Introduction
This Case Update provides a brief analysis of the recent judicial decisions delivered by the Supreme Court of India (SC) and High Court of Bombay, on certain labour and employment matters pertaining to maternity / paternity leave in surrogacy cases, wage claims by absentee employees and communication of performance appraisals to concerned employees.
Case Name: Dr. Pooja Jignesh Doshi v. The State Of Maharashtra
Citation: 2019 SCC Online BOM 1433.
Decided Date: 03.07.2019
Judgment By: the Division Bench of High Court of Bombay (Court)
Judges Name: Pradeep Nandrajog, CJ and N.M. Jamdar, J.
Issue Involve: Surrogate Parents are entitled to Maternity and Paternity Leave
Argument:
- Unable to bear a second child and forming the opinion that a sibling was needed for Master Saurav, a son born to the Petitioner; with consent of her husband the Petitioner chose the route of surrogacy. The surrogate mother gave birth to a baby girl on 5 November 2012.
- But prior to it, with reference to the expected date of delivery, the Petitioner sought maternity leave to take care of the surrogate child. The same has been denied to the Petitioner on the 2 20 WP 1665-2015.doc ground that the Leave Rules and the policy governing the Rules do not permit maternity leave for a surrogate child.
- The issue is no longer res-integra. In the decision dated 22 July 2015 in Writ Petition No.3288 of 2015 Dr.Hema Vijay Menon vs. State of Maharashtra, a Division Bench of this Court relying upon a decision of the Delhi High Court dated 17 July 2015 in the case of Rama Pande vs. Union of India, held that even in case of birth by surrogacy the parents who have lent the ova and the sperm would be entitled to avail leave. The mother being entitled to maternity leave and the father paternity leave.[1]
Judgement:
A mother, as already stated hereinabove, would include a commissioning mother or a mother securing a child through surrogacy. Any other interpretation would result in frustrating the object of providing maternity leave to a mother, who has begotten the child.
Following the said decision, the Court held that the petitioner was entitled to maternity leave for the child born through surrogacy. It was ordered that various leaves availed of by the petitioner be converted to maternity leave as prayed for by the petitioner.[2]
Act Involved:
Maternity Benefit (Amendment) Act, 2017
Judgments Followed:
Dr.Hema Vijay Menon vs. State of Maharashtra[3], Rama Pande v. Union of India[4]
Case Comment:
The above cases dealt with matters arising prior to 1 April 2017, at which time the government, by way of Maternity Benefit (Amendment) Act, 2017 (effective from 1 April 2017), introduced an explicit provision in the Maternity Benefit Act,1961, providing that even a commissioning mother (i.e. a biological mother who uses her egg to create an embryo implanted in any other woman) shall be entitled to paid maternity leave of 12 weeks from the date the child is handed over to the commissioning mother. Further, the High Court of Bombay has also held that a commissioning father is also entitled to paternity leave. As of date, paternity leave is not statutorily provided in India, and is largely discretionary.
[1] https://indiankanoon.org/doc/132317922/
[2] https://www.daaman.org/jd/Dr-Ms-Pooja-Jignesh-Doshi-Vs-The-State-of-Maharashtra-and-another/Parents-of-Surrogate-Child-entitled-to-maternity-and-paternity-leave
[3] 2015 SCC OnLine Bom 6127
[4] 2015 SCC OnLine Del 10484,
