Mothers Through Surrogacy Cannot Be Denied Maternity Leave: Rajasthan High Court Quashes State's Refusal

According to her counsel, the petitioner and her husband had no child from their marriage and chose surrogacy; twins were born on 31.01.2020 (para 7). She applied for 180 days' maternity leave from 01.02.2020 to care for them, but by an order dated 23.06.2020 the State refused, stating that the Rajasthan Service Rules, 1951 make no provision for maternity leave to a mother who gets children through surrogacy (paras 5, 7). Her writ petition sought the leave with salary under Rule 103 and no debit to her leave account (para 6). The State replied that Rule 103 has no provision for a surrogate mother (para 8).

Rule 103 grants maternity leave to a female Government servant but does not define the term (paras 10-11). A maternity provision is beneficial and must be construed beneficially, as the Supreme Court held in B. Shah (para 14). If maternity means motherhood, a natural and biological mother cannot be distinguished from a mother who begets a child through surrogacy; the leave protects the dignity of motherhood and builds the bond between mother and child (paras 15-17). Surrogacy is now recognised by the Surrogacy (Regulation) Act, 2021, and the commissioning mother remains the biological mother, so such a mother cannot be denied maternity leave after the child's birth (paras 18-20). The Court followed High Court rulings under Rule 43 of the Central Civil Services (Leave) Rules, which it treated as in pari materia with Rule 103: Devshree Bandhey, Rama Pandey, Hema Vijay Menon, Pooja Jignesh Doshi, Sushma Devi and P. Geetha (paras 20-28). If an adoptive mother can be given maternity leave, refusing it to a mother through surrogacy is wholly improper (para 27). Since Article 21 includes the right of motherhood and the child's right to love and care, the refusal was unjustified (para 29).