Ms. Parul has initiated a very interesting thread.

Valuable advice of learned experts/members is sought.

From company’s point of view it may at the best be a case of company’s adoption leave policy, for the biological mother, but no paid time under the company’s maternity leave policy, and paternity leave for biological father by the company in which he is employed.

The lady and her husband might have decided for adopting the route of surrogacy due to some medical complications/advice of the doctor, as able bodied mothers can deliver the child. However the number of such ladies or couple in India and even worldwide is believed to be small. Apex court decisions in this regards may set a precedence. It is felt that some lawsuits have been/are being persued wroldwide.

The mothers who use surrogacy actually do not undergo strenuous task of giving birth, labor and delivery. These mothers and their husband like any other parent need to ensure the newborn survives, and they bond with the children, raise them to be good for society.

The real reason for having a surrogate mother than to adopt is so that one can have a biological blood connection to the baby. The parent can carry on their bloodline and family name into the future using either his or his partner’s egg or sperm or both. Adoption gives no such connection or control.

As this concept is entirely new in India so there are no specific laws dealing with such complications as asked by Parul.

I would like to get a clarity on the query - Is the query is about a women carrying a child of another woman by surrogacy OR The women whose child is carried by another women by surrogacy!, in the first case, the women ought to be eligible for maternetity leave. In the second case, the question of materinity leave does not arise.

vasudevan

For Govt servant the CCS(Leave) Rules provide:-

(a) Leave to female Government servant on adoption of a child-

A female Government servant, with less than two surviving children,

on adoption of a child may be granted leave of the kind due and

admissible (including, leave not due and commuted leave not

exceeding 60 days without production of medical certificate) for a

period up to one year or till such time the child is one year old,

whichever is earlier. – Rule 43-B.

(f) Maternity Leave

• Leave as under is admissible to married/unmarried

female employees during -

(a) Pregnancy: 135 days.- Admissible only to

employees with less than two surviving children. – Rule

43(1)

(b) Miscarriage/abortion

(induced or otherwise):

Total of 45 days in the entire service excluding any such

leave taken prior to 16-06-1994. Admissible irrespective

of number of surviving children. Application should be

supported by a certificate from a Registered Medical

Practitioner for Non Gazetted Officers and from

Authorised Medical Attendant for Gazetted Officers. –

Rule 43 (3)

(i) The leave is not debited to the leave account. – Rule 43 (5)

(ii) It is granted on full pay. – Rule 43 (2)

(iii) It may be co mbined with leave of any other kind. –

Rule 43 (4)

(iv) Not admissible for ‘threatened abortion – Rule 43, GID (4)

Maternity benefit Act is brought on the statute book for the benefit of female employees,who need rest during and after pregnency.The Act is concerned with fact of pregnency and not whether it is through wedlock or otherwise.Thus the benefits should be available to female employees,who carries other's child by surrogacy.

I have given above the rules applicable to Govt employee. Some extract of maternity benefit Act is as under.

Section 5

[(1) Subject to the provisions of this Act, every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit at the rate of the average daily wage for the period of her actual absence, that is to say, the period immediately preceding the day of her delivery, the actual day of her delivery and any period immediately following that day.]

Sectin 5B

Every woman-

(a) Who is employed in a factory or other establishment to which the provisions of the Employees' State Insurance Act, 1948 (34 of 1948), apply;

(b) Whose wages (excluding remuneration for overtime work) for a month exceed the amount specified in sub-clause (b) of clause (9) of section 2 of that Act; and

(c) Who fulfils the conditions specified in sub-section (2) of section 5,

Shall be entitled to the payment-6f maternity benefit under this Act.]

Section 11

Every woman delivered of a child who returns to duty after such delivery shall, in addition to the interval for rest allowed to her, be allowed in the course of her daily work two breaks of the prescribed duration for nursing the child until the child attains the age of fifteen months.

Section 9

Leave for miscarriage, etc. In case of miscarriage or medical termination of pregnancy, a woman shall, on production of such proof as may be prescribed, be entitled to leave with wages at the rate of maternity benefit, for a period of six weeks immediately following the day of her miscarriage or, as the case may be, her medical termination of pregnancy].

Section 10

A woman suffering from illness arising out of pregnancy, delivery, premature birth of child ¹[miscarriage, medical termination of pregnancy or tubectomy operation] shall, on production of such proof as may be prescribed, be entitled, in addition to the period of absence allowed to her under section 6, or, as the case may be, under section 9, to leave with wages at the rate of maternity benefit for a maximum period of one month.

All these rule require the beneficiary to be woman.  There is no stipulation that she should be married either and child be of her husband only.

Should Women Get Paid Maternity Leave If They Weren’t Pregnant?

Or, put another way: should women be denied paid leave because they are medically unable to carry a child? That’s the nub of a lawsuit filed by a Long Island, N.Y., woman against her employer, a pharmaceutical company based in Lexington, Mass.

Krill had previously given birth to a child in 2007, but according to the suit she filed against Cubist in a U.S. District Court in Massachusetts, she was subsequently diagnosed with Asherman’s syndrome, a condition that often causes scar tissue in the uterus and results in reproductive disability.

She said she expected a similar benefit after her twins arrived. Only this time she wasn’t delivering them, her surrogate was. She should be given the same paid maternity leave benefits as every other biological mother in the company. Were it not for her disability, she would be receiving paid maternity leave, Krill argues.

A relationship in which one woman bears and gives birth to a child for a person or a couple who then adopts or takes legal custody of the child; also called mothering by proxy.

 Cubist’s human resources department saw things differently. The company granted Krill five days of paid leave under the company’s adoption leave policy, but no paid time under the company’s maternity leave policy. According to court documents, Cubist offers parents five days of paid leave plus $4,000 for adoption costs under its adoption leave policy; the company gives new fathers the same amount of paid time for paternity leave.

A larger question: what is the real reason for granting maternity leave?

Other view point is give new fathers more paid leave too.

Some mothers are outraged, viewing Cubist’s actions as discriminatory against women who are disabled and cannot medically bear their own children.

Law on surrogacy in India

Commercial surrogacy is legal in India. Surrogacy in India is unregulated as they yet don’t have legislation controlling surrogacy although the Indian Council of Medical Research (ICMR) has set “national guidelines” to regulate surrogacy, these are simplyguidelines. All that this means is that surrogate mothers need to sign a “contract” with the childless couple. There are no stipulations as to what will happen if this “contract’ is violated.

It was in Manji’s case in 2002 that Supreme Court of India held that commercial surrogacy was legal in India.

In Jan Balaz v Union of India, the Gujarat High Court conferred Indian citizenship on two twin babies fathered through compensated surrogacy by a German national in Anand district.

Indian Council for Medical Research guidelines

• 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.

A surrogacy contract should necessarily take care of life insurance cover for surrogate mother. Some of the companies’ offer (Surrogacy is costly option. Here the Life Insurance policy shall be on the life of surrogate mother. Health Insurance policy shall take care of medical expenses. Insurance is usually meant for unexpected risk, and pregnancy is not regarded as such a risk. The health insurance policy is not Pregnancy health Insurance. Some companies provide Post Delivery Complications e.g. Star Health Insurance

(f). Post Delivery Complications Accruals within Hospitalization Limits

However there are conditions, which should be studied carefully.)

As surrogacy is picking up and so are the issues attached to it. One fine day Competent and experienced lawyers  may rake up the issues raised by Ms. Parul and we may have some trendsetting judgments setting the precedence in India.

Ms. Parul,

The lady may remain amiable in office. The issue while is imp. for the mother who has been blessed with baby thru surrogacy and would long to bond with the child and thus may like to have paid leave like maternity leave.

The situation may be difficult for the employer/HR and under the prevailing rules; maternity leave is not possible. The adoption leave seems to be one of the possibility. Employer invoking its powers can sanction some kind of extra ordinary leave. In times to come lawmakers might take liberal and enlightened view and grant relief to parents who are blessed with child thru surrogacy.

Heartfelt thanks to learned Mr. Makkad, Mr. Vasudevan, Mr. Sudhir Kumar,Mr. Paranjape for their valuable advice and enriching the forum.

thanks everyone for your valuable advice. I and my husband are going for surrogacy. Our surrogate is a housewife so she is not worried about maternity leave.

However , since i am working and post delivery , i need to take care of my new born child and bond with him/her , i wanted some paid leaves. In addition since this procedure is so medically stimulated , i want to take good care of my child so that he does not recv any side effects , at the same time since this treatment is so expensive , i am unable to think of taking leaves without pay... I was hoping to get maternity leave , may be a month less then women who undergo pregnancy themselves , but what i understand from your advices , it is not possible in india... 

Sad  :(