Punjab govt has decided to provide maternity leave with full pay upto 180

days or 26 weeks to female employees who want to have child through

surrogacy as well as to those female employees who would bear the child of
another woman. The decision has been taken considering the fact that with
the advancement of technology, some female employees are taking the
surrogacy route to procreate child.

“The govt has decided that the maternity leave will also be admissible to the
commissioning mother i.e. the female employee who engages the services of
another female to conceive a child with or without the genetic material being
supplied by her &/or male partner...,” reads the directions. The directions also
make it clear that the maternity leave would also be admissible “to the
surrogate mother i.e. the female employee who bears a child on behalf of
another woman either from her own egg fertilized by the other woman's
partner or from the implantation in her uterus of a fertilized egg from the
other woman.” The maternity leave will be admissible on the same terms &
conditions as prescribed for maternity leave admissible to a female employee
under Rule 8.127(a) & 8.127(b) of Punjab Civil Service Rules.

KRILL V. CUBIST PHARMACEUTICALS

Sept. 2, 2011 — -- In a case that mixes reproductive technology, family

law and employment law, a woman who used a surrogate to give birth
to her twins is suing her employer and a senior human resources
analyst in a U.S. District Court in Massachusetts for refusing to grant
her paid maternity leave.

Kara Krill, a clinical business manager on New York's Long Island, has
claimed breach of contract, breach of good faith and fair dealing,
discrimination on the basis of her disability and gender, and negligent
misrepresentation on the part of Cubist Pharmaceuticals,
headquartered in Lexington, Mass. She seeks an injunction and
compensatory and punitive damages for employment law violations.

Krill, who developed a reproductive disability called Asherman's

syndrome after she gave birth to her first child in June 2007, and her
husband hired a surrogate mother, or gestational carrier, to carry and
deliver their second child. After learning the gestational carrier was
pregnant with twins in November 2010, Krill informed her employer
that she expected to go on paid maternity leave when the twins were
born in May 2011, according to the suit.

Krill and her husband also obtained a prebirth order that "established
the legal and genetic parentage of Krill's twins without having to
institute adoption proceedings," according to court documents.

When Krill had her first child in June 2007, she received 13 weeks of
paid leave under Cubist's maternity leave policy.

But a Cubist human resources analyst informed Krill she would be

entitled to five days of paid leave under Cubist's adoption leave policy
and not any paid leave under Cubist's maternity leave policy. The
company provides adopting parents who work 20 hours or more per
week five paid days of leave plus up to $4,000 in expenses for the
adoption, according to court documents. The company's paternity
leave policy also provides male employees who work 20 hours or more
per week five paid days of leave.
In an email to the human resources employee, Krill complained about
what she said was discriminatory treatment.

"As we have previously informed you, the children being born are
mine and were conceived with my husband. They are only being
carried by [a gestational carrier] as a result of my physical disability. ...
Cubist's treatment of me differently than other employees having
babies is not fair and is placing me in an untenable condition," she
wrote, according to court documents. "But for my physical disability, I
would be receiving the paid maternity leave offered by Cubist.
Accommodating my disability would not require [Cubist] to provide
me with any more benefit than other mothers."

The suit also claims that Krill's direct supervisor subjected Krill to
"verbal harassment and other adverse treatment," "frequently"
patronizing Krill about her disability. Her supervisor "told her
pointedly on several different occasions that she should not be entitled
to any leave from Cubist for the birth of her children, whether paid or
unpaid," according to court documents.

When Krill informed her supervisor she was required to be with her
newborn children for a minimum of 12 weeks, her supervisor told Krill
that she could "'put [her] twins in daycare,' so she could come back to
work sooner.'" Her supervisor also informed Krill she was "changing
her sales quota expectations and taking away one of Krill's largest
customer accounts and assigning it to another Cubist employee who
was not disabled, and not going out on maternity leave."
Francis McLoughlin, director of corporate communications at Cubist,
said the company could not comment on ongoing litigation but that
Cubist "tries to maintain positive work relations at the company."

The Boston Globe has included Cubist in its annual list of Top Places
to Work in Massachusetts for the past three years. The pharmaceutical
company ranked 24th among midsize companies and was the highest-
ranking public life-sciences company in its category in November
2010.

Charles F. Rodman, Krill's attorney, said she was "anxious" for the
federal court to determine her claims.

"Kara Krill unfortunately suffers from Asherman's syndrome, a

pregnancy-related medical condition that prevents her from giving
birth, and is therefore protected under the Pregnancy Discrimination
Act and the Americans With Disabilities Act," Rodman wrote in an
email to ABCNews.com. "One who suffers from discrimination on the
basis of her sex-including medical conditions related to pregnancy is
entitled to relief from such discrimination under federal and state law.
Ms. Krill was denied paid maternity leave because she gave birth
through a gestational carrier."

June Carbone, a law professor at the University of Missouri-Kansas

City School of Law, called this a "tough case."

"I can't see that an employer would be able to provide women with
maternity leave for the purpose of bonding with a child, where the
woman has not given birth, and not be obligated to provide men with
the same benefit," said Carbone. In other words, the company could
take the same position with Krill as it does with new fathers -- that she
doesn't need physical recovery time.

But, Carbone said, Krill would "clearly" be entitled to 12 weeks of

unpaid leave under the federal Family and Medical Leave Act, and
harassment for that is "inappropriate."

"She may have a decent case that the employer promised her 13 weeks
of paid maternity leave, since she is a legal mother who did not adopt,
and that she relied on that promise, though the law generally requires
that contract not be interpreted in a way that would make it
discriminatory," Carbone said.

Naomi Cahn, a law professor at George Washington University who

has written law review articles on family law, feminist jurisprudence
and reproductive technology, said, "This is certainly one of the first
federal cases involving a claim to benefits for paid leave by a woman
who has had children through a surrogate. It raises complex issues
about parental leave, assisted reporductive technology and
employment discrimination." She believes that cases like Krill's will
become more common as surrogate births increase, but the number of
surrogate births per year is hard to pin down.

"Not all places that engage in surrogacy report, so they're not going to
have complete statistics. It's very hard to collect statistics on this,"
Cahn said. The Society for Assisted Reproductive Technology reported
fewer than 300 surrogate births in 2006.

Elena Mauer, site editor of TheBump.com, said surrogate births

became more popular after celebrities began having them, including
actresses Sarah Jessica Parker and Nicole Kidman.

"Our stance is that this is a new mom, and she deserves maternity
leave. You deserve time to bond with your children, and it's a really
important time for bonding and for feeling like a family together," she
said.

Gaia Bernstein, a law professor at Seton Hall University School of Law

in New Jersey, said when surrogacy agreements are enforced the law
treats the intended mother as the mother "in all respects.

"The purpose of a maternity leave is not just to enable the mother to

recuperate from giving birth but to enable her to bond with the baby,"
Bernstein said. "This is even more important for a mother who did not
bond through pregnancy."

A classic example of application of the updating of construction principle, is the judgement, in the case

of Fitzpatrick vs Sterling Housing Association Ltd, 1999 (4) All E.R. 705, where the word ‘family’ was read

to include two persons of same sex who were cohabitating and living together for a long period of time

with a mutual degree of inter-dependence

, under Article 45, State has an obligation to provide early childhood care.

Article 6 of the UNCRC provides that the States, which are party to the Convention, shall recognize that

every child has the inherent right to life. A State-party is thus obliged to ensure, to the maximum extent

possible, the survival and development of the child. Undoubtedly, India is a signatory to the UNCRC. 21.2

There is no municipal law, which is in conflict with the provisions of Article 6 of the UNCRC. The State,

therefore, is obliged to act in a manner which ensures that it discharges its obligations under the said

Article of the UNCRC

Maternity leave act

The Maternity Benefit Act provides that a woman will be paid maternity
benefit at the rate of her average daily wage in the three months preceding
her maternity leave. However, the woman needs to have worked for the
employer for at least 80 days in the 12 months preceding the date of her
expected delivery.
The Maternity Benefit Act originally provided maternity benefit of 12 weeks,
out of which up to six weeks could be claimed before delivery. In 2017, the
law was amended to extend the period to 26 weeks. Out of the 26 weeks, up
to eight weeks can be claimed before delivery. However, you need not
structure your leaves in this manner—you can instead take the entire 26
weeks of leave after the delivery. Also, these are maximum periods of claim
and you can claim the benefit for a smaller period as well.
If the woman has more than two surviving children, the maternity benefit is
for 12 weeks only. The law was also amended to extend maternity benefits to
commissioning and adoptive mothers who are now entitled to 12 weeks of
leave from the date the mother receives the child.
Judgment of Hon‟ble High Court of Chhattisgarh at Bilaspur in W.P. (S)
No.101/2017 titled Devshree Bandhey v. Chhattisgarh State Power Holding
Company Limited & others decided on 20.02.2017, wherein it has been held as
under:-

"24. Maternity means the period during pregnancy and shortly after the child's
birth. If maternity means motherhood, it would not be proper to distinguish
between a natural and biological mother and a mother who has begotten a child
through surrogacy. The object of maternity leave is to protect the dignity of
motherhood by providing for full and healthy maintenance of the woman and her
child. Maternity leave is intended to achieve the object of ensuring social justice to
women. Motherhood and childhood both require special attention. Not only are the
health issues of the mother and the child considered while providing for maternity
leave but the leave is provided for creating a bond of affection between the two.
25. Right to life under Article 21 of the Constitution of India includes the right to
motherhood and also the right of every child to full development."

Judgment of Hon‟ble Delhi High Court in Rama Pandey v. Union of India &
others, 2015 (221) DLT 756 wherein it has been held as follows:-

"24. In view of the discussion above, the conclusion that I have reached is as
follows :-
(i). A female employee, who is the commissioning mother, would be entitled to
apply for maternity leave under sub-rule (1) of Rule 43.
(ii). The competent authority based on material placed before it would decide on
the timing and the period for which maternity leave ought to be granted to a
commissioning mother who adopts the surrogacy route.