The order was passed on a plea filed by a woman who begot twins through the process of surrogacy.
After the birth of the twins, the petitioner sought to avail the Maternity leaves as per the Rajasthan Service Rules, 1958.
However, she was denied maternity leaves on the ground that there is no provision under the 1958 Rules to grant maternity leave to couple having children through surrogacy.
While ordering the State authorities to grant the petitioner her 180 days maternity leaves, the bench noted that though courts across the country have held that there can be no discrimination in granting such leaves to biological or surrogate mothers.
“Once, it has been held by the several High Courts of our Nation including this Court that there is no distinction between the natural, biological and surrogate or commissioning mothers and all of them have fundamental right to life and motherhood, contained under Article 21 and children born from the process of surrogacy have the right to life, care, protection, love, affection and development through their mother, then certainly such mothers have right to get maternity leave,” the Court underscored.
The Court, however, noted that the law was silent in this regard and hence urged the government to bring appropriate legislation.
“Hence, this is high time for the government to bring appropriate legislation in this regard for grant of maternity leave to the surrogate and commissioning mothers,” the judge recommended.
It ordered the High Court Registry to forward the copy of the order to the Union Ministry of Law and Justice as well as to the Principal Secretary, Department of Law and Legal Affairs, Government of Rajasthan for action.
Source: Barandbench
