Surrogacy: Parents Who Lent Ova And Sperm Will Be Entitled To Maternity And Paternity Leave- Bombay HC [Read Order]

The Bombay High Court held that parents of a child born through surrogacy are also entitled to maternity and paternity leave.

Division bench of Chief Justice Pradeep Nandrajog and Justice NM Jamdar was hearing writ petition filed by Dr. Pooja Doshi seeking relief on rejection of maternity leave by her employer on the ground that Leave Rules and policy governing the rules do not permit leave for a child born out of surrogacy.

The petitioner had a son, Saurav and she felt he needed a sibling but as she was unable to bear a second child herself, so she opted for surrogacy after deliberating with her husband. The surrogate mother gave birth to a baby girl on November 5, 2012.

However, when the petitioner sought maternity leave to take care of the surrogate child in accordance with the expected date of delivery, it was denied.

Court observed-

"The issue is no longer res-integra. In the decision dated 22 July 2015 in Writ Petition No.3288 of 2015 Dr.Mrs.Hema Vijay Menon vs. State of Maharashtra, a Division Bench of this Court relying upon a decision of the Delhi High Court dated 17 July 2015 in the case of Rama Pande vs. Union of India, held that even in case of birth by surrogacy the parents who have lent the ova and the sperm would be entitled to avail leave. The mother being entitled to maternity leave and the father paternity leave."

Allowing the petition, the bench noted-

"The decision of the Division Bench has attained finality and thus we declare that the Petitioner would be entitled to maternity leave for child born through surrogacy."

Court held that Dr.Pooja was entitled to the relief sought by her in prayer clause (c), being that the earned leave and half-pay leave availed of by her should be entered in the record as maternity leave for the purposes of the leave account and that the said leave availed by the her during various intervals be converted into maternity leave.

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