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In a significant order, the Madras
High Court on March 5, 2013 has held that a woman who had a child
through surrogacy is entitled for maternity leave.
The ruling was given by Justice K Chandru while allowing a
petition by a woman employee of the Chennai Port Trust (CPT)
seeking to quash an order of the management rejecting her plea for
maternity leave in 2011.
"This court does not find anything immoral and unethical about the
petitioner having obtained a child through surrogate arrangement,"
the judge said in his order.
The Court directed the CPT to grant leave to her in terms of Rule
3A of the Madras Port Trust (Leave) Regulations, 1987 (applicable
for those going in for adoption) recognizing the child obtained
through surrogate procedure and to include the name of the newly
born in the insurance scheme.
Justice Chandru noted the purpose of the said rule was for proper
bonding between the child and parents.
The woman, an assistant superintendent in the Chennai Port Trust,
preferred to have a child through a surrogate mother, with the
consent of her husband, after her 20-year-old son was killed in a
road accident in 2009.
She applied for maternity leave to look after the new born after
the surrogate mother gave birth to a girl baby on February 8,
2011. She also applied to include the child under the family
medical insurance scheme.
Her application was rejected on the ground that there was no
provision in the rules for granting such leave to those who have
child through surrogacy.
After hearing arguments from both sides, Justice Chandru said,
"Even in the case of adoption, the adoptive mother does not give
birth to the child, but yet the necessity of bonding of the mother
with the adoptive child has been recognized by the Central
government, therefore, the petitioner is entitled for leave in
terms of Rule 3A," he said.
Global Surrogate Mothers Advancing Rights Trust (G-Smart) a NGO, www.surrogatemotherstrust.org, based in Chennai welcomed the
Madras High Court Judgment on Women with babies through surrogacy
are entitled to maternity leave.
Reacting to the judgment, A.J.Hariharan, Chairperson G-Smart said
this kind of judgments will help and enable the environment on
protecting rights of surrogates.
He added; ‘since ‘Assisted Reproductive Technology’ (ART)
procedures are not regularized, the judgment may throw significant
light on critical issues around surrogacy’.
G-Smart demanded from the State and Central government to extend
all kind of support to surrogate mothers and make sure that
surrogate mother will get insurance for Rs 10 lakh and 10 years of
free medical support for Gynecological problems after surrogacy.
Central government should table the ‘Assisted Reproductive
Technology, Regulation Bill 2010’ immediately in the Parliament
Mr.A.J.Hariharan said.
Surrogacy in India is estimated to be a $445 million business with
the country becoming a leading service provider in such cases.
This is because of the low cost of treatment and the ready
availability of women willing to rent their wombs. In comparison
to USA where surrogacy cost is about $70,000, it costs only
$12,000 in India.
The issue shot into limelight in 2008 when a surrogate mother gave
birth to a girl ‘Manji’ in Gujarat. The baby's parents, Ikufumi,
45, and his wife Yuki, 41, came to India and hired the service of
a surrogate mother from Anand town in Gujarat.
However, before the baby was born the couple separated and
divorced. Manji's father claimed the custody of the child but laws
in India do not permit this and the issue got entangled in legal
battle.
The Supreme Court finally granted Manji's custody to her
74-year-old grandmother but this was contested by an NGO named ‘Satya.’
The NGO claimed that Manji was an abandoned baby.
This made the Supreme Court to ask the central government to
clarify its stand on issues related to surrogacy, particularly
parentage and citizenship.
Even though still there is not much clarity on Surrogacy issue
Manj case kicked of a debate in India. The government took
cognizance of the matter and went on to draft a bill called
‘Assisted Reproductive Technology, Regulation Bill 2010.’
The opinion seems to be building for having relevant laws
regarding this issue that should not only protect the surrogate
mothers, but also check the foreigners who come to India looking
for renting wombs.
The, British and American laws forbid surrogate mothers to charge
a childless couple, whereas in India there is no such law. It
raises the question whether surrogate mothers should be allowed to
charge a fee.
All these issues and many more are suppose to be addressed through
‘Assisted Reproductive Technology, Regulation Bill 2010.’ However,
when this bill will be passed by the Parliament is only a matter
of guess.
Syed Ali Mujtaba is a journalist based in Chennai. He can be
contacted at syedalimujtaba@yahoo.com
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