Woman employees who had a baby through surrogacy cannot be discriminated against in the matter of granting maternity benefits, holds the Kerala High Court

The Kerala High Court on Tuesday held that there should not be any discrimination against woman employees who had a baby through surrogacy in the matter of granting maternity benefits.

Kerala High Court

The Court gave its ruling in a writ petition filed by P. Geetha, Deputy General Manager, Kerala Livestock Development Board, who obtained a baby through a surrogate mother, against the refusal of the board to grant her maternity leave.

The Kerala Livestock Development Board rejected her request on the ground that its staff rule and regulation did not provide leave to a woman employee who got a baby through surrogacy.

The petitioner contended that there was no justification for refusing maternity leave for the reason that the baby was born thorough a surrogate mother. She also contended that motherhood was an integral part of womanhood, and with advanced assisted-reproduction methods in place, one could not cling to the traditional meaning of maternity. A woman who had a baby through surrogacy should be treated just as a natural mother, and she should not be discriminated merely on the ground that she did not bear a child in her womb, said the petitioner. 

The Kerala High Court speaking through Justice Dama Seshadri Naidu held that the petitioner was entitled to all post-delivery benefits sans the leave for improving the health of the mother after delivery. In fact, the petitioner did not bear the child and she could not insist on leave for convalescing and regaining her health, the court said. 

The Court also observed that child-specific statutory benefits, if any, could be extended to the petitioner.