Maternity Benefits for Surrogate Parents

The Centre recently brought about a much-needed amendment announcing that women government employees will be allowed maternity leave for 180 days in cases of surrogacy, breaking a almost half a decade old rule. The amended rule says that both the surrogate and the commissioning mother (with less than 2 surviving children) are entitled to this leave, if either or both of them are government servants. 

In this Weekly, we discuss what the law says about maternity benefits and how it applies to surrogate mothers. 

What is a Maternity Benefit?

In India, the Maternity Benefit Act 1961 ensures the well-being of women before and after the delivery. 

Maternity benefit is the support, both financial and in kind, that an employer gives an employee when she is going to have a child. It helps protect the rights of women employees during pregnancy. It includes payment at par with the expecting mother’s current salary as well as paid leave and other benefits, so that they don’t suffer any negative consequences on account of their pregnancies and are not forced to work in the later stages of pregnancies and post-partum.

Who can seek Maternity Benefits?

You can seek maternity benefits if you are a woman and if you are:

• Pregnant for the first time
• Pregnant with one child or 2 children already
• Adopting a child below the age of 3 months 
• Having a child through a surrogate 
• Recovering from a miscarriage, abortion or tubectomy operation

What is Surrogacy?

The Office of the High Commissioner for Human Rights (OHCHR) defines surrogacy as a reproductive practice where those who intend to become parents contract another woman  to give birth to a child. Under this process, the surrogate mother does not have any parental rights over the child.

In India, surrogacy is governed by the Surrogacy (Regulation) Act, 2021, which defines “surrogacy” as a practice where one woman bears and gives birth to a child for an intending couple and hands over such child to the intending couple after the birth of the child. 

Is surrogacy legal in India?

According to the 2021 Act, only altruistic surrogacy, where a woman offers to be a surrogate mother to intended parents without any compensation or financial remuneration is permitted. Any form of commercial surrogacy, that is, surrogacy for payment, is illegal.

Existing Rule 

The existing rule explicitly states that women and single men, who are government servants, will get childcare leave of up to 730 days. 

The leave is granted for taking care of the two eldest surviving children in terms of their educational or medical requirements. 

What does the new amendment state? 

The new amendment was introduced on 18th June 2024. It gave a wider perspective on laws regarding maternity leave in the case of surrogacy. 

The term “commissioning father” was clarified by the Personnel Ministry as the intending father of a child through surrogacy. 

Besides, the amendments to the Central Civil Services (Leave) Rules, 1972 now afford the commissioning mothers i.e. the intending mother of a child born through surrogacy,  the opportunity to take child care leave. 

This provision extends additional support to individuals involved in surrogacy arrangements, recognising and taking care of their needs arising from this process. 

The changes also introduced a paternity leave of 15 days for the commissioning fathers within 6 months from the date of delivery of the child.

Read more about Maternity Benefit on Nyaaya’s Explainer here.