Supriya Jena [ Petitioner(s)] Vs. State of Odisha & Ors. [ Opposite Party (s)]
W.P.(C) No.30616 of 2020
(CORAM: DR. JUSTICE S.K. PANIGRAHI)
Facts: The Petitioner through this Writ Petition has challenged the Finance Department letter No.38444/F dated 15.11.2019 and G.A & P.G. Department letter No.15803/Gen dated 06.07.2020.
Issue: Whether women attaining motherhood through surrogacy are entitled to ‘maternity leave’?
Arguments on behalf of counsel for petitioner:
It is submitted by the petitioner that since considerable time after marriage, the petitioner failed to conceive a child, so she opted for surrogate motherhood and accordingly entered into a Gestational Surrogacy Agreement along with her husband as “Commissioning Parents” with one Mrs. Maya Gupta of Mumbai as “Surrogated Mother” on 30.01.2018. It is submitted by the Petitioner that the surrogate mother conceived the child who finally took birth on dated 25.10.2018. It is submitted by the petitioner that since there are no female member available in the family to look after the new born baby and after much prolonged waiting the petitioner could became a mother through surrogacy, so the petitioner applied for maternity leave on 20.10.2018 which was granted from dated 25.10.2018 to 22.04.2019.
Arguments on behalf of counsel for opposite party:
Learned counsel for the Opposite Parties earnestly made the following submissions in support of his contentions. It is submitted that the Petitioner had joined as Joint Director (Accounts), GAA, Odisha, Bhubaneswar on 30.6.2017 (FN) as per the Finance Department Notification No. 19805/F, Dated 29.6.2017. He contended that the Petitioner has applied for maternity leave on 20.10.2018 which was granted from 25.10.2018 to 22.4.2019. Subsequently, in continuation of the maternity leave, she applied for Earned leave from 23.4.2019 to 9.9.2019. After availing leave, she joined in her duty on 10.9.2019. It is further submitted that the Opp. Party No.3 granted maternity leave in favour of the petitioner for a period of 180 days.
Held: The court allowed the present petition and held that, “Recognizing and supporting surrogacy as a legitimate means of becoming a parent aligns with India’s progressive stance on reproductive rights and gender equality. Providing maternity leave for these mothers ensures that they have the necessary time to create a stable and loving environment for their child, promoting the well-being of both the mother and the child. It is well settled law that the rules and regulations in force should be interpreted in light of advancements in medical science and changes in societal conditions. The Supreme Court in the matter of Anuj Gang v. Hotel Association of India has held that changed social psyche and expectations are important to upkeep the law. The maternity benefit provisions should, therefore, be interpreted accordingly.”
