February 8, 2018

The commissioning mother would be entitled to apply for maternity leave under sub rule (1) of Rule 43 of CCS (Leave) Rules.

The Department of Personnel and Training (DoPT) has instructed all central ministries & departments to implement a 2015 order of the Delhi HC for granting maternity leave to women employees who choose to have a child by commissioning a surrogacy. Such leave would include both the pre-natal & postnatal period.

The Delhi High Court had in July 2015 pronounced a judgement on plea by a Kendriya Vidyalaya teacher who had a pair of twins through a surrogate mother but was denied the 180-day maternity leave on the ground that she wasn't the biological mother.

Reasoning that the commissioning mother is legal mother of the child, the High Court laid down guidelines & filled a vacuum in law since the Centre or state govts have no maternity benefit policy for women employees who opt to have children through a surrogate pregnancy.

As instructed by the High Court, the commissioning mother would be entitled to apply for maternity leave under sub rule (1) of Rule 43 of CCS (Leave) Rules.

The competent authority would decide the timing & period for which the maternity leave is to be granted to the commissioning mother, based on material placed before it.

Under Rule 43(1), female govt. employees are entitled to maternity leave up to 180 days. While the scrutiny would be keener & detailed when leave is sought by the commissioning mother in the pre-natal stage & a reasoned order would be passed were the leave to be declined, the competent authority would ordinarily grant leave sought at the post-natal stage, except where there're substantial reasons for declining the request.

A DoPT officer told media that until the CCS(Leave) Rules are amended to lay down a clear & uniform policy based on the Delhi High Court order, the central ministries & departments would've to implement the order in letter & spirit while processing applications for maternity leave from commissioning mothers opting for the surrogacy route.

“All ministries/departments are advised to give wide publicity of its (Delhi HC order’s) contents to the concerned officers,” the DoPT said in an office memorandum dated 29th January 2018.

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