The Maternity Benefit Act, 1961, is silent on the topic of Surrogacy. For any legislative reforms in this area, it may take a lot of time
CASE: Though surrogacy is not new in India, there is no comprehensive legislation on it. In March 2013, the Madras High Court held that government employees opting for children through surrogacy too would be entitled to ‘maternity leave’ in the form of ‘child care leave’. What should a private sector employee, who wants to be a surrogate mother or who wants to opt for surrogacy, do in such cases?
Sooner or later, this will certainly become a topic for consideration for the diversity professionals in India. The Maternity Benefit Act, 1961, is silent on this topic. For any legislative reforms in this area, it may take a lot of time; in the meanwhile Corporate India will have to evolve its own policies and rules.
Surrogate mother is a very new social phenomenon and therefore not much work has happened in this area. Let us look at this issue from the perspective of the intended mothers and the surrogate mothers separately. An intended mother is the woman who intends to become a mother but for medical/non-medical reasons decides to or is unable to conceive the child. Surrogacy is a process when another woman carries the pregnancy on behalf of the intended mother and gives the birth to the baby.
In this case, generally immediately after the birth the intended mother, who is the legal mother, takes the possession of her child from the surrogate mother. I would like to suggest that such intended mothers be given the same maternity benefits that The Maternity Benefit Act, 1961, provides after the child birth, if the woman takes the child into her care following the birth.
This will be akin to the prevailing practice that many companies follow with respect to adoption. This will ensure that the intended mother can take care of the child immediately after the birth. The Madras High Court judgment cited above on ‘child care leave’ is on similar lines. The private sector will have to adopt a similar practice by making appropriate policies on this topic.
Now let us look at the case of the surrogate mother. This may become a slightly controversial issue since there may be two possible scenarios:
- Those who choose to become surrogate mothers for commercial considerations. OR
- Those who may choose to become surrogate mothers for non-commercial considerations, to genuinely help a friend or a distant relative (As per the Indian Council of Medical Research (ICMR) Guidelines the surrogate mother should not be biologically connected to the child).
In the first case, since the woman becomes a surrogate mother due to commercial considerations corporations may choose not to give her any benefits, while in the second instance since there are no commercial considerations corporations will be encouraged to give this person similar benefits as in The Maternity Benefit Act, 1961.
Surrogacy is not illegal in India; however it is unregulated since we don’t have a legislation controlling surrogacy. We just have a set of guidelines created by The Indian Council of Medical Research (ICMR).