Right to child care leave for the women attaining motherhood through Surrogacy in India- K.Kalaiselvi vs Chennai Port Trust [1]and P.Geetha vs The Kerala Livestock Development [2] –

Pub. Info- “Right to child care leave for the women attaining motherhood through surrogacy in India” , Sonali Kusum, AIR’s Labour and industrial cases journal, Vol .48, Part 5 , May 2015 issue.

Significance:

Until the discovery and practice of ART technology including surrogacy, the legal conceptualization and cognizance of motherhood was confined to merely two broad categories namely the biological and the non biological motherhood . While the former vested with the woman in parturition  established through the act of conception , gestation , child birthing  and such woman is called as natural mother. This form of motherhood is implied  in  the Evidence Act , Maternity Benefit Act. In the latter non biological motherhood women attains motherhood through exchange of custody, guardianship from the natural parents  through adoption as under the Adoption Act. However with surrogacy  there is  a new class of emerging mothers  as intended or commissioning mother who  attain motherhood  using  the medical technology ART involving the service of surrogate mother who undergoes gestation and child birthing in place of the intended mother who is infertile or unfit for gestation , delivery  but in certain cases the intended mother may merely donates eggs or ova establishing biological connection. Thus the intended mother has the shared attributes of both these natural mother through biological connection and adoptive mother  with the intent to raise the child by assuming guardianship custody right over the child. There is a felt need to address the legal recognition of this emerging form of motherhood in the absence of any statutory law on the same at present in India.

This is very meaningfully and precisely summed up by Justice K Chandru “If law can provide child care leave in case of adoptive parents, then it should also apply to parents who obtained a child through a surrogate agreement. The object of such a leave is to take care of the child and develop a good bond between the child and the parents.” [3]

Introduction:

India has formally legalized surrogacy in the year 2008 in the case of Baby Manji vs Union of India[4] where in the supreme court formally legalized commercial surrogacy in India and directed for the formulation of Assisted Reproductive Technologies ( ART ) Bill[5], draft surrogacy law on the same. The ART Bill in its preamble grants right to child, right to family formation to the individuals through the access of ART including for having a surrogate child. The Bill under relevant provisions grants legal parentage to intending couple[6] as well as registration of names of intending couple in the birth certificate but at the same time there are certain gaps and a host of unaddressed issues related to the same. Though the Bill vest legal motherhood in the intending mother but the Bill neither provides safeguards for the maternity attained via use of such technology nor any such child care leave for the newly born surrogate child as granted to the woman having child in normal biological course and women adopting the child. In the absence of any statutory binding law on surrogacy coupled with omission in ART Bill to address the same. In addition to the statues, the case laws on this point has limitations. Though two landmark cases have been previously adjudicated  on the issue of motherhood determination but the court did not address the legal rights or entitlements associated with the intending mother.

However in the recent past there has been two trailblazer cases namely K.Kalaiselvi vs Chennai Port Trust and P.Geetha vs The Kerala Livestock Development which have raised the issue of grant of maternity leave or child care leave for the woman  using ART including surrogacy.  This case brings forth unprecedented issues which are first of its kind to be addressed by the court.

Facts of the case :

In K.Kalaiselvi vs Chennai Port Trust[7] at the Madras HC Case, the petitioner is an Assistant Superintendent in the Traffic department of the Chennai Port Trust who had a child through surrogacy. The petitioner requested for sanction of maternity leave to the Chennai Port Trust authority and the Ministry of Shipping and Surface Transport to look after the newly born girl child. But at both the forums she was denied the same. The petitioner seeks before the Madras HC for sanction of maternity leave to look after the newly born girl child and also sought for the issue for a direction to the Chennai Port Trust to grant leave to the petitioner on equal footing as that of the adoptive parents or the adoptive mother who is conferred with similar right to child care leave under Rule 3-A of the Madras Port Trust (Leave) Regulations, 1987. Similarly in the subsequent case,  P.Geetha vs The Kerala Livestock Development[8]  before Kerala HC, the petitioner who is an executive in the Kerala Livestock Development Board, commissions surrogacy being both the intending a well as the genetic mother  sought maternity leave from the respondent Kerala Livestock Development Board but the Kerala Livestock Development Board Limited Staff Rules & Regulations, 1993 do not permit maternity leave to the employees on ground other than ‘normal circumstances’ implying pregnancy in normal course as envisaged under the staff rules and therefore the petitioner is denied the leave, under these circumstances, the petitioner has filed the present writ petition for seeking child care leave to look after her surrogate baby.  It is significant to note that in this case the petitioner claiming the leave adduces pertinent argument stating that the there is no distinction between maternity by way of natural process and by way of ART as for all intents and purposes the intending parents are the natural or the biological parents with same set of rights and obligations and therefore denying the petitioner the maternity benefit is an instance of invidious discrimination affecting her fundamental right as a woman.   

Issues for determination:

In both these cases the common issue for the determination before the court was whether a woman employee is entitled to avail leave as maternity or child care  in case where she gets the child through surrogacy arrangement? Or whether these women availing surrogacy be granted the same benefit of child care which is provided to the adopted mothers.

Findings of the Court:

In this case the court had the occasion to dwell on a range of significant issues namely as concept of motherhood obtained via medical technology including surrogacy, the legal safeguard for maternity right, the right of child to health care, besides incorporation of international convention  laws into municipal law , beneficial interpretation of laws. These are briefly discussed as below.

The court revisits the notion of legal status of maternity or legal motherhood to include within its ambit motherhood attained through the use of advanced reproductive technology which may also have biological relation with the child. This is in keeping with the relevant provision of UDHR[9], UNCEDAW[10], Beijing Declaration[11] appropriately identified by the court, the provision states that maternity is a social function coupled with and recognition of the responsibility for upbringing and development of their children and imposes duty on the state government to allow maternity leave as social benefits and prevent discrimination against women on the grounds of maternity[12] and that Motherhood and childhood are entitled to special care and assistance and social protection for all children whether born in or out of wedlock under Universal Declaration of Human Rights[13] and also the Beijing Declaration and Platform for Action Fourth World Conference on Women, Articles 17 and 33 namely providing for the right of all women to control all aspects of their health, in particular their own fertility as is basic to their empowerment respectively. Accordingly the Kerala HC after held that women may attain motherhood through with advanced reproduction techniques ART and these women may be treated as same as natural biological mother and she should be entitled to same set of rights and obligations in the non-denial or non-recognition of such rights status of women would amount to discrimination against such women.

Following the legal recognition of maternity the court has also acknowledged the legal significance of mother child relation. The court redefines the concept of maternity right by taking from the international Convention No.183 of International Labour Organisation[14], or the Maternity Protection Convention (Revised), 1952, the General Conference of the ILO issued guidelines in its 88th Session on 30th May, 2000 which establishes that maternity has to be viewed holistically to include not only pregnancy but also child birth, rearing , bonding between mother and child.

The court upholds the right to health , survival , development and particularly formative care of the child. The court in consonance with the mandate of UNCRC[15] best interest of child and infant health care. The UNCRC under relevant provision states the right of the child to the enjoyment of the highest attainable standard of health[16] with special emphasis on the development of primary health care for children[17].  In furtherance of protecting the interest of child the UNCRC imposes primary responsibility on the parents for the upbringing and development of the child[18] coupled with duty on the states Parties to take all appropriate measures to ensure that children of working parents have the right to benefit from child-care services[19]  The UNCRC secures every child right to life, survival , development of child [20]and  the convention expressly states that in all actions concerning children the  best interests of the child shall be a primary consideration[21]. The same mandate has been imbibed in the national constitution under directive principles of state policy which states that children are to be assured of facilities to develop in a healthy manner[22] and also in the national statutory laws namely the Commissions for Protection of Child Right Act [23] which reinforcing the best interest of child. In these context the court considers the need for surrogate’s child care and the guarantee of leave for the same.

The court after dwelling upon the protective safeguards for the intending mother and the child. The court also makes an assessment of the existing statutory law to explore for any scope of inclusion of child care leave, the court makes a perusal of  legislation like Maternity Benefit Act[24]and opines that the legislation is mother centric based on the proof of the act of parturition, gestation delivery. The grant of maternity benefit is made conditional upon the adducing necessary medical proof of pregnancy , confinement and is granted after calculating , counting of days from the fact of the actual day of her delivery including the preceding of the date of her delivery, during and any period immediately post the date of delivery for the grant of maternity benefit to be made to the mother[25]. This is established in an Irish case M.R. and D.R. & ors -v- An t-Ard-Chláraitheoir & ors[26] before Irish Supreme Court , it was held that “the individual at parturition is assumed to be the mother of the child as indicated by the latin maxim mater semper certa est meaning motherhood is certain and a fact ascertained by the act of parturition therefore proved.  The latter maxim is also incorporated and given effect in our Indian legislation as mentioned Maternity Benefit Act, Indian evidence Act which reinstates motherhood as a fact.

The court lays down the rule of inclusive, beneficial interpretation of reading into or by permitting or by inclusion of progressive modern developments within the scope of the existing laws, legislation. The court reiterates the landmark cases which apply the rule of inclusive , beneficial interpretation of laws in Laxmi Video Theatres v. State of Haryana[27],  the Supreme court read within the meaning of the term Cinematograph the progressive notions Video cassette recorder under Cinematograph Act after taking note of the subsequent scientific development in the concerned field which was not available at the time of the former legislation. Similarly in the Senior Electric Inspector v. Laxmi Naryana Chopra and Ors[28]  the Supreme Court included within the term telegraph line the subsequent technological development of telegraph wireless in the Indian Electricity Act, the court referred to All India Services (Leave) Rules, 1955, which recognized paternity leave to be granted under these rules along with maternity rules, though there was no specific mention of paternity leave  in the same but the court  by interpretation extended the meaning scope of same. This interpretation allows the growth of law in keeping with the changes in society and prevents the laws from becoming obsolete, regressive and expands the scope of law , judicial interpretation. The court follows the rule of application of international treaty law finding upon the legal vacuum in national arena when the municipal law is silent in certain regard as practiced in some of the celebrated case as Vishaka and others v. State of Rajasthan and others[29] and similarly refers to the international cases Lotus Case, 1927 (France v. Turkey)[30]where the relevant provisions of UNCEDAW, international treaty law were given direct effect respectively. In tandem the court referred to relevant Indian constitutional provisions namely Article 51(c) obligation to respect the international covenants, Article 253 Parliament’s power to give effect to International conventions which enable incorporation and giving effect of international law. The court refers to the Selvi v. State of Karnataka[31]which stresses on the application of international convention law into local law in India after  dwelling on the value of the Convention which has significant persuasive value.

Court Held & Observations :

In both these cases the court granted affirmatively the right to child care leave for the petitioner as requested by beneficial interpretation. In this case the court for the first time lays down the specific right namely right to child care leave for the intending mother or the women attaining maternity through surrogacy. The Madras High Court has extended the right for child care leave under Rule 3-A of the Madras Port Trust (Leave) Regulations which is granted to adoptive parents 1987 to include within this intending mother or a person who obtain child through surrogate arrangement following the appreciation of international human right conventions and beneficial interoperation of laws. Thus the court equated the status of a woman commissioning surrogacy to have a child to the status of a female obtaining of a child through surrogacy to adoption. The court granted this child care leave for the purpose of developing a bondage with the newly born child and in keeping with cardinal rule of UNCRC best interest of child, right of child to development, survival. The Kerala High court reiterates the judgment of Madras HC and similarly upheld the right of women to child care leave for the intending mother. The Court declares that there ought not to be any discrimination against a woman in grant of maternity benefits on the ground that she has obtained the baby through surrogacy. The court accepted the dichotomy of motherhood leading to technologically progressive means of attaining motherhood and accorded legal recognition to same. The court gave legal recognition to maternity leave as including mother child bonding leave, child care leave and sought to conform to the best interest of child principle as enshrined in UNCRC as well as under national laws.

Thus the case has an epoch making precedent value for the through discussion and appreciation of international human right conventions progressive rules of interpretations setting standards for legal developments in this field in near future. It may be posited that there is need to include child care leave in the ART Bill for the same in keeping this judicial dictum. The existing laws may be revised to afford legal cognizance to this form of motherhood as well as the child  parent in relationship. This technology is here to stay throwing up many incidental  issues which merits consideration and resolve in near future.

References-

[1] W.P.No.8188 of 2012

[2] WP(C).No. 20680 of 2014 (H),18 June, 2014 

[3] TNN ,Should Mother of Surrogate Child be Entitled to Maternity Leave? Idiva , Mar 6th 2013http://idiva.com/news-work-life/should-mother-of-surrogate-child-be-entitled-to-maternity-leave/20006

[4] (2008) 13 S.C.C. 518

[5] The Assisted Reproductive Technologies (Regulation) Bill – 2010 (Draft), Ministry of Health & Family Welfare Govt. Of India, New Delhi & Indian Council of Medical Research New Delhi, available at http://icmr.nic.in/guide/ART%20REGULATION%20Draft%20Bill1.pdf (Last visited Feb. 15, 2014) [hereinafter ART Bill 2010.

[6] Ibid, § 34 (10) ART Bill 2010.

[7]Supra Note at 2.

[8] Supra Note at 3.

[9] Universal Declaration of Human Rights, 10 December 1948, 217 A (III), available at http://www.refworld.org/docid/3ae6b3712c.html (Last visited 16 February 2015).

[10] UNCEDAW, UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, United Nations, Treaty Series, vol. 1249, p. 13, available at http://www.refworld.org/docid/3ae6b3970.html (Last visited accessed 2 February 2015).

[11] Beijing Declaration and Platform of Action, adopted at the Fourth World Conference on Women , United Nations, Beijing Declaration and Platform of Action, adopted at the Fourth World Conference on Women, 27 October 1995, available at http://www.refworld.org/docid/3dde04324.html (Last visited  16 February 2015).

[12] Article 5(b), Article 11 2. (a) (b) UNCEDAW, UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, United Nations, Treaty Series, vol. 1249, p. 13, available at http://www.refworld.org/docid/3ae6b3970.html (Last visited 2 February 2015).

[13] Article 25(2), UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), available at http://www.refworld.org/docid/3ae6b3712c.html (Last visited 16 February 2015).

[14] International Labour Organization Convention No. 183 (2000) concerning the revision of the Maternity Protection Convention, on 31 August 2010, and Convention No. 150 (1978) concerning Labour Administration: Role, Functions and Organisation, and the Maritime Labour Convention (2006), on 15 March 2013.

[15] UN General Assembly, Convention on the Rights of the Child, United Nations, Treaty Series, vol. 1577, p. 3,  20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3, available at http://www.refworld.org/docid/3ae6b38f0.html (Last visited accessed 16 February 2015).

[16] Supra note at  14, Art. 24 (1).

[17] Ibid, Art. 24 (2),(b).

[18] Ibid,  Art. 18 (1) (2)

[19] Ibid, Art. 18 (3)

[20] Ibid, Article 6 (1) (2).

[21] Ibid, Article 3.

[22] Shukla V.N., Constitution of India, 201, (M.P.Singh Ed., Lucknow: Eastern Book Company, vol.2, 1999), Article 39.

[23] The Commissions For Protection Of Child Right Act 2005,  No. 4 of 2006,  (20th January, 2006,)

[24] Maternity Benefit Act 1961 ,  NO. 53 OF 1961 1 [12th December, 1961.

[25]Ibid, § 5 Maternity Benefit Act 1961.

[26] [2014] IESC 60 (7 November 2014).

[27] (1993) 3 SCC 715.

[28] [1962] 3 SCR 146.

[29] (1997) 6 SCC 241

[30] P.C.I.J. (SER. A) NO. 10 (1927).

[31] Criminal Appeal No. 1267 of 2004.

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s