The Mother of All Complex Cases

Kerala HC will soon decide if a woman who has a child through surrogacy is entitled to maternity benefits

Who is eligible for maternity benefits? A mother. But then who is a mother? That should have been a clear enough answer but in an age of surrogate, foster, biological and commissioning mothers, it can get complicated. The Kerala High Court is now having to decide whether a woman who got her child through surrogacy is entitled to maternity benefits.

P Geetha, who works as a deputy general manager with the Kerala Livestock Development Board, is the mother in question. She has filed a writ petition in the High Court saying that maternity benefits are being denied to her. After trying 20 years to have a baby through In Vitro Fertilisation (IVF), she and her husband finally decided on surrogacy. They found a surrogate mother in Hyderabad who delivered on 18 July 2014 and the baby was handed over to them on the same day. The next day, Geetha applied for 180 days of maternity leave to take care of the newborn. Her office, however, refused to acknowledge her motherhood on the grounds that ‘it was not normal’. They told her that she could go on leave without pay. That’s when Geetha went to court.

“This is a violation of fundamental rights provided by the Constitution. Neither the Maternity Benefits Act nor the maternity rules of the department say anything about the standards of ‘normalcy’ of being a mother. Maternity leave is the lawful right of any mother irrespective of the way she conceived,” says advocate Thushara James, who represents Geetha. She argues that the objective of maternity leave is to get time to take care of the newborn child and in that respect, it does not matter if it is a surrogate baby.

The arguments in the case are over and the Kerala High Court is expected to give an order soon. There is no precedent regarding maternity rights of mothers who have babies through surrogacy in India. The verdict will set a new benchmark.

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Shahina KK