The blog is authored by, Heena Malhotra, 4th Year Law Student, B.A. LLB. (Hons.) at Symbiosis Law School, Pune
Header Image Credits: Pexels Free Photo
The petitioner by the name K. Kalaiselvi, who was working for the Traffic Department of the Chennai Port Trust for over 2 decades had a child via surrogacy after losing her only child and son. After the baby was born, the petitioner was denied maternity leave and claim to medical expenses through the Family Medical Insurance card as she was not recognised the mother of the child as she had not given birth to the child but adopted her through surrogacy procedure. This was so despite there being a bye-law that she was entitled to maternity leave upon adoption by virtue of Rule 3-A of the Madras Port Trust (Leave) Regulations as the Central Civil Services (Leave) Rules being a central law did not recognize granting maternity leave to women obtaining a child through surrogacy. A case was instituted against the Port Trust for procuring maternity leave on equal footing as an adoptive mother with the biological mother. The petition was instituted under writ of Certiorari and Mandamus under Art. 226 of the Constitution of India.
In the cases where novel issues pertaining to existing legislations arise, which have not been adequately addressed or covered, it is of utmost importance that one goes through the objective or purpose of the legislation itself to determine the best course of action to answer the issues at hand. The purpose of the Maternity Benefit Act, 1961 is to regulate the employment of women when she undergoes a successful or unsuccessful process of becoming a mother. It must be noted that a mother is not just a figure who gives birth to the child but also someone who makes an indelible impression on the consciousness of the child according to the Vedas and other ancient scriptures. The Maternity Benefit Act, 1961 is a social security legislation which ensures that a female employee is paid during her leave intended for taking care of her child. The instant case is that of a female employee claiming paid maternity leave and medical insurance on having a child through a surrogacy procedure.
In the instant case, there existed an explicit bye-law that allowed maternity leave for adoptive mothers, yet it was denied by the Port Trust. The reliance for justification for denying the maternity leave as per the respondent was placed on the Ministry of Shipping and Surface Transport advice that there existed no such provision in the Central Civil Services (Leave) Rules.
The respondents furthered the justification that Central Civil Services (Leave) Rules should take precedence over the Madras Port Trust (Leave) Regulations as it was a central law and not meant for surrogate mothers. Funnily, another strange argument furthered by the respondent was that there existed moral, ethical, psychological and religious reservations in surrogacy procedure and hence, the Port was justified in ordering against a maternity leave.
Reliance was placed on the Baby Manji Yamada v. Union of India case where it was held that in the absence of a dispute between biological parents and host, the adoptive couple are the undisputed parents and hence the petitioner is mother of the child for the purpose of FMI card.
The petitioner also relied on certain international covenants having strong bearing on development of Indian jurisprudence. These included the:
- Article 25(2) of the Universal Declaration of Human Rights to convey that motherhood and childhood in all situations shall enjoy the same social protections.
- Beijing Declaration and Platform for Action of the Fourth World Conference on Women where it was recognized that women have the right to control all aspects of their health which was directly related to their empowerment.
- Convention on the Rights of the Child by the United Nations General Assembly by virtue of which the State has a special duty to ensure that maximum possible development of children is ensured.
The Court’s View and the Order
All the issues were held in favour of the petitioner, i.e., she was entitled to a paid maternity leave, recognized as the mother of the child via the surrogacy procedure and was entitled to claim medical expenses for the development of the child.
In this case, the judges looked at the intent of grant of maternity leave and the context in which the law has been created. A leap was taken from the codified text to the spirit of the legislation. It was also observed that given the progressive nature of the society, laws cannot remain stunted on the issue. The need was felt considering women’s participation in society and especially in the economy is important. The court came to the conclusion that the postnatal period of maternity leave which is given to traditional mothers is responsible for the care of the child and developing a bond with him/her.
Doctrine of Indirect Discrimination
“Work is at the root of a meaningful life, the path to individual independence, and a necessity for human survival and flourishing. It is also the distinctive means by which men concretize their identity as rational, goal-directed beings.” – Edward W. Younkins
Whenever limiting provisions such as in this instant case are placed on women, it is a limitation on the pursuance of a meaningful life of a human in the professional as well as the personal front as expressed by Sir Edward W. Younkins in the above quote. State has the utmost duty and responsibility to ensure that citizens are not limited to pursue means to self-actualization other than natural means.
An analogy must be drawn from the Nargesh Meerza case which involved a clause in the employment contract of air hostesses which stopped her from marrying or conceiving a child during the course of the employment. When a case was instituted against the employer, it was propounded by the judiciary that “aspiring for motherhood is a pious aspiration of enablement. It assigns completeness to a woman’s persona and is a transformation of a lady into a woman. Hence, a provision which stops females from aspiring motherhood is not only brutal and callous but also an open insult of an institution called “Women” which is one of the most primitive institution”.
Although in this case, the discrimination was not as apparent as in the Nagesh Meerza case, such rules which cause indirect discrimination and lead to a very formalistic understanding of discrimination under Article 15 almost lying on the verge that as long as discrimination is based on certain additional grounds other than sex, then it can be justified. The author is of the view that the doctrine of indirect discrimination (as developed in the above case) must have been employed and expanded upon in this case which discriminated between biological mothers (and adoptive mothers through regular adoption) and mothers who had children by way of surrogacy.
While the intent of the maternity legislation in the country is clear, it is a sorry state of affairs when a petition is instituted against a state body taking a detour from its own laws. The author concurs with the judgment and order of the Madras High Court as it took a progressive view and discarded the baseless justifications offered by the State commenting on the ethics and morality of surrogacy.
An appalling issue has been brought to light by a recent development which has taken away the right of female employees from claiming paid maternity to adoptive mothers. From such a development, it seems that we are still quite far away in recognizing the rights of women at the workplace. The new development restricts maternity leave to be only available to adoptive mothers who adopt children less than 3 months old. It is being contested by many NGOs and female employees that such a restriction is unjustified given the delays that take place in the adoption process in India. Moreover, the intention of the leave is again being transcended as the purpose of the leave is beyond the healthy development of the mother and child to include development of a bond between the parent and the child.
Views expressed are personal.