Women who obtain baby through surrogacy entitled to maternity leave

In a welcome move, Bombay High Court recently directed maternity leave to be granted to a woman who had attained motherhood through surrogacy.

The Bench, comprising Justice Anoop V. Mohta and Justice G.S. Kulkarni observed, “Having considered even Rule 551 (C) and (E) of Child Adoption Leave and Rules, we find that a case is made out for grant of interim relief in terms of prayer clause (b) as there is nothing in rule 551 (C) and (E) as referred above, which would disentitle maternity leave to a women who has attained motherhood through surrogacy procedure.”

Accordingly, the Court directed the Central Railway to grant 180 days maternity leave to its woman employee.

The petitioner had given birth to twins through the procedure of surrogacy and thereafter applied for Maternity Leave relying on Rule 551(C) of the Indian Railway Establishment Board. The application was however rejected on the ground that the petitioner, before entering into an agreement of surrogacy, did not take permission of the Railway Board.

The Counsel for the petitioner, Sandeep Shinde and Tanya Goswami had brought to the notice of the Court a Division Bench judgment of Nagpur Bench of Bombay High Court in the case of Dr. Mrs. Hema Vijay Menon v. State of Maharashtra & Ors.,Writ Petition No.3288 of 2015, where it was specifically observed, “A woman cannot be discriminated, as far as maternity benefits are concerned, only on the ground that she has obtained the baby through surrogacy. Though the petitioner did not give birth to the child, the child was placed in the secured hands of the petitioner as soon as it was born. A newly born child cannot be left at the mercy of others.

A maternity leave to the commissioning mother like the petitioner would be necessary. A newly born child needs rearing and that is the most crucial period during which the child requires the care and attention of his mother. There is a tremendous amount of learning that takes place in the first year of the baby’s life, the baby learns a lot too. Also, the bond of affection has to be developed. A mother, as already stated hereinabove, would include a commissioning mother or a mother securing a child through surrogacy. Any other interpretation would result in frustrating the object of providing maternity leave to a mother, who has begotten the child.”

Agreeing with the Petitioner, the Court granted the relief and posted the matter for disposal on March 11.

Last year, Kerala High Court had delivered a similar ruling, observing that women employees cannot be discriminated against for maternity benefits, solely on the ground that they obtained the baby through surrogacy. Justice Dama Seshadri Naidu had considered the dichotomy of maternity- pre and post natal. He had upheld the proposition, and observed, “From day one after the delivery, the petitioner is required to be treated as the mother with a newborn baby. Thus, without discriminating, it can be held that the petitioner is entitled to all the benefits that accrue to an employee after the delivery, as have been provided under the Act or the Staff Rules. Nothing more; nothing less, for the petitioner cannot compel the employer to place her on a higher pedestal than a natural mother could have been placed, after undergoing the pregnancy.”
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U. S. Surrogacy Laws Expected To Change, But The Battle Has Not Been Won Yet

New York surrogacy laws are up for revamp, following the efforts of a Manhattan senator who chose California surrogacy for the surrogate-friendly laws. Go to CaliforniaSurrogacy.org or call (310) 359-9640 for info on becoming a surrogate or intended parent in California.

San Francisco, United States of America – August 12, 2016 /PressCable/ —

California’s favorable surrogacy laws may soon spread across the nation. The Golden State is known as one of the most progressive areas in the country for people hoping to expand their families via surrogacy. Unlike other parts of the country, intended parents have the ability to establish parental rights before a baby is born and contracts can be written that protect both the intended parents and the gestational surrogate.

To learn more about the surrogacy process, call (310) 359-9640 or visit CaliforniaSurrogacy.org.

California is a popular destination for intended parents, drawing people from other parts country and across the globe. While numerous countries have been cracking down on the practice, such as Australia, India, Mexico, and Thailand, California has revamped its laws to make the surrogacy process safer for everyone. In America, each state sets its own guidelines. Arizona has a law that makes “surrogate parent contracts” illegal and, in Indiana, they’re deemed “void and unenforceable.” Washington D.C. has some of the strictest laws in the U.S., which includes fines of as much as $10,000 or prison time for anyone who attempts to enter into a written agreement.

New York’s laws are unique in that they do not outright ban surrogacy, nor does the state have any rules against contracts. However, any form of commercial surrogacy is completely forbidden. Individuals, agencies, and lawyers who become involved could face legal consequences. On the other hand, New York does allow “compassionate surrogacy,” in which the gestational carrier does not receive any compensation. Despite this, there are no laws on the books that protect the rights of intended parents. The gestational carrier is the legal mother of the child, even if she has no biological ties to him. To further complicate things, the state also assumes the woman’s husband is the father of the baby, even in cases of surrogacy. Intended parents must either petition the courts for rights and prove they have a biological relationship to the child or go through the court system as an adoption.

Visit CaliforniaSurrogacy.org or call (310) 359-9640 to register as an intended parent or to become a gestational surrogate in California.

New York’s laws may be revamped, in order to make them more like California’s, as well as more friendly for those in gay marriages. The bill that might change it all was introduced by Senator Brad Hoylman and is known as the “Child-Parent Security Act.” It’s a cause that’s dear to Hoylman, as his own daughter was born with the help of a California surrogate. Back in 2014, he and his husband David Segal remarked about what a magical experience the birth was, with both fathers being present to hold the baby and cut the cord. This moment could not have happened in New York, and still could not, based on the laws today.

The New York Post recently revealed insider information that could be a total game changer. “The governor’s Task Force on Life and the Law is quietly looking at lifting the prohibition,” the news agency said. Although this is the early stages, experts believe that New York’s change in stance could be the start of a trend, with more states updating their laws to accommodate the needs of their citizens.

About California Surrogate Agency

California Surrogate Agency is dedicated to helping families grow and takes great pride in ensuring intended parents and gestational carriers find their ideal matches.

For more information, visit CaliforniaSurrogacy.org or call (310) 359-9640 today.

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Contact Info:
Name: California Surrogate Agency
Organization: California Surrogate Agency
Phone: 310-359-9640

Release ID: 127716

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Legal implications of surrogacy

My partner and I cannot have a child naturally and want to consider surrogacy. What legal issues must I consider?

Surrogacy is the process by which a child is carried through pregnancy by a woman who has entered into an arrangement that the child and parental responsibility for it will be transferred to another person(s) at birth. Surrogacy arrangements are often attractive to heterosexual couples who are experiencing infertility, and same-sex couples.

Whilst surrogacy is legal in the UK, commercial surrogacy is not. No money or benefit must be given or received under the arrangement, other than for expenses.

One of the first issues to consider is whether to enter into a partial or total surrogacy arrangement. Partial surrogacy is the process whereby the surrogate mother is also the child’s biological mother. The child will be biologically related to the father (or sperm donor) and the surrogate mother.

In contrast, total surrogacy is where the woman carrying the child is not biologically related to the child. The embryo is carried by the surrogate and can be created from:

A genetic mother’s egg and genetic father’s (or donor’s) sperm.

A donor egg and genetic father’s sperm.

A donor egg and donor sperm.

Another important issue to consider is where to enter into the surrogacy arrangement. If you choose an international surrogate, it is vital that you seek specialist advice.

The surrogate mother (whether or not biologically related) is treated as the child’s legal mother until the court makes a court order in favour of the commissioning parents. The surrogate mother cannot simply surrender her parental responsibility. If the surrogate mother is married, the husband of the surrogate mother will be treated as the father of the child.

The permanent transfer of legal parenthood and parental responsibility to the commissioning parents can only be brought about by the making of an ‘adoption order’ or a ‘parental order’.

The application for a parental order must be made within six months of the child’s birth. The applicants must be aged at least 18 years old and either be married, in a civil partnership, or in an enduring family relationship (i.e. living together as a couple). Furthermore, at least one of the commissioning parents must have provided the genetic material used to create the embryo. Finally, the surrogate mother (and her husband, if applicable) must give free and unconditional agreement to the order being made.

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