherhood and the child's entitlement to love, care, protection, and attention. Making a distinction between natural biological mothers and surrogate or commissioning mothers would undermine the institution of motherhood.

The Court further clarified that babies born through surrogacy should not be left to the care of others, as they require the love, care, protection, and attention of a mother during their early years. The Court stressed that the bond of love and affection between the mother and children develops during this crucial post-birth period.

The Court highlighted the importance of motherhood in human civilization, stating that it forms the foundation of all societies. The family, as a fundamental social institution, is regarded as the backbone of society. The Court emphasized that a child's first perception of the world is shaped by their mother, and they develop their skills and understanding of the world through the family's perspective.

The Court's ruling came in response to a petition filed by a woman who had twins through surrogacy. After the birth of her twins, the petitioner sought maternity leave under the Rajasthan Service Rules of 1958 but was denied due to the absence of provisions for granting maternity leave to couples with surrogacy-born children.

The bench ordered state authorities to provide the petitioner with her entitled 180 days of maternity leave. The Court noted that courts across the country have consistently ruled that there should be no discrimination in granting maternity leave to both biological and surrogate mothers.

The Court emphasized that various High Courts in the country have previously ruled that natural, biological, surrogate, or commissioning mothers all possess the fundamental right to life and motherhood, as guaranteed under Article 21 of the Constitution. Furthermore, children born through surrogacy have the right to life, care, protection, love, affection, and development through their mother, and such mothers unquestionably have the right to receive maternity leave.

However, the Court acknowledged that existing laws do not explicitly address this matter and called upon the government to enact appropriate legislation to address this issue.

The judge recommended that it is now crucial for the government to introduce suitable legislation to ensure maternity leave for surrogate and commissioning mothers. In line with this recommendation, the Court directed the High Court Registry to send a copy of the order to the Union Ministry of Law and Justice, as well as to the Principal Secretary of the Department of Law and Legal Affairs in the Government of Rajasthan, with the intention of initiating necessary action on this matter.

Case: Chanda Keswani vs State of Rajasthan, S.B. Civil Writ Petition No. 7853/2020.