3 weeks ago
Himachal High Court grants surrogacy maternity leave to doctor
A doctor who works for the Himachal Pradesh government became a mother of two children through surrogacy.
That means other mothers helped carry and deliver the babies for her.
When she asked for maternity leave, the government said no.
The government said it could not give her the leave because it had not adopted new national rules about this.
The doctor went to court to ask for help.
The judge said a mother is a mother no matter how her baby is born.
He said the doctor should get 180 days of maternity leave after the birth of each of her two children.
He also said the government must give back the money it had kept from her salary.
The court said the government has to finish all of this within two months.
This decision helps make sure all mothers are treated fairly.
The Himachal Pradesh High Court ruled that a government employee cannot be denied maternity leave after becoming a mother through surrogacy.
The court directed authorities to grant a government doctor 180 days' maternity leave after the birth of each of her two children through surrogacy, along with withheld salary and other leave benefits.
The state had refused leave on the ground that Himachal Pradesh had not adopted the Department of Personnel and Training's (DoPT) notification dated June 18, 2024.
Justice Ajay Mohan Goel held that motherhood cannot be distinguished based on the manner in which a child is born, citing the binding precedent in Sushma Devi vs State of HP (2021).
The court quashed the departmental communications dated August 22, 2023 and July 31, 2025, and ordered the entire exercise completed within two months.
- Who
- A government doctor and commissioning mother, who petitioned the Himachal Pradesh High Court against the State of Himachal Pradesh; the case was heard by Justice Ajay Mohan Goel.
- What
- The court granted the doctor 180 days' maternity leave for each of her two children born through surrogacy, plus withheld salary and other leave benefits, quashing the state's refusal.
- Where
- Himachal Pradesh High Court, India.
- When
- Hearing on August 3; the refusal communications were dated August 22, 2023 and July 31, 2025.
- Why
- Because motherhood cannot be distinguished based on the manner in which a child is born, and denying maternity leave to commissioning mothers amounts to discrimination.
High Court and petitioner
State of Himachal Pradesh
Maternity leave for commissioning mothers
High Court and petitioner
A commissioning mother is entitled to 180 days' maternity leave at par with any other female government servant; denying it is discriminatory and unsustainable in law.
State of Himachal Pradesh
Maternity leave could be refused because Himachal Pradesh had not adopted the Centre's 2024 rules extending the benefit to commissioning and surrogate mothers.
Need to adopt the DoPT notification
High Court and petitioner
There is no need for the state to adopt the DoPT notification of June 18, 2024, because the law declared by the High Court in Sushma Devi is already binding on the state.
State of Himachal Pradesh
Since the state had not adopted the DoPT notification, it treated the maternity leave benefit as not applicable to its employees.
Relevance of departmental proceedings
High Court and petitioner
The departmental proceedings over the doctor's absence had been closed and she was exonerated by the competent authority on July 2, 2024, so they cannot justify denying leave.
State of Himachal Pradesh
The state referred to departmental proceedings initiated against the petitioner regarding her absence from duty.
Key facts
- Court
- Himachal Pradesh High Court
- Judge
- Justice Ajay Mohan Goel
- Petitioner
- Government doctor, commissioning mother of two children through surrogacy
- Relief granted
- 180 days' maternity leave after the birth of each of her two children
- Salary to be released
- Withheld salary for July-August 2021 and eight days of September 2021
- Key notification
- DoPT notification dated June 18, 2024
- Binding precedent
- Sushma Devi vs State of HP (2021)
- Compliance deadline
- Within two months
Quotes
Justice Ajay Mohan Goel
Judge of the Himachal Pradesh High Court
“"A mother is a mother, be it by giving birth to a child naturally or being a commissioning mother… The petitioner, having become a commissioning mother on two occasions, has a right to be granted maternity leave on both the occasions and the act of the respondents of denying maternity leave to her is completely unsustainable in law," the court said.”
indianexpress.com
“"When the respondent‑State has been considerate enough to grant child adoption leave in the case of adoption of a child, it is not understood as to why it is objecting to grant Maternity Leave to a surrogate mother and/or a commissioning mother," the court observed.”
indianexpress.com
Sources
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