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Surrogacy and the Laws on Maternity Benefits
Five high courts across India have uniformly held that women employees who have children through surrogacy would be entitled to maternity benefits in accordance with the rules. How they have arrived at this conclusion is quite different in each case, and each judgment presents different approaches to address this legal question. Beyond the legal question, the approaches must also be closely examined for class biases and paternalistic assumptions about motherhood.
Over the last few years, high courts across India have been addressing an interesting question of law: would a woman employee who has had a child through surrogacy be entitled to maternity leave? Five high courts, namely, the Madras High Court, Kerala High Court, Delhi High Court, Bombay High Court, and Chhattisgarh High Court have decided cases on this issue. All of them have uniformly held that a woman employee is entitled to such maternity leave irrespective of the manner in which her child was born.
How they have framed the question and answered it makes for interesting comparison. The questions raised by all these cases see the high courts grappling with some combination and variation of the following questions: Is surrogacy just a technological development? Is it something that the law did not envisage and therefore is outside the purview of maternity benefits legislation? Does it ask us to recast notions of “motherhood”? And, what is the actual purpose of the maternity benefits legislation?
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