Ratified treaty;¹ Instruments not subject to ratification²

Maternity leave/ Surrogate mother / Use of international law as a guide for interpreting domestic law 

The petitioner, K. Kalaiselvi, has been working as an Assistant Superintendent in the Traffic Department of the Chennai Port Trust for 24 years. After she lost her only son, she had a baby through a surrogate procedure. Following the birth of the child, she applied for maternity leave. However, she was informed that she was not entitled to maternity leave since she had had the child through a surrogate procedure, even though such a right was recognized for a person adopting a child as per Rule 3-A of the Madras Port Trust (Leave) Regulations. 

By referring to Article 25(2) of  the Universal Declaration of Human Rights, Article 6 of  the Convention on the Rights of the Child and Articles 17 and 33 of the Beijing Declaration and Platform for Action of the Fourth World Conference on Women, the counsel submitted that the petitioner was undoubtedly the mother of a female, minor child and that, in the interest of the child, the petitioner was entitled to have the leave granted in her favour. 

By reference to the above-mentioned international instruments as a guide for interpreting domestic law, the Court recognized the petitioner as the mother of the child and, in order to guarantee a proper bonding process between the child and the parents, it held that the petitioner was entitled to leave in terms of Rule 3-A. In particular, it held that: 

“The purpose of the said rule is for proper bonding between the child and parents. Even in the case of adoption, the adoptive mother does not give birth to the child, but yet the necessity of bonding of the mother with the adoptive child has been recognised by the Central Government. Therefore, the petitioner is entitled for leave in terms of Rule 3-A. Any other interpretation will do violence to various international obligations referred to by the learned counsel for the petitioner”.³

In conclusion, the respondent, Chennai Port Trust, was directed to grant maternity leave to the petitioner in terms of Rule 3-A.