The national department of personnel and training, which frames employment rules for those in government jobs, asserted in a January 9, 2015, memorandum that women employees using surrogate mothers to beget children would not be allowed maternity leave or pay, although they could avail themselves of childcare leave to look after their newborn babies. In a surrogate pregnancy, the biological mother’s fertilised egg is implanted in the womb of another woman, who then undergoes the pregnancy.

On July 17, the Delhi High Court sought to rectify this anomaly in its judgement in a case filed by Rama Pandey, by redefining the term “maternity” to include all types of attaining motherhood, whether by physically giving birth or having a baby through the surrogacy route.

In 2014, Pandey, a government school teacher in Delhi, had applied for maternity and childcare leave to attend to twins she had begotten thorough a surrogate mother. The government denied her permission, asserting that the term “maternity” applied only to those who themselves took part in the act of procreation. The government argued that women are entitled to maternity leave only because they have special physiological and psychological needs.

But Pandey contended that although she did not herself did not carry the children, her presence during the surrogate mother’s pregnancy was critical for the twins’ well-being. Moreover, not just the children, but the woman carrying them needed the care and companionship of the woman who would eventually go on to become the child’s legal mother, she argued.

Most women who carry other women’s children for a fee are usually not well off. The health of such a child could therefore be compromised if the mother who supplied the egg is not allowed to monitor the surrogate mother and take care of her, Pandey further argued.

Updating the law

Justice Rajiv Shakhdher, who wrote the judgement, stated that it was the law’s duty to consider and adapt to changes in science and technology as well as in social attitudes and customs. If terms and phrases in a particular law are lagging behind, then the judiciary must step in and use its powers of interpretation, he said.

The court relied upon a 1999 judgement of England’s House of Lords, which acted as a court before the UK Supreme Court was set up in 2009. In that case, a gay man claimed tenancy rights over a flat after the death of his partner. He contended that even though the law did not recognise their partnership as a marriage, he and his deceased partner did constitute a family because they had lived together as a husband and wife would. But the country’s Rent Act, enacted in 1920, restricted the meaning of “family” to a man and his wife or female partner. The House of Lords, however, held that such a restrictive definition of the term was incongruous with social reality, and extended the term to include same-sex partnerships.

Applying a similar approach, the high court allowed Pandey’s plea held that “maternity” in Rule 43 of the Central Civil Service (Leave) Rules, 1972, which defines and lays down conditions under which employees can avail themselves of maternity leave, should include surrogacy.

Progress at a cost

While possibly trying to lift the stigma against women who cannot bear children, the Delhi high court judgement seems to have given them the upper hand in relation to the surrogate mother.

First, it is based not on an argument calling for a non-discriminatory legal definition of motherhood but one recognising the need to ensure the well-being of the child of the biological mother, who is almost always much better off than the surrogate mother.

Second, the court observed that because the mother supplying the eggs was the legal guardian, she was within her rights to restrain the surrogate mother from terminating the pregnancy, even if the latter is well within her rights to do so under abortion law, the Medical Termination of Pregnancy Act.

This law allows all abortions, without any conditions, if they are carried out within the first trimester. After the first trimester, a woman aborting her child must obtain the permission of a medical board, which will evaluate health risks to the mother and child, as well as other factors. This law does not say anything about cases of surrogacy, namely whether the surrogate mother is also within her rights to terminate the pregnancy within the first three months.

The judge offered no reason for going into this question, which was not relevant to the case, but by overriding the abortion law, he tilts the balance of power in the biological mother’s favour.

Third, the judgement refers to the biological mother as the “commissioning” and not “contracting” mother. Even though Indian contract law does not recognising surrogacy agreements, a contract has a more egalitarian connotation as a legal agreement between two equals. Although in practice one side usually has the upper hand even in a contract, “contracting” is a less one-sided than “commissioning”, which takes for granted that the commissioner, in this case the biological mother, calls the shots.

But the Delhi High Court at least did not use the derogatory term employed by its Kerala counterpart, which in a similar case last year, said that a surrogate mother was a “mere vessel.”

Surrogacy is a booming business in India, but several reports have shown that surrogate mother, often driven by poverty to “rent out” their wombs, are vulnerable to exploitation.

Clinics that promise the biological mother that they will deliver a “healthy product” and take great care to ensure the unborn child, fail to be as sensitive to the needs of the surrogates. In 2013, the government drafted a bill, yet to be passed, to regulate this lucrative trade, but came under criticism for favouring the biological mother, who is almost always more socio-economically privileged.

In the absence of equitable legislation for surrogacy, courts, while championing the rights of one category of mothers, must not, inadvertently or otherwise, give their poorer cousins a raw deal.