Why shouldn’t a lady who has had a surrogate baby be granted maternity leave, the Bombay High Court asked the Indian Railways on Tuesday.
The court was hearing a petition filed a railway employee, in which she sought maternity leave in February last year as she was ‘expecting a surrogate child’. The authorities rejected this application in April citing absence of a provision that allowed for such a request to be entertained.
The woman, who is in her mid thirties and lives in the city’s eastern suburbs, said in a petition filed by her lawyer, Sandeep Shinde, that she was being discriminated against.
The division bench of justices V M Kanade and A R Joshi issued notices to the Railways and asked for a reply by March 24. The court observed that she should have been granted leave.
The woman cited the Indian Railway Establishment Code, which provides for maternity leave for an adoptive parent, as offering sufficient grounds for her to be granted time off. “In case of an adoption, the child neither genetically nor biologically belongs to the parents, whereas in surrogacy the child biologically belongs to the parents. And maternity leave is not just for the delivery of a child but for bonding with the mother and care of the child,” Shinde told the court.
According to the petition, the woman was married in 2004. She was unable to conceive and chose in vitro fertilisation as a means to have a child, but the procedure failed – she miscarried in the sixth month of pregnancy.
She then chose surrogacy as an option, in 2014 – the surrogate delivered twins in January last year.
In reply to her leave application, her employer asked her if she had received permission from her superiors before choosing surrogacy.
In reply, the woman said that the rule pertaining to an adoptive parent should apply to her, which was rejected sighting absence of any such provision.
The case will now be heard on March 24.