The provision of maternity protection is essential in furthering the idea of equal opportunity in employment. The idea of providing for such benefits is to prevent childbirth from working as a deterrent to women in their employment, and to ensure that women do not have to pick between their “reproductive and productive roles.” As provided under the ILO Maternity Protection Convention and Recommendations of 2000, maternity leave is a mother’s right to a period of leave for rest and recuperation from childbirth and its consequences thereof.
A mother is “a woman who has given birth to, provided the egg for, or legally adopted a child. The term is sometimes interpreted as including a pregnant woman who has not yet given birth.”[i] This definition is reflective of the technological advancements and recognizes a woman who provides an egg as a mother. Assisted Reproductive Technology (ART), which includes surrogacy, is one such advancement. Surrogacy is one such reproductive option that has gained popularity among those seeking alternative methods of conception.
The increasing rate of infertility over the world has led to the advancement of assisted reproductive techniques (ART). Surrogacy comes as a blessing in cases where an infertile woman or couple is not able to reproduce.
Surrogacy means a practice whereby one woman bears and gives birth to a child for an intending couple with the intention of handing over such child to the intending couple after the birth. The term `surrogate mother’ or `surrogate’ is usually applied to the woman who carries and delivers a child on behalf of another couple.
While every woman is entitled to a paid maternity leave of 26 weeks, the position of law is not clear in case of a child born through surrogacy. While it is clear that acommissioning mother (biological mother who uses her egg to create an embryo implanted in any other woman) is entitled to maternity leave, the position with regards to a surrogate mother is not clear. This article intends to explore this grey area and suggest changes required to be made in the law.
Meaning of Maternity
The Delhi High Court’s judgment in Rama Pandey v. Union of India, delivered in July 2015, categorically rejects the argument that maternity benefits were meant only to protect the health and safety of the woman. Guidelines were framed in this case for the grant of maternity benefits to a commissioning mother.
Justice Shakdher held that a commissioning mother cannot be denied maternity leave only because she is not the one who conceives the child. His reasoning was based on the interpretation of the word “maternity”. He referred to the “updating principle” which is used by the Courts to update the construction of a statute bearing in mind the current norms, changes in social attitudes or, even advancement in science and technology. He referred to various Indian and international cases where the updating principle was applied on account of the development of medical science and change in social conditions.
With the advent of New Reproductive Technologies (NRT) or what is also known as Assisted Reproductive Technologies (ART), there has been a veritable explosion of possibilities for achieving and bringing to term a pregnancy. In such a situation, to confine the term “maternity” only to that situation, where the female employee herself carries a child would be turning a blind eye to the advancement in science. Maternity is established vis-a-vis the commissioning mother, once the child is conceived, albeit in a womb, other than that of the commissioning mother. To curtail the commissioning mother’s entitlement to leave, on the ground that she has not conceived the child, would work, both to her detriment, as well as, that of the child.
He laid down the following guidelines in case maternity leave is sought by a commissioning mother:-
- The competent authority, based on the material placed before it, would decide on the timing and the period for which maternity leave ought to be granted to a commissioning mother who adopts the surrogacy route.
- The competent authority’s scrutiny would be keener and more detailed, where leave is sought by the commissioning mother at the pre-natal stage, as against post-natal stage. If conditions do not commend that leave be given at the pre-natal stage, then the same can be declined.
- In so far as post-natal stage is concerned, ordinarily, leave cannot be declined as, under most surrogacy arrangements, once the child is born, its custody is immediately handed over to the commissioning parents. The commissioning mother, post the birth of the child, would, in all probability, have to play a very crucial role in rearing the child.
- In a situation where both the commissioning mother and the surrogate mother are employees, who are otherwise eligible for leave (one on the ground that she is a commissioning mother and the other on the ground that she is the pregnant woman), a suitable adjustment would be made by the competent authority.
Maternity Benefit (Amendment) Act, 2017
The recent Maternity Benefits (Amendment) Act, 2017 amended the Maternity Benefits Act, 1961 and brought about certain necessary changes. The amendment codified the judicial position that commissioning mothers are eligible to take maternity leave. It provides the commissioning mothers with maternity benefit for a period of twelve weeks from the date the child is handed over to her.
The Amendment Act has not changed the eligibility criteria for maternity benefits. To be eligible for maternity benefit, a woman must have been working as an employee in an establishment for a period of at least 80 days within the past 12 months. Payment during the leave period is based on the average daily wage for the period of actual absence.
Originally, the Maternity Benefit Act offered maternity benefit for 12 weeks, out of which up to six weeks could be claimed before delivery. The 2017 Amendment extended the period to 26 weeks. Out of the 26 weeks, up to eight weeks can be claimed before delivery. However, if the woman has more than two surviving children, the maternity benefit can be claimed only for 12 weeks.
While providing the commissioning mothers with maternity benefits, on the one hand, the Act remains silent about the availability of maternity benefits to a surrogate mother. Although the benefits under the Act could be extended to a surrogate mother, the position about the applicability of the same is still not clear. The number of weeks available to a woman as maternity leave is dependent upon the number of surviving children of the woman. Since the custody of the child is immediately handed over to the commissioning parents upon birth, a surrogate mother does not take care of the child and requires a leave only for her own recovery, there is no clarity regarding the number of weeks available to her as maternity leave.
The Maternity Benefits (Amendment) Act, 2017 seems to be a missed opportunity that could have been utilised by the legislature to fill this vacuum in law. A surrogate mother would be required to take leave from her work and with the proposed ban on commercial surrogacy, the commissioning parents cannot compensate her except for the medical procedures. This, combined with the lack of clarity about the availability of maternity benefits to surrogate mothers would dissuade women from acting as surrogates.
[i]Mother, Black’s Law Dictionary (8thed. 2004).
Kriti, 5th Year student at National Law Institute University, Bhopal
Picture Credits: Vinsfertility