Shimla: The Himachal Pradesh High Court has ruled that government employees who become mothers through surrogacy — both surrogate and commissioning mothers — are entitled to 180 days of maternity leave, equating their entitlement with that of women who give birth naturally.
Bench cites central leave rules, rejects requirement for state adoption
A bench led by Justice Ajay Mohan Goel found the entitlement within the scope of Rule 43(1) of the Central Civil Services (Leave) Rules, 1972. The court held that the right to maternity leave cannot be denied simply because a child has been born through surrogacy, observing that the provision of maternity leave is for the benefit of both the mother and the newborn.
The ruling came while hearing a petition filed by a government doctor who had become a commissioning mother through surrogacy on two occasions and was denied maternity leave by the state. The Himachal government had justified the denial by saying it had not adopted a Department of Personnel and Training (DoPT) notification issued on 18 June 2024, which amended the CCS (Leave) Rules to provide that where surrogacy is involved, the surrogate as well as the commissioning mother, with fewer than two surviving children, may be granted 180 days' maternity leave if either or both are government servants.
However, the court held that an earlier division bench judgment on the issue had attained finality and was binding on the state government. Consequently, the court concluded that the state need not separately adopt the DoPT notification before extending maternity leave to surrogate or commissioning mothers.
"The fact of the matter remains that a mother is a mother, be it by giving birth to a child naturally or being a commissioning mother. The maternity leave, as is provided in the CCS (Leave) Rules is obviously both for the benefit of the mother as well as the newly born child," the bench observed.
Legal and administrative implications
The judgment clarifies two points of administrative practice and law as applied to Himachal Pradesh government servants:
- Surrogate mothers and commissioning mothers who are state employees are to be treated on par with biological mothers for the purpose of maternity leave.
- The state government cannot withhold maternity leave on the ground that it has not formally adopted the DoPT notification, where binding judicial precedent already establishes entitlement.
The bench noted that the leave under the CCS rules is designed to secure the welfare of both the mother and the newborn, and that policy reasons for granting adoption leave in cases of child adoption support similar treatment where surrogacy is involved.
Background of the petition
The petition was filed by a government doctor who had become a commissioning mother twice through surrogacy and was refused maternity leave by the state. The DoPT notification of 18 June 2024 amended the CCS (Leave) Rules to expressly provide maternity leave to surrogate and commissioning mothers subject to certain conditions; the state had argued it needed to adopt that notification before applying the amendment to its employees.
The high court disagreed, relying on the binding effect of a prior division bench judgment and the interpretation of Rule 43(1), and directed grant of the leave accordingly.
What the decision means for employees and administrations
For government women employees in Himachal Pradesh who become mothers through surrogacy, the ruling removes administrative uncertainty about leave entitlement. It also signals that state authorities cannot refuse central-rule-based benefits where a judicial ruling has already settled the legal question.
The judgment may prompt other state governments to revisit any internal policies that withhold maternity benefit from surrogate or commissioning mothers, particularly where earlier judicial determinations are on record. It also draws attention to the interplay between central notifications and state-level adoption when service conditions are concerned.
The court's order focused on legal entitlement and did not set out specific administrative directions beyond recognising the leave entitlement as applicable under existing rules and binding judicial precedent.
