PARENTS WHO LENT OVA AND SPERM QUALIFY FOR BOTH MATERNITY AND PATERNITY LEAVE: BOMBAY HIGH COURT.

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The Division Bench of Bombay High Court comprising of Chief Justice Pradeep Nandrajog and Justice NM Jamdar on 14/07/2019 stated that parents of a child born through surrogacy are allowed to avail both maternity and paternity leave. The above judgment was given while hearing a writ petition filed by Dr. Pooja Doshi, wherein she was seeking relief on the rejection of maternity leave by her employer on the ground that leaves rules and policies which govern those rules do not apply to a child born through or out of surrogacy. 

Brief fact of the case:

  • The petitioner had a son, named Saurav and she felt he needed a sibling, but she was unable to conceive on her own.

  • Because of which she opted for surrogacy after contemplating with her husband.

  • Subsequently, a girl child was born through surrogacy on 5th November 2012.

  • However, when the petitioner applied for maternity leave to take care of the child with the expected date of delivery, the same was rejected.

While entertaining the petition the court stated that ‘the issue is no longer res-Integra. In the decision dated 22nd July 2015 in Writ Petition No.3288 of 2015 Dr. Mrs. Hema Vijay Menon vs State of Maharashtra, a Division Bench of this Court relying upon a decision of the Delhi High Court dated 17th July 2015 in the case of Rama Pande vs Union of India, held that even in case of birth by surrogacy the parents who have lent the ova and the sperm would be entitled to avail leave. The mother is entitled to maternity leave and father paternity leave.’

After considering and referring the above-mentioned quote the Court allowed the petition on the same lines and stated that maternity and paternity leave is also applicable in situations where the child is born through surrogacy. 

This decision of the Bombay High Court has no doubt added one more plus point to the surrogacy laws in the country and it has also given a huge amount of relief the parents opting for the procedure as it gives them time to prepare themselves mentally, emotionally. 

Dr.Ms.Pooja Jignesh Doshi Vs

The State of Maharashtra and another