Mothers whose children were born by surrogacy in India will be entitled to pre- and post-natal maternity leave, following a high court ruling in Delhi on Friday.
The judgement concerned a petition filed by employee of Kendriya Vidyalaya Sangathan in Delhi, who was fighting to receive maternity leave after becoming the mother of a child born by surrogacy.
Opponents of the petition attempted to stop the law from passing, using the argument that changing maternity leave laws may open the possibility of surrogacy to gay couples – and single parents – who are looking to conceive.
With no central or state government ruling on surrogacy and maternity benefits, this judgement fills a gap in the law, allowing the commissioning mother, rather than the surrogate who carried the baby, to be recognized as the legal mother of the child.
On delivering the ruling, Justice Rajiv Shakdher said: ‘There appears to be an inertia in recognizing that motherhood can be attained, even via surrogacy.’
He added: ‘A commissioning mother needs to bond with the child and at times take over the role of a breast-feeding mother, immediately after the delivery of the child.’
‘In sum, the commissioning mother would become the principal care-giver upon the birth of the child.
Undoubtedly, the fact that the surrogate mother carried the pregnancy to full term, involved physiological changes to her body, which were not experienced by the commissioning mother but, from this, could one possibly conclude that her emotional involvement was any less, if not more, than the surrogate mother?’
Commercial surrogacy in India is legal, although regulations introduced in January 2013 stopped foreign same-sex couples from using Indian surrogate mothers to carry their children, after restrictions were tightened.
Only men and women who have been married for two years are granted visas for the purpose of surrogacy.
There are also biological restrictions on who can and cannot be a donor or surrogate.
The Law Commission of India issued the following observations when surrogacy was legalized: ‘One of the intended parents should be a donor as well, because the bond of love and affection with a child primarily emanates from biological relationship.
‘Also, the chances of various kinds of child-abuse, which have been noticed in cases of adoptions, will be reduced.
‘In case the intended parent is single, he or she should be a donor to be able to have a surrogate child. Otherwise, adoption is the way to have a child which is resorted to if biological (natural) parents and adoptive parents are different.’