The recent progressions on recognition and acceptance of ‘other gender’ have induced discussion on extending rights and laws to the LGBTQ community as the constitution guarantees equality of all genders. One of such discussion is extended pertaining to maternity rights and labor laws concerning same. Maternity benefits are provided to protect dignity of motherhood while she is working, via providing for the full and healthy maintenance of women and her child. Thereby the Maternity Benefits Act 1961 is applicable on establishments (employing more than 10 employees), factories, mines, plantations, shops, establishment and can be extended to other by state government.
Article 39(e) & (f) of the Constitution of India requires state to ensure that the policies are intact to secure the health and strength of workers, men, women and children. That they do not indulge in works unsuitable to their strength or age, bound by economic necessities. Though are provision that talk about he intent of the act promoting natural justice howbeit even in the Maternity Amendment Bill 2017, surrogate mothers and mothers who adopt a child older than three months are not mentioned. Thereby, there exists no provision for these categories of mothers.
Let us understand the problem with a hypothetical. Consider Mr. ABC is a transgender man, who identifies as a woman, working at Insurance India, a public sector entity. He decides to become a parent through surrogacy but is denied maternity leave since he is not a “woman”. He files a writ petition arguing that he is being denied the right to make decisions in his private life and that this denial affects his dignity as a human being. His employer argues that it is bound by the provisions of the Maternity Benefits Act, 1961 and that since Mr. ABC is biologically a male, he cannot be a “mother”.
In the case of Rama Pandey v. Union of India, it was held by the courts that despite a birth via surrogacy the legal mother of the child remain commissioning mother and surrogacy is a lawful agreement recognised in eyes of law as law recognises that for e.g. a surrogate cannot terminate the pregnancy without the permission of commissioning parents. This makes surrogacy legal and recognisable.
In the case of Dr. Pooja Jignesh Doshi v. The State Of Maharashtra, a couple unable to bear a baby resorted to surrogacy out of which a baby girl was born. The petitioner sought maternity leave to take care of the child which was denied on the grounds that policies do not mandate leave for surrogate child. It was held that the case is no longer res-integra; relying upon Rama Pandey v. Union of India and Hema Vijay Menon v. State of Maharashtra; even in the case of surrogacy, the parents who lent the ova and sperm are entitled to maternity and paternity leave therefore the commissioning mother should also have the same rights as that of child’s natural mother. It would be unjustified to differentiate a women on the basis of having a child via surrogacy or not. As there is a lot to learn in the first year of child birth, therefore the paid leaves are justiciable. Therefore it was concluded that a mother is to include commissioning mother and Anu other interpretation would “result in frustrating the object of providing maternity leave to a mother, who has begotten the child”.
In the recent judgement of Sushma Devi v. State of Himachal Pradesh, the petitioner is a contract basis Language Teacher in a Government Senior Secondary School in Kullu. She attained a baby boy via surrogacy and therefore she applied for a maternity leave which was not acted upon therefore the current petition. The courts defined surrogacy as defined via Baby Manji Yamada v. Union of India, a method of reproduction where a woman wilfully agrees on conceiving a child for commissioning parents which she is not going to raise.
She is merely the genetic mother or a carrier of the child to be delivered to the contracting party. In multiple cases this is the only resort left for certain couples. Applying the aforementioned judgements the court reiterated that commissioning mother also has equal right to maternity leave.
In the case at hand the surrogate is also a Transgender man therefore here applies the principle of intersectionality. Section 9 of The Transgender Persons (Protection of Rights) Act, 2019 prohibits discrimination of transgender person in ‘any matter’ relating to employment. Article 15 of constitution and Discrimination (Employment and Occupation) Convention , 1958 (No. 111) also prohibits discrimination on basis of sex and sex is inclusive of transgender.
In the case of Gerald Lynn Bostock v. Clayton County, Georgia, discrimination on the basis of sex is prohibitory and that is inclusive of transgender persons. In India, National Legal Services Authority (NALSA) v. UOI serves as landmark judgement where for the first time the concept of third gender was discussed upon length and it was held that the third gender inclusive of trans persons are entitled to fundamental rights.
Owing the above discussions and the laws being silent on the case at hand, it can be safely concluded that commissioning mothers are eligible for maternity leaves and as all fundamental and provisions require transgender persons to be treated equally, owing to the principles of natural justice, Mr. ABC should get maternity leave as he identifies as a woman and would legally be mother to the child therefore would require time to devote. The courts thus should take active effort to establish strong precedents owing to the spirit of our constitution meanwhile the legislature comes with amendments in existing laws to accommodate all genders.
- Rama Pandey v. Union of India, 2015 SCC OnLine Del 10484
- Dr. Pooja Jignesh Doshi v. The State Of Maharashtra, 2019 SCC Online BOM 1433
- Rama Pandey v. Union of India, 2015 SCC OnLine Del 10484
- Hema Vijay Menon v. State of Maharashtra, 2015 SCC OnLine Bom 6127
- Sushma Devi v. State of Himachal Pradesh, 2021 SCC OnLine HP 416
- Baby Manji Yamada v. Union of India, (2008) 13 SCC 518
- In the case, Baby Manji Yamada v. Union of India, (2008) 13 SCC 518, the court ruled that “to distinguish between a mother who begets a child through surrogacy and a natural mother, who gives birth to a child, would result in insulting womanhood and the intention of a woman to bring up a child begotten through surrogacy. Motherhood never ends on the birth of the child and a commissioning mother cannot be refused paid maternity leave. A woman cannot be discriminated, as far as maternity benefits are concerned, only on the ground that she has obtained the baby through surrogacy. A newly born child cannot be left at the mercy of others as it needs rearing and that is the most crucial period during which the child requires care and attention of his mother. The tremendous amount of learning that takes place in the first year of the baby’s life, the baby learns a lot too. A bond of affection has also to be developed.”
- Gerald Lynn Bostock v. Clayton County, Georgia, 590 US _ (2020)
- National Legal Services Authority (NALSA) v. UOI, AIR 2014 SC 1863
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