Read the minds of our team of HR writers. Europe & Rest of World: +44 203 826 8149. This is very meaningfully and precisely summed up by Justice K Chandru “If law can provide child care leave in case of adoptive parents, then it should also apply to parents who obtained a child through a surrogate agreement. Remote work, digital transformation, and engagement are hot topics according to our new survey on the New World of Work. The Court declares that there ought not to be any discrimination against a woman in grant of maternity benefits on the ground that she has obtained the baby through surrogacy. “Affect” vs. “Effect”: Use The Correct Word Every Time. 1577, p. 3, available at http://www.refworld.org/docid/3ae6b38f0.html (Last visited accessed 16 February 2015). Big multinationals already lead the way in this regard; small businesses, on the other hand, tend to overestimate the costs while underestimating the benefits involved. 1249, p. 13, available at http://www.refworld.org/docid/3ae6b3970.html (Last visited accessed 2 February 2015). & ors -v- An t-Ard-Chláraitheoir & ors[26] before Irish Supreme Court , it was held that “the individual at parturition is assumed to be the mother of the child as indicated by the latin maxim mater semper certa est meaning motherhood is certain and a fact ascertained by the act of parturition therefore proved. It may be posited that there is need to include child care leave in the ART Bill for the same in keeping this judicial dictum. The court in consonance with the mandate of UNCRC[15] best interest of child and infant health care. Edit them in the Widget section of the, Right to child care leave for the women attaining motherhood through Surrogacy in India- K.Kalaiselvi vs Chennai Port Trust [1]and P.Geetha vs The Kerala Livestock Development [2] –, http://icmr.nic.in/guide/ART%20REGULATION%20Draft%20Bill1.pdf, http://www.refworld.org/docid/3ae6b3712c.html (Last, http://www.refworld.org/docid/3ae6b3970.html (Last, http://www.refworld.org/docid/3dde04324.html (Last, http://www.refworld.org/docid/3ae6b38f0.html (Last, Assisted Reproductive Technologies ( ART ) Bill, Beijing Declaration and Platform for Action Fourth World Conference on Women-, Bejing Declaration & Platform for ACtion Fourth WOrld Conference on Women - Right of all women to control all aspects of their health, child care leave for Intending mother or woman attaining motherhood through surrogacy, Commissions for Protection of Child Right Act-best interest of child, inclusive, beneficial interpretation of legislations, Kerala High court Child care leave for surrogacy, latin maxim mater semper certa est meaning motherhood is certain, M.R. Under more stingy legislation however, they may reap great value from giving their employees generous maternity leave benefits within their capabilities. [13] Article 25(2), UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), available at http://www.refworld.org/docid/3ae6b3712c.html (Last visited 16 February 2015). Unfortunately, a maternity leave policy on its own doesn’t make you family-friendly. However with surrogacy  there is  a new class of emerging mothers  as intended or commissioning mother who  attain motherhood  using  the medical technology ART involving the service of surrogate mother who undergoes gestation and child birthing in place of the intended mother who is infertile or unfit for gestation , delivery  but in certain cases the intended mother may merely donates eggs or ova establishing biological connection. See more. This is in keeping with the relevant provision of UDHR[9], UNCEDAW[10], Beijing Declaration[11] appropriately identified by the court, the provision states that maternity is a social function coupled with and recognition of the responsibility for upbringing and development of their children and imposes duty on the state government to allow maternity leave as social benefits and prevent discrimination against women on the grounds of maternity[12] and that Motherhood and childhood are entitled to special care and assistance and social protection for all children whether born in or out of wedlock under Universal Declaration of Human Rights[13] and also the Beijing Declaration and Platform for Action Fourth World Conference on Women, Articles 17 and 33 namely providing for the right of all women to control all aspects of their health, in particular their own fertility as is basic to their empowerment respectively. It is significant to note that in this case the petitioner claiming the leave adduces pertinent argument stating that the there is no distinction between maternity by way of natural process and by way of ART as for all intents and purposes the intending parents are the natural or the biological parents with same set of rights and obligations and therefore denying the petitioner the maternity benefit is an instance of invidious discrimination affecting her fundamental right as a woman. Banish the blank page for good with our 1000+ HR templates. India has formally legalized surrogacy in the year 2008 in the case of Baby Manji vs Union of India[4] where in the supreme court formally legalized commercial surrogacy in India and directed for the formulation of Assisted Reproductive Technologies ( ART ) Bill[5], draft surrogacy law on the same. An increasing number of companies aren’t waiting for the government to take the lead and are offering more than the legal minimum. Maternity leave pay is compulsory in most countries, except the US, Papua New Guinea and Oman. The court redefines the concept of maternity right by taking from the international Convention No.183 of International Labour Organisation[14], or the Maternity Protection Convention (Revised), 1952, the General Conference of the ILO issued guidelines in its 88th Session on 30th May, 2000 which establishes that maternity has to be viewed holistically to include not only pregnancy but also child birth, rearing , bonding between mother and child. How many Word of the Day terms do you remember from the week of November 2–8, 2020? Leave in special situations. Maternity leave policies in the United States have come a long way from the 1960s when working mothers were considered temporarily disabled under state law. Remote work, technology, and engagement are hot topics in the New World of Work. The latter maxim is also incorporated and given effect in our Indian legislation as mentioned Maternity Benefit Act, Indian evidence Act which reinstates motherhood as a fact. and D.R. Maternity Leave. [12] Article 5(b), Article 11 2. In the absence of any statutory binding law on surrogacy coupled with omission in ART Bill to address the same. Accordingly the Kerala HC after held that women may attain motherhood through with advanced reproduction techniques ART and these women may be treated as same as natural biological mother and she should be entitled to same set of rights and obligations in the non-denial or non-recognition of such rights status of women would amount to discrimination against such women. But the US remains a laggard when compared with other advanced economies like the United Kingdom, which offers statutory maternity pay covering  to 90% of earnings for up to 39 weeks; or Sweden which offers more than 34 weeks maternity leave with an additional 180 days that can be taken or transferred to a partner. Info- “Right to child care leave for the women attaining motherhood through surrogacy in India” , Sonali Kusum, AIR’s Labour and industrial cases journal, Vol .48, Part 5 , May 2015 issue. Americas: +1 857 990 9675 The court upholds the right to health , survival , development and particularly formative care of the child. “Democrat” vs. “Republican”: Where Did The Parties Get Their Names? After establishing a maternity leave policy, your employees will at some point use the benefits you offer. [15] UN General Assembly, Convention on the Rights of the Child, United Nations, Treaty Series, vol. Get clear, concise, up-to-date advice with our practical, step-by-step guides. Women now occupy almost half of the workforce and national laws guarantee 12 weeks of unpaid leave (for employees in companies with more than 50 employees) under the Family and Medical Leave Act passed in 1993. Depending on legislation, it can range from a mere 42 days in Papua New Guinea to a startling 410 days in Bulgaria. The court lays down the rule of inclusive, beneficial interpretation of reading into or by permitting or by inclusion of progressive modern developments within the scope of the existing laws, legislation. 20680 of 2014 (H),18 June, 2014, [3] TNN ,Should Mother of Surrogate Child be Entitled to Maternity Leave? The court after dwelling upon the protective safeguards for the intending mother and the child. 53 OF 1961 1 [12th December, 1961. “Corporal,” “General,” “Sergeant,” “Private”: What’s The Order Of The Military Ranks? © William Collins Sons & Co. Ltd. 1979, 1986 © HarperCollins In the latter non biological motherhood women attains motherhood through exchange of custody, guardianship from the natural parents  through adoption as under the Adoption Act. There is a felt need to address the legal recognition of this emerging form of motherhood in the absence of any statutory law on the same at present in India. In tandem the court referred to relevant Indian constitutional provisions namely Article 51(c) obligation to respect the international covenants, Article 253 Parliament’s power to give effect to International conventions which enable incorporation and giving effect of international law. The existing laws may be revised to afford legal cognizance to this form of motherhood as well as the child  parent in relationship. 4 of 2006,  (20th January, 2006,). This interpretation allows the growth of law in keeping with the changes in society and prevents the laws from becoming obsolete, regressive and expands the scope of law , judicial interpretation. In both these cases the court granted affirmatively the right to child care leave for the petitioner as requested by beneficial interpretation. You quickly see that things have changed: they’ve been away for quite some time and now they have heavier life responsibilities than before. Strategies for hiring interims or independent contractors, cross-training your employees etc. The petitioner requested for sanction of maternity leave to the Chennai Port Trust authority and the Ministry of Shipping and Surface Transport to look after the newly born girl child. But at both the forums she was denied the same.