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Wednesday, February 25, 2015

Can benefits be denied to mums whose babies are born to surrogates? Bombay High Court to decide

Can a woman employee who had a baby through surrogacy be discriminated upon when it comes to granting of maternity benefits? The Bombay high court will decide on the issue after a nurse who was denied maternity leave by the central railway (CR) took up the issue with it. The CR contention was that as per its rules and regulations there was no provision to grant leave to a woman employee who got a baby through surrogacy.

A division bench comprising justices VM Kanade and AR Joshi has issued notices to the Central government and the Railways, asking them to respond in four weeks.

The 36-year old woman, married in 2004, could not conceive for a long period. Her petition states that in 2007 she underwent IVF on two occasions. However, she lost her child in 2008 when she was six months pregnant.

A doctor advised her to try surrogacy in 2012. Accordingly, she and her husband executed an agreement of surrogacy.

On January 27, 2014, when the surrogate completed 33 weeks of pregnancy, the woman applied for maternity leave. The surrogate was to deliver in February.

The Railways turned down her application. The divisional manager also asked her to clarify whether she had sought permission from the Railways before opting for surrogacy.

She replied in March 2014 that she was entitled to maternity leave as per Rule 551(C) of the Indian Railway Establishment Board which provides for 'child adoptive leave'. However, she was not granted surrogate leave.

She informed the Railways on January 29, 2015 that she has been blessed with twins and she should be granted child care leave from June 11, 2014, to June 10, 2015.

Her counsel, Sandeep Shinde, said the medical director informed that her application is sent to the Railways' Board for approval as the Indian Railway Establishment Board Rules were silent on child care leave for surrogate mothers.

However, she can proceed on leave pending approval. In case, her application is rejected then the leave would be considered as 'unpaid' leave.

Shinde argued that a woman who adopts a child is granted maternity leave. "Even fathers are granted paternity leave in adoption cases, then why not to such mothers (who get baby through surrogacy)?" asked Shinde.

Shinde cited a judgment of Madras HC wherein a woman who got child through surrogate mother was granted maternity leave.

Her petition prays that the Railways' letter refusing her leave be quashed and she be granted maternity leave.

The HC will hear the matter on March 24.


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