Labor of Love: Surrogacy rights and realities in the workplace

On 18th June 2024, the Government of India made a historic amendment by amending the Central Civil Services (Leave) Rules 1972. The amendment has provided for both surrogate and commissioning mothers who have less than two surviving children to be granted maternity leave for 180 days, in case either of them are government employee. The rule also includes paternity leave for the commissioning father who is a male government servant and can be granted 15 days of paternity leave within 6 months from the date of delivery of the child. This is a brilliant move by the Government to recognize the rights of surrogate parents. However, a lot has to be changed on how surrogacy leaves are viewed in Private Organizations as well. In this article, we will delve deep into the realm of surrogacy and the issues faced by them in the workplace.

Legal Status of Surrogacy in India

Surrogacy in India is governed by the Surrogacy (Regulation) Act, 2021. This law permits altruistic surrogacy, where the surrogate mother receives no monetary compensation other than medical expenses and insurance coverage during pregnancy. Commercial surrogacy, which involves payment beyond these expenses, is strictly prohibited. The Act aims to prevent the exploitation of surrogate mothers and ensure ethical practices in surrogacy arrangements.

However, the legal provisions have been criticized for being restrictive. Critics argue that the altruistic model limits the availability of surrogates and may not adequately compensate them for their time and effort. Despite these concerns, the law is a step towards formalizing and regulating surrogacy practices in the country.

The Current Maternity Benefit Act and Its Amendments

The Maternity Benefit Act, of 1961 is a socioeconomic piece of legislation aimed at providing social security benefits to women during their maternity journey. This Act applies to both private and government employees alike. A major amendment was enforced in 2017 through the Maternity Benefit Amendment Act, 2017, which brought significant changes:

1. The duration of maternity leave was increased from 12 weeks to 26 weeks for mothers expecting their first and second child. For women expecting their third child, the paid maternity leave remains 12 weeks.
2. The Amendment Act of 2017 also extends benefits to adopting and commissioning mothers. Women who adopt a child below the age of three months are entitled to 12 weeks of adoption leave from the date of adoption.
3. The option to Work from Home can be provided to mothers after the paid leave period of 26 weeks, subject to agreement with the employer.
4. Establishments employing 50 or more women must have an in-built creche facility, allowing mothers to visit the facility at least four times a day.
5. Employers must inform women about their maternity benefits at the time of appointment, both in writing and electronically.

Surrogacy Rights in the Private Workplace

1. No separate provision for commissioning mothers

In a bustling office in Mumbai, Riya ( a commissioning mother) sat anxiously at her desk, contemplating the upcoming arrival of her child through surrogacy. She called her surrogate twice to check if everything was going well. Riya, a project manager at a private tech firm, knew she would face an uphill battle to secure her maternity leave.

Riya's situation highlighted the inconsistencies in the private sector's surrogacy leave which is also a basic human right. While some progressive companies had already embraced similar policies, offering maternity and paternity leave for surrogacy, many others lagged behind, leaving employees like Riya in a state of uncertainty. Riya being a commissioning mother does not fall under the usual maternity leave policy, nor would she be eligible for adoption leave policy.

2. Lack of clear policies

Riya wanted to know if she could at least opt for work from home given the arrival of her child. However, she wasn't carrying the child and this can't come under the Maternity Benefit Act. The surrogacy laws weren't updated in her organization.

Riya’s firm was not alone in its hesitance. Many private workplaces still did not legalize leaves for surrogate or commissioning mothers, reflecting a broader challenge in the effective implementation of surrogacy rights. The primary issue was a lack of awareness and understanding among employers and employees about the rights and benefits available to commissioning parents. Ensuring that all parties were informed about the new regulations was critical for their effective enforcement.

3. The Fight for Inclusivity

Riya's story is not unique. Across India, many women and men face similar challenges. One major challenge faced by her was the potential for discrimination in the workplace.

Biases and misconceptions about surrogacy often lead to unequal treatment in the workplace. Employers needed to foster an inclusive culture that respects and supports all forms of family building, including surrogacy. Sidelining them from major work and not giving them equal pay is also one of the primary biases faced by surrogate mothers. This requires not only policy changes but also a shift in workplace culture and attitudes.

Conclusion

Surrogates are humans too. Riya’s story underscores the need for ongoing efforts to ensure that surrogacy rights, which are the basic human rights are understood, respected, and effectively implemented across all sectors. While the government’s legal amendments mark a significant step forward, the private sector must catch up. Promoting awareness, combating discrimination, and fostering an inclusive workplace culture are essential for realizing the full potential of these legal protections.

As India continues to advance in this area, the hope is that all parents, regardless of their path to parenthood, will receive the support they need to thrive both at home and at work. The best that we can do in workplaces is to treat surrogate mothers equal to any pregnant women and give them equal maternity rights, ensuring a fair and inclusive environment for all.

#surrogacy #humanrights #pregnancy

References

1. "Surrogacy (Regulation) Act, 2021" Economic Times
2. "Surrogacy Biomarkets in India: Troubling Stories from before the 2021 Act" : The India forum
3. "Surrogacy (Regulation) Act, 2021: Safeguarding Rights Of Women And Children Amid Challenges" Indian Politics and Law Review Journal
4. "Centre amends rules to allow six months maternity leave for staff in case of surrogacy" The Hindu
5. "Maternity benefits for surrogate mothers" The Economic Times
6. "What Happens If A Surrogate Changes Jobs During Her Pregnancy?" - American Surrogacy blog
7. "Legal framework for surrogacy in India" The Times of India
8. "Maternity Benefit Act, 1961" Ministry of Labour and Employment
9. "Maternity Benefit Amendment Act, 2017" PRS India