In an interesting move,
Madras High Court (“High Court”), in K.
Kalaiselvi v. Chennai Port Trust (W.P.No.8188 of 2012), has allowed a writ petition whereby it held that even a “surrogate
mother” is entitled for a maternity leave under Rule 3-A of the Madras Port
Trust (Leave) Regulations, 1987 (“Regulations”).
Facts:
Petitioner (K.
Kalaiselvi), who was working as an Assistant Superintendent (Traffic
Department) at Chennai Port Trust (“Trust”), entered into an arrangement with a
multispecialty hospital for having a baby through surrogate procedure. Following
the birth of the child, she applied for maternity leave and for the inclusion
of the child in FMI card. However, in the absence of any provision relating to
surrogate mother under the Rules, her application for maternity leave and inclusion
of child in FMI card was rejected. Hence, she filed the petition before the High
Court for directing the trust to grant her leave on equal footing under Rule 3-A of the Regulations, which provides
leave benefit to adoptive parents.
It is also to be noted
that the petitioner had removed her uterus due to some problem (she also lost
her 20 year old son in an accident)
Issues before the High
Court:
In
the absence of any provision,
whether
a woman employee, working in the Chennai Port Trust, is entitled to avail
maternity leave even in case where she
gets the child through arrangement by “Surrogate parents”?
What is “Surrogacy”?
High Court, while
deciding this case, referred to the judgment of the Supreme Court in Baby Manji Yamada v. Union of India wherin
the scope of the term “surrogacy” has been defined.[1] Supreme
Court, in this case, defined surrogacy as:
“Surrogacy is a well-known method
of reproduction whereby a woman agrees to become pregnant for the purpose of
gestating and giving birth to a child she will not raise but hand over to a
contracted party. She may be the child's genetic mother (the more traditional
form for surrogacy) or she may be, as a gestational carrier, carry the pregnancy
to delivery after having been implanted with an embryo. In some cases surrogacy
is the only available option for parents who wish to have a child that is
biologically related to them.”
Further, Supreme Court,
in this case, also defined several forms of surrogacy:
(i)
Traditional
Surrogacy (also known as “Straight Method”) – In this form of
surrogacy, child is conceived with the intention of relinquishing the child to
be raised by others.
(ii)
Gestational
Surrogacy (also known as “Host Method”) – In this form of
surrogacy, surrogate becomes pregnant via embryo transfer with a child of which
she is not the biological mother.
(iii)
Altruistic
Surrogacy – In this form of surrogacy, surrogate receives no
financial reward for her pregnancy or the relinquishment of the child.
(iv)
Commercial
Surrogacy – In this form of surrogacy, gestational carrier is
paid to carry a child to maturity in her womb and is usually resorted to by
well-off infertile couples who can afford the cost involved. This medical
procedure is legal in several countries including in India
Apart from this
judgment of the Supreme Court, counsel for the petitioner also referred to the
judgment of Anna Johnson Vs. Mark Calvert
et al (“Supreme Court of California, 5 Cal 4th 84), Article
25(2) of Universal Declaration of Human Rights, Article 17 and 33 of the Beijing
Declaration and Platform for Action Fourth World Conference on Women, 1995 an
Article 6 of the Convention on the Rights of the Child by United Nations General
Assembly (“by a resolution on 20.11.1989”)
Can relief be provided to
a “Surrogate Mother” in the absence of an express provision?
It is not disputed that
no provision under the Regulations provides maternity to a “surrogate mother”. However,
High Court, while relating a surrogate mother to an adoptive parent, held that the
purpose of Rule 3-A of the Regulations is for proper bonding between the child
and his/her parents. In both the situations (surrogate mother an adoptive
parents), mother does not give birth to the child, yet the necessity of bonding
with the child in the latter case has been recognise by the Central Government.
Hence, in the opinion of the High Court, there is no reason why such benefit
should not be provided to a surrogate mother as well.
While allowing the
petition, reference was also made to the judgment of Supreme Court in Laxmi Video Theatres v. State of Haryana
reported in (1993) 3 SCC 715[2].
In this case, Supreme Court held that a legislation, though may not include a
particular word, should nonetheless be interpreted in a manner so as to accommodate
the technological advancement. Reference was made with respect to Rule 3-A of
the Regulations which provides benefit to the adoptive parents.
In the present case
before the High Court, though leave for “surrogate mother” was not provided
under the Regulations, it would be unjustifiable if maternity leave is not
granted to her. This is because of the fact that reason for granting leave
under Rule 3-A is to create a proper bond between mother and the child, which is
applicable in the situation of surrogate mother as well. Consequently, High
Court directed the respondent Trust to grant leave to the petitioner in terms
of Rule 3-A of the Regulations.
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