In a landmark judgement, Kerala High Court today held that a woman, whose child is born of surrogacy, is also entitled to all maternity benefits.
The judgement in this regard was passed by Justice DS Naidu on a petition filed by P Geetha, Deputy General Manager with the Kerala Livestock Development Board, whose child was born of surrogacy.
Geetha had approached the High Court challenging her employer's decision not to grant her maternity leave on the ground that her child had been delivered by surrogacy and she was not the biological mother.
Disposing the petition, the court held that there cannot be any discrimination between genetic and surrogate mother. Genetic mother is required to be placed on the same pedestal as the natural biological mother.
The court held that the petitioner is required to be treated as a mother who has undergone pregnancy and delivered the baby and was entitled to all benefits that accrues to an employee, except convalescing after delivery.
From day one of the delivery, the petitioner is required to be treated as mother of the new born baby. Court declared that there ought not be any discrimination of a woman as far as maternity benefits are concerned on the grounds that the baby was obtained out of surrogacy.
The petitioner was entitled to all benefits an employee would have got post delivery, the court held. The child's specific rights, if any, can be extended to the mother also. The petitioner had waited for several years to get the baby after her only son was killed in a road accident.
According to the board the Staff Rules and Regulation had no provision to grant leave to a woman employee who got a baby through surrogacy.
However, when she applied for maternity leave, she was shocked to get a letter from the board stating that the rules did not permit any leave to the employees on maternity ground 'other than the maternity envisaged under the normal circumstances'.
She stated that the purpose of granting maternity leave was to take care of the newborn. There was no justification in refusing maternity leave to her on the ground that the baby was 'not born the normal way'. The care needed for babies born under normal circumstances and surrogacy was the same, she added.
The petitioner had waited for several years to get a baby. She underwent 20 years of infertility treatment and when they failed, decided to have a baby through surrogacy. Her son was born on June 18 last year.