COMMISSIONING MOTHER

CIA-1
Submitted to
Dr. Balwinder Kaur
Assistant professor

By

CHANCHAL PATRE
B. A. LL. B. (Hons.)
Semester –IV, Section – A
Roll no.- 37

Hidayatullah National Law University

Uparwara Post, Naya Raipur – 492002 (C.G.)
 Declaration of originality
The project title “COMMISSIONING MOTHER” is my own original work and the relevant
documents and articles have been properly acknowledged and appropriately cited and given
credit.

Thanking You
Chanchal Patre
 INTRODUCTION
The term “commissioning mother” is given under section 2 (ba) of ‘The Maternity
Benefit (Amendment) Act,1961’which says that commissioning mother is a natural
mother who fertilises an embryo that is implanted in a different woman using her own
egg. A woman worker that is a commissioning mother may take up to 12 weeks of
paid maternity leave. The start date for calculating the length of maternity leave will
be the day the child is given it to commissioning mother. “An infertile married couple
who approaches an assisted reproductive technology clinic (ART Clinic) or an
assisted reproductive technology bank” (ART Bank) with the intention of having a
child through surrogacy is referred to as a commissioning couple under the Assisted
Reproductive Technology (Regulations) Act of 2021. Similarly, a commissioning
mother is a woman who wants to have a child through renting a surrogate mother's
womb. The commission mother, however, continues to be the child's biological
mother and is the child's only legal guardian.
In the case of K. Kalaiselvi v. Chennai Port Trust1 the issue was that “If a woman
employee working for the Chennai Port Trust is entitled to maternity leave even in the
scenario where she has the child through agreement with surrogate parents, that is the
brief question that needs to be addressed in this writ appeal”. court said that there is
no moral dilemma in this situation because the petitioner is unquestionably the mother
of a young girl and is entitled to form a link with the kid obtained through a surrogate
agreement. The petitioner is entitled to the leave being granted in the child's best
interest. Given that she is the petitioner's legal daughter, she has the right to have her
name listed as such on the FMI card now and in the future.

Research questions
 To understand the concept of Commissioning mother
 To study the legal discourse pertaining to the Commissioning Mother

1
K. Kalaiselvi v. Chennai Port Trust,2013, W.P (C) No. 8188/2012.6
 LEGAL RIGHTS OF COMMISSIONING MOTHER
There are various case laws regarding the commissioning mother to determine
their legal rights to get maternity leave and case decided in number of courts
DELHI HIGH COURT

In the case of Rama Pandey v. Union of India2 The Petitioner had a contract
with Mrs. Aarti, Mr. Surya Narayan's wife (hereafter referred to as the
surrogate mother). The agreement needs the surrogate mother to use in-vitro
fertilisation (IVF) to conceive a child. The procedure followed and accepted
called for the biological father to fertilise the intended donor's ovum in-vitro.
It was then necessary to transfer and implant the resulting embryo in the
surrogate mother. This arrangement was reduced to a formal agreement along
with additional terms and conditions, including the commissioning parents'
and the surrogate mother's rights and duties. The Petitioner's spouse and her
afterwards been blessed with twins.

The conflict started when the Petitioner's employer—a government agency—

rejected her request for a Child-Care Leave (CCL). Similar to this, the
petitioner filed Petition with Court, and the case was thoroughly heard before
a final ruling was made in this respect. The pre-natal and post-natal periods of
pregnancy are two distinct phases, according to the court. The majority of
times, pregnant female employees who are physically healthy and do not have
medical issues take use of a significant portion of their maternity leave in the
time after birth. The majority of organisations' policies and guidelines in this
area do not divide maternity leave into prenatal and postnatal phases, or
"bifurcation," as this is known. The fact that the hardest phase of delivering a
child into the world comes after delivery, in the post-natal period, explains
why a significant portion of the leave is taken by the female employees. Thus,
it is clear that all hurdles associated with raising children, other than the
biological changes and challenges, apply to all female workers, regardless of
the method uses to bring a kid into the world.

2
Rama Pandey v. Union of India, 1993 AIR 1766, 1993 SCR (1)786
 Additionally, a commissioning mother must establish a relationship with the
kid and assume the role of a nursing mother as soon as the child is delivered.
When a child is born, the commissioning mother will therefore take on the role
as the primary carer. Therefore, it is not permissible to deny a commissioning
mother's right to maternity leave on the grounds, the child was not born to her.
BOMBAY HIGH COURT
In the case of Hema Vijay Menon v. State of Maharashtra3 (2015), the
Bombay High Court was presented with a comparable situation. The petitioner
in this case chose to pursue surrogacy after feeling vindicated by the death of
her 15-year-old son. If a mother can take maternity leave even though she had
the kid through surrogacy was the question before the court. Maternity leave is
intended to safeguard the honour of motherhood by ensuring the lady and the
child have all they need to remain well and whole. According to this
perspective, the goal and motive of offering maternity leave should include the
health and upbringing of the kid as well as the mother's health. During the first
year after the kid's birth, a link and attachment must be developed between the
mother and the infant. Furthermore, achieving social fairness for women is the
overarching goal of the laws and regulations governing maternity leave. The
rights and responsibilities a commissioning mother has for the child are the
same as those of a natural mother. Even though the kid was not born to the
petitioner, the petitioner was given custody of it as soon as it was born. A
new-born cannot be abandoned in the care of others. The commissioning
mother must take maternity leave. A new-born has to be raised, and it is the
most important time when the youngster needs his mother's care and attention.
The first year of a baby's existence is one in which they learn a tremendous
lot. Therefore, there is absolutely no difference between a woman who gives
birth to a kid through a surrogate mother and one who adopts a child.

According to “Article 21 of the Indian Constitution, right to life" encompasses

"the right of every child to full development" and "the right to motherhood." A
mother who bears a child through the surrogacy process is entitled to
maternity leave if the government can provide it to an adoptive mother.

3
Hema Vijay Menon v. State of Maharashtra,2015 WR 3288
 HIMACHAL PRADESH HIGH COURT
The Himachal Pradesh High Court recently addressed the issue of whether a
woman employed by the government as a language teacher on a contract basis
is eligible to take maternity leave even if she has a child through a surrogate
parent arrangement in its decision in Sushma Devi v. State of Himachal
Pradesh and Ors.20214. The High Court cited a number of earlier decisions
issued in this area in addressing this matter. The Himachal Pradesh High
Court's State of H.P. v. Sudesh Kumari division bench decision, which
concluded that the right to maternity leave is founded on fair play and social
justice and that no discrimination of any kind may be imposed, was referenced
by the High Court. The basic right to equality before the law is violated and
Article 14 is broken if there is any discrimination. Additionally, the court
noted the cases of Hema Vijay Menon v. State of Maharashtra, Rama Pandey
v. Union of India, and Municipal Corporation of Delhi v. Female Workers
from 2003. In agreement with all of the aforementioned rulings, the court
ruled that maternity leave for commissioning mothers cannot be withheld and
that there cannot be any discrimination in woman bears a child through
surrogacy and biological mother.

CONCLUSION
4
Sushma Devi v. State of Himachal Pradesh and Ors. 2014 SCC HP 4844
 Regarding female government employees, the Indian judiciary has the
aforementioned stance. The conditions of each individual employee's contract
with the employer regulate private employees. Depending on the company,
private agreements may have different maternity rights. However, the "right to
motherhood" and "right of the child to complete growth" are included in the
“Right to Life”, which is a basic right accorded to every member of the nation,
as stated by Court in the Hema Vijay Menon case. Thus, even private
employees who are denied paid maternity leave at the post-natal stage can
pursue these rights as basic rights against their employers.5

5
Law insider, https://www.lawinsider.com(last visited jan.28 2023)