The Orissa High Court (the Court) in Supriya Jena v State Of Odisha & Ors has ruled that female employees who have become mothers through surrogacy are entitled to equal rights to maternity leave and other benefits, aligning them with those provided to natural and adoptive mothers. This decision was made in response to a petition filed by Supriya Jena, an OFS officer who was denied maternity leave after becoming a mother through surrogacy. The court noted in the case that denying maternity leave to a mother who has a child through surrogacy (commissioning mothers), while granting maternity leave to adoptive mothers, would be unjust. It ruled in favour of granting maternity leave to such employees to ensure equality among all new mothers, regardless of how they become parents, emphasizing the importance of treating surrogate mothers the same as natural or adoptive mothers in terms of maternity leave and benefits. 

Judicial Interpretations

In an application under Article 226 of the Indian Constitution regarding the maternity benefits to a mother who had begotten her child through the process of surrogacy, the Orissa High Court noted that if the government could provide maternity leave to adoptive mothers, it would be unjust to deny maternity leave to commissioning mothers. The Court asserted that a woman may become a mother not solely through childbirth but also by adopting a child, with Assisted Reproductive Technology (ART) and surrogacy serving as viable avenues for individuals or couples to have children. It emphasized that the provision regarding the award of maternity benefits is a beneficial one, aimed at achieving social justice, and thus must be interpreted in a manner that favours this objective. The Court criticized the state government’s regulations that exclude commissioning mothers from receiving maternity benefits, deeming them not only arbitrary but also discriminatory.

Furthermore, the Court mandated that maternity leave should be granted to female employees who become mothers through surrogacy, thereby ensuring equitable treatment and support for all new mothers, regardless of their path to parenthood. The Court directed the government to implement this provision by sanctioning 180 days of maternity leave to the petitioner within a three-month timeframe and to amend relevant regulations to ensure that children born via surrogacy are treated similarly to those born naturally, thereby granting the commissioning mother all applicable benefits [8] – [10].

The Court referenced the ruling of the Rajasthan High Court in the Chanda Keswani case, where it was similarly determined that maternity leave should be granted to commissioning mothers, as it was reasoned that maternity leave must be provided to employees who become mothers through surrogacy to guarantee equal treatment and support for all new mothers, regardless of their path to parenthood.

The Supreme Court, in the case of Dr. Kavita Yadav, had also determined that maternity leave is a constitutional right protected by Article 21, which ensures the right to life and personal liberty, and once the individual has met the eligibility criteria, she becomes entitled to full benefits even if those benefits extend beyond her employment’s contractual period.

Governing Legislation

The Court mandated the amendment of Rule 194 of the Odisha Service Code to ensure alignment with the central legislation of the Maternity Benefit (Amendment) Act, 2017 which grants a definitive 12 weeks of maternity leave to mothers adopting a child under three months of age and to all commissioning mothers, irrespective of the genetic contribution. Furthermore, women will then have the right to opt for a “work from home” arrangement following their maternity leave, contingent upon mutual agreement with their employer.

Way Forward

It is thus imperative that the provisions concerning maternity benefits are structured to encourage and support women’s participation in the workforce. The international conventions to which India is a signatory, such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), mandate equal treatment and non-discrimination in matters related to employment and maternity. Hence, policymakers, employers, and society must collaborate actively to create an environment where parental leave is viewed not as an obligation but as a fundamental right and a cornerstone of work-life balance.