by Himanshu and Anjali Jena 5 August 2023
I. INTRODUCTION
The provision of maternity protection is crucial for promoting equal opportunities in employment and ensuring that women do not face obstacles in their careers due to childbirth. However, while India has made significant strides in maternity legislation, one group that has been overlooked is gestational surrogates. The exclusion of gestational surrogates from maternity benefits raises questions about the government’s policy agenda and its impact on social justice. This paper argues that maternity benefits should be extended to gestational surrogates to ensure their rights to livelihood and social security.
II. MEANING OF MATERNITY
The interpretation of the term “maternity” has evolved over time. In the landmark case of Rama Pandey v. Union of India, the Delhi High Court rejected the notion that maternity benefits were solely meant to protect the health and safety of the woman. The court recognized that advancements in reproductive technologies have expanded the possibilities of achieving and carrying a pregnancy to term. Therefore, the definition of maternity should not be confined to situations where the woman herself carries the child. This judgment provides a broad interpretation of maternity and acknowledges the evolving nature of reproductive technologies.
III. MATERNITY BENEFITS AND SURROGACY: AN UNINTENTIONAL OVERSIGHT?
The Indian treatment of surrogacy is a topic that cannot be fully understood without placing it in the larger context of family planning, population and policy. In fact, population theories have been acknowledged worldwide to frame economic and social legislations, becoming defining points in managing per capita GDPs. Thus, ignoring or dismissing the effects that such approaches could and do have on tangential legislations such as the Social Security Code would be an analytical oversight.
One of the most radical theories of family planning and population growth is credited to Thomas Robert Malthus. In his hypothesis, he postulated the inverse relationship between poverty and population and gave biological reasons for it. Contrarily, Marx viewed the Capitalist structure to be the root cause wherein the Capitalist manufactured the population problem to enable exploitation of labour. These theories are peculiarly viewed in light of the fact that maternity benefits are not being extended to the gestational surrogate, leading to a three-step argument.
The first corollary being that the Indian government has recognized that there is a population problem and has attempted to address it through direct means such as the National Family Planning Programme which incentivizes female contraception, the Prime Minister’s acknowledgement of it in his 73rd Independence day address along-with the impending Population Control Bill. More importantly it is also done through some rather indirect means such as reducing maternity benefits to women if they opt to have a third child and the two child norm for panchayat elections’ eligibility.
From this standpoint, the second branch then is that surrogacy has been coloured as morally unacceptable in line with Malthusian ‘preventive restraint’ but at the same time, the burden of family planning has been levelled on the working class, particularly the labour as they stand to lose the most by the application of these laws. The primary arguments of which are beyond the scope of this paper. However, tying these two observations in with the third moving part, being that it was a considered choice to not include the gestational surrogate, it becomes evident that the intention was to disadvantage or at least disincentivize that segment of the working class which chooses to be a surrogate or have a child through surrogacy.
When considering the Maternity Benefit Bill 2016, a reading of the parliamentary debates reveals that Dr. Kakoli Ghosh Dastidar explicitly called for the inclusion of the surrogate mother within the fold of benefits but was categorically overlooked. It is thus apparent that the exclusion was not an inadvertent lapse but perhaps a carefully made legislative choice to use law as a tool of social engineering.
However, the silence of the 2020 code is not watertight, and the courts have and possibly will nullify the unstated. This is because the exclusion of the gestational surrogate from maternity benefits is not only a legislative lapse but also a deliberate omission that may have far-reaching implications.
In conclusion, the exclusion of the gestational surrogate from maternity benefits cannot be viewed in isolation from broader population theories and policies. It is an example of how laws can be used as tools of social engineering to discourage certain behaviours or segments of society. However, it is not a watertight exclusion, and the courts may nullify it in the future. Therefore, it is essential to continue to scrutinize legislative omissions and lapses and to advocate for inclusivity and equity in policy-making.
IV. BEYOND BIOLOGY: EXPANDING THE DEFINITION OF “MOTHER” IN MATERNITY LAW TO INCLUDE GESTATIONAL SURROGATES
The recognition of gestational surrogacy in the maternity law is essential to ensure that gestational surrogates are not deprived of their right to livelihood and adequate social security. The right to dignity, bodily autonomy, reproductive choice, and maternal healthcare are fundamental human rights, and the state is obligated to provide them to all individuals. Maternity leave and benefits are crucial for pregnant individuals to secure their right to livelihood, as it is also considered a fundamental right. The Indian Supreme Court has upheld the right to livelihood under Article 21 of the Indian Constitution.
The 2017 amendments to the Maternity Benefits Act recognized the right to motherhood as a human right and included adoptive and commissioning mothers within the ambit of maternity benefits. However, gestational surrogates were left out of this legislation. The Madras High Court provided the foundation for these amendments in 2013 in the case of K. Kalaiselvi v Chennai Port Trust , where it directed the Port Trust to extend maternity benefits to the commissioning mother.
The Chhattisgarh High Court flagged the loophole of gestational mothers’ rights in the Maternity Benefits Act, noting that the right to life under Article 21 of the Indian Constitution includes the right to motherhood and the right to every child’s full development. The court also emphasized that the state government cannot make a distinction between a natural mother, a biological mother, and a mother who has begotten a child by surrogacy procedure. The absence of any law that requires employers to provide leave to gestational surrogates can leave them disadvantaged, and the lack of any safeguard can further exacerbate their vulnerability.
The 2020 Code defines a commissioning mother as only those whose egg is used to create the embryo, leaving no room for traditional surrogacy. The Code does not define “surrogate” or “gestational surrogate.” Furthermore, the Code’s only recognition of a gestational surrogate occurs in Section 91(i), where she is referred to as “another woman.” The exclusion of such a vital stakeholder from the text and intent of a welfare legislation is problematic. As no compensation can be offered for carrying the child, gestational surrogates may be left in want of adequate monetary protection.
However, the courts might find themselves obligated to extend benefits to gestational surrogates because the Act has no explicit bar, and welfare legislation should be construed liberally. By virtue of the explanation appended to Section 60(3), even a woman who births a stillborn child is entitled to benefits. Section 59 extends the benefits of the Chapter to women undergoing a miscarriage or medical termination of pregnancy. The courts have also recognized that maternity benefits have two aspects: maternity and motherhood, whereby the former pertains to the physical aspects of pregnancy and the latter to child care and bonding. Therefore, the mere factum of pregnancy leads to entitlement to maternity benefits, irrespective of whether the woman was birthing her own child or another’s. If this were not the case, there would be no rationale to entitle those women whose pregnancy does not result in a child being born to them, such as miscarriages/medical terminations.
In conclusion, gestational surrogates should be recognized in the maternity law to ensure that they are not deprived of their right to livelihood and adequate social security. The state’s obligation to provide maternal healthcare, the right to livelihood, and the recognition of the right to motherhood as a human right underscore the need to extend maternity benefits to gestational surrogates. The absence of safeguards for gestational surrogates can exacerbate their vulnerability, and the 2020 Code’s exclusion of gestational surrogates is problematic. Therefore, the courts should interpret the legislation liberally and extend maternity benefits to this vulnerable class as well.
V. CONCLUSION: BALANCING INTERESTS
The Indian Maternity Benefit Act of 1961 was a significant step towards protecting the rights of working mothers. However, the exclusion of gestational surrogates from maternity benefits in the 2020 Code raises questions about the legislative intent and the policy agenda against surrogacy. Any woman who is pregnant and fulfils the eligibility criteria should be entitled to maternity benefits, regardless of the type of mother or woman she is. The tension between industrial efficacy and worker welfare should be addressed by balancing the entitlements of gestational surrogates and commissioning mothers. While the exclusion of gestational surrogates from the Code is not comprehensive, amending the 2020 Code to include them would minimize potential litigation and ensure a clear and comprehensive legislative framework.
In conclusion, following set of action plan has been suggested to be adopted to ensure social justice and equal opportunities in employment:
1. Recognition of Evolving Reproductive Technologies:
Legislation should recognize the evolving nature of reproductive technologies and interpret the term “maternity” broadly. Rama Pandey v. Union of India highlighted the rights of commissioning mothers, emphasizing the need for an inclusive approach to surrogacy arrangements.
2. Addressing Legislative Oversight:
The recent Social Security Code of 2020 inadvertently omitted gestational surrogates from maternity benefits. Parliament should amend the legislation to explicitly include gestational surrogates as eligible beneficiaries of maternity benefits.
3. Upholding Fundamental Rights:
Extending maternity benefits to gestational surrogates aligns with fundamental human rights, including the right to dignity, bodily autonomy, reproductive choice, and maternal healthcare protected by the Indian Constitution.
4. Economic and Social Implications:
The exclusion of gestational surrogates may discourage the practice of surrogacy or disproportionately impact a specific segment of the working class. By including gestational surrogates in the maternity law, we promote equity, social justice, and economic well-being.
5. Proactive Legislative Action:
Parliament should take proactive measures to address this policy gap and avoid undue reliance on judicial interventions. By amending the fresh law, lawmakers can ensure that gestational surrogates receive adequate social security and protection.
6. Comprehensive Implementation Guidelines:
Developing guidelines for the implementation of maternity benefits for gestational surrogates is crucial. These guidelines should consider the unique circumstances of surrogacy arrangements, address issues such as nursing breaks, and define the division of pre and post-natal entitlements.
7. Public Awareness and Education:
Conduct public awareness campaigns and educational programs to inform the general public about the rights and challenges faced by gestational surrogates. By dispelling misconceptions surrounding surrogacy, society can foster inclusivity and empathy.
8. Stakeholder Consultation:
Engage with various stakeholders, including experts in reproductive health, legal professionals, and advocacy groups, to ensure a comprehensive and well-informed approach to addressing the issue of maternity benefits for gestational surrogates
Author I: Anjali Jena, Institution: National University of Study and Research in Law, Ranchi. Course. B.A. LL.B. (Hons.)
Author II: Himanshu Institution: National University of Study and Research in Law, Ranchi. Course: B.A. LL.B. (Hons.)