After years of discrimination against those women workers who had children through a surrogate, the central government has finally allowed maternity leave to such women employees. The department of personnel and training (DoPT) has instructed all Central ministries and departments to implement a 2015 order of the Delhi High Court. It allows pre-natal and post-natal maternity leave for working women with an infant born through a surrogate mother.

The Delhi HC judgement came after a woman working at Kendriya Vidyalaya filed a petition asking for maternity leave. She had twins through surrogacy and the school had denied her paid maternity leave.

The Court observed that the woman who commissions a surrogate is the legal mother of a child. With this logic, she should get maternity leave according to the norm. But since there were no laws for maternity leave in case of surrogacy, HC framed the necessary guideline in law.

“All ministries/departments are advised to give wide publicity of its (Delhi HC order’s) contents to the concerned officers,” the DoPT said in an office memorandum dated January 29, 2018.

Under sub rule (1) of Rule 43 of CCS (Leave) Rules, a commissioning mother is entitled to apply for maternity leaves. She will have to provide the material for the authority to decide the period and timing of the maternity leave.

A pregnant working woman generally gets 180 days off including both pre-natal and post-natal maternity leaves under Rule 43(1).

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The competent authority will have a refined eye while looking at the pre-natal maternity leave request of the commissioning mother. It will reject pre-natal leave when it has an absolutely reasonable response. However, as for post-natal leave, the authority will more often than not grant such maternity leave.

Until the competent authority amends CCS (Leave) Rule to lay down a clear and uniform policy based on the Delhi HC order, the Central ministries and departments would have to implement the order in letter and spirit while processing applications for maternity leave from commissioning mothers, said an officer from DoPT to TOI.

“All ministries/departments are advised to give wide publicity of its (Delhi HC order’s) contents to the concerned officers,” the DoPT said in an office memorandum dated January 29, 2018.

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