Orissa High Court says surrogate mothers also entitled to maternity leave

In a landmark ruling, the Orissa High Court directed the state government to grant maternity leave to a surrogate mother, saying that leave privileges shouldn't depend on how a person became a mother.

A single-judge bench ruled in favour of a Orissa Finance Service (OFS) officer, granting her 180 days maternity leave after she became a parent through surrogacy.

"Maternity leave should be granted to employees who become mothers through surrogacy to ensure treatment and support for all new mothers, irrespective of how they become parents," Justice S K Panigrahi ruled.


OFS officer Supriya Jena filed a petition in 2020 after the Odisha government denied her maternity leave, with the court finally ruling in her favour on June 25, telling the state government that if maternity leave is applicable to an adoptive mother it should be applicable to a surrogate one.

"Additionally, the initial period after the birth of a child is crucial for the mother's involvement in caregiving and nurturing, which is pivotal for the child's development. Accordingly, the right to life under Article 21 of the Constitution includes the right to motherhood and also, the right of every child to full development," Justice Panigrahi said.

The bench, in its ruling, also directed the state government to incorporate these aspects in the relevant rules to treat mothers equally.

"It is directed to the concerned department of the state to incorporate this aspect in the relevant provisions of the rules to treat a child born out of surrogacy in the similar manner as a child born out of the natural process and provide the commissioning mother with all the benefits provided thereto," the judge said.

Justice Panigrahi pointed out that providing maternity leave to surrogate mothers ensures they have the necessary time to create a stable and loving environment for their children.

"Additionally, international conventions to which India is a signatory, such as the Convention on the Elimination of All Forms of Discrimination Against Women, mandate equal treatment and non-discrimination in matters related to employment and maternity," he added.