Surrogacy no ground to deny maternity leave: HC
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Shimla, Sept 12
Himachal Pradesh High Court has ruled that a woman government employee cannot be denied maternity leave merely because she became a mother through surrogacy, holding that a commissioning mother is entitled to maternity leave at par with any other female government servant.
Justice Ajay Mohan Goel, in a judgment delivered on August 3, 2026, held that a commissioning mother or surrogate mother is entitled to maternity leave under Rule 43(1) of the Central Civil Services (Leave) Rules, 1972, as applicable in Himachal Pradesh. The court further held that the State cannot deny the benefit on the ground that it has not adopted the Department of Personnel and Training (DoPT) notification dated June 18, 2024.
The ruling came on a petition filed by Dr Juhi Manhas, who had become a commissioning mother through surrogacy. She had availed 180 days of maternity leave after the birth of her first child and subsequently took other leave. She again availed maternity leave after becoming a commissioning mother for a second child. However, the department later refused to recognise the maternity leave, citing the fact that the State Government had not adopted the DoPT notification of June 18, 2024.
The State argued before the High Court that since the 2024 DoPT notification, which specifically incorporated provisions for surrogate and commissioning mothers, had not been adopted by Himachal Pradesh, there was no provision to grant maternity leave to such employees.
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The High Court rejected the contention, observing that “a mother is a mother”, whether she gives birth naturally or becomes a commissioning mother through surrogacy. It said maternity leave under the service rules was intended for the benefit of both the mother and the newly born child.
The court relied heavily on an earlier Division Bench judgment in Sushma Devi vs State of Himachal Pradesh, delivered on March 4, 2021. In that case, the High Court had already held that a commissioning mother could not be denied paid maternity leave merely because she had not physically given birth to the child. The earlier judgment had attained finality and had been implemented, the court noted.
The High Court reiterated that maternity leave is intended not merely to address the physical needs associated with childbirth but also to enable the mother to care for the newborn and develop an emotional bond with the child. It held that discriminating against a woman because she had obtained her child through surrogacy would undermine the very purpose of maternity protection.
The court also referred to the constitutional mandate under Article 42, which directs the State to make provisions for just and humane conditions of work and maternity relief.
Significantly, Justice Goel held that there was no requirement for the Himachal Pradesh Government to separately adopt the June 18, 2024 DoPT notification, since the law declared by the High Court in the earlier case was binding on the State. A female government employee who is a commissioning or surrogate mother is therefore entitled to maternity leave on the same footing as any other female government servant.
The court also noted that the State had itself provided for 180 days of child adoption leave for a female government servant adopting a child below one year of age. It questioned why maternity leave should then be denied to a woman who becomes a mother through surrogacy.
Allowing the petition, the High Court quashed the orders by which Dr Manhas had been denied maternity leave. It directed the authorities to treat 180 days of leave taken after the birth of each of her two children as maternity leave. Leave taken immediately thereafter was also directed to be treated in accordance with Rule 43(4) of the CCS (Leave) Rules.
The court further directed the authorities to adjust the 32 days of earned leave taken by the petitioner, if due to her at the relevant time, and ordered the release of her withheld salary, preferably within two months.
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