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COMMISSIONING MOTHER ENTITLED FOR MATERNITY LEAVE IN CASE OF SURROGACY

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Dr KK Aggarwal and Ira Gupta    19 February 2018

Dr KK Aggarwal and Ira Gupta

The Department of Personnel and Training of Ministry of Personnel, Public Grievances and Pensions, Government of India has vide office memorandum bearing No.13018/6/2013 -Estt.(L) vide dated 29 January, 2018 has instructed all Ministries / Departments to give wide publicity and to implement the directions given by the Hon’ble High Court of Delhi in the order dated 17th July, 2015 in the Writ Petition No.844/2014 titled as Ms. Rama Pandey, Teacher, Kendriya Vidyalaya V/s UoI & Others. 

 

In the year 2015, one women namely Mrs. Rama Pandey, one Kendriya Vidyalaya teacher had approached the Hon’ble High Court of Delhi as her application dated 06.06.2013 for grant of maternity and Child Care Leave (CCL) was rejected. By this application, the petitioner sought 180 days maternity leave and 3 months Child Care Leave (CCL). Alognwith the said application the petitioner had deposited the requisite documents like surrogacy agreement and birth certificate of the child.

 

However, vide communication dated 10.10.2013, petitioner’s request was rejected by respondent no.3, based on, inputs received from respondent no.2 vide two communications dated 04.09.2013 and 19.09.2013. It was conveyed to the petitioner that there was no provision for grant of maternity leave in cases where the surrogacy route is adopted. 

 

The petitioner was, however, informed that the CCL could be sanctioned, in her favour, under Rule 43-A, which was applicable to “female government servants”. In the background of the aforesaid stand, the petitioner was requested to submit an application for CCL, in case she was desirous of availing leave on that account.

 

The petitioner being aggrieved, approached this court by way of the instant petition, filed, under Article 226 of the Constitution. After hearing the submissions of all the parties, the Hon’ble High Court of Delhi held that:

 

“24. In view of the discussion above, the conclusion that I have reached is as follows :-

  1. A female employee, who is the commissioning mother, would be entitled to apply for maternity leave under sub-rule (1) of Rule 43.
  2. 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.
  3. The scrutiny would be keener and detailed, when leave is sought by a female employee, who is the commissioning mother, at the pre-natal stage. In case maternity leave is declined at the pre-natal 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 women), a suitable adjustment would be made by the competent authority.
  4. In so far as grant of leave qua post-natal period is concerned, 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."

 

Source:

  1. Department of Personnel & Training order dated 29.01.2018 for maternity leave of commissioning mother in case of surrogacy
  2. Judgment dated 17th July, 2015 passed by the Hon’ble High Court of Delhi in the Writ Petition No.844/2014 titled as Ms. Rama Pandey, Teacher, Kendriya Vidyalaya V/s UoI & Others. 

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