Kochi: Kerala High Court on Tuesday held that there should not be any discrimination against a woman employee who had a baby through surrogacy while extending maternity benefits.

Justice Dama Seshadri Naidu observed that P. Geetha, deputy general manager of Kerala Livestock Development Board, who had a surrogate baby, was entitled to maternity leave.

But the court made it clear that the petitioner was entitled to post-delivery leave and she could not extend it in the name of health. The petitioner did not bear the child and she could not insist on leave for convalescing and regaining her health.

Ms Geetha had lost her son in an accident and her uterus was removed. Later, she and her husband decided to go for surrogacy, but the department denied her maternity leave. Her surrogate baby was born on June 18, 2014.

The department denied her maternity leave and subsequently she moved the court.

“There should not be any discrimination on account of women having a child through surrogacy. Surrogacy is not illegal in the country. All the international and domestic declarations only establish that there should not be any discrimination towards a surrogate or genetic mother,” the court held.

It observed that child-specific statutory benefits, if any, could be extended to the petitioner.

Thushara James, appearing for the petitioner, argued that there could not be any justification for refusing maternity leave for the reason that the baby was born thorough a surrogate mother. She also contended that motherhood was an integral part of womanhood and with the advanced Assisted Reproduction Methods in place, one could not cling to the traditional meaning of maternity.

“The women, who had a baby through surrogacy, should be treated as natural mothers and they should not be discriminated merely on the ground that the mother did not bear a child in her womb,” she said.

The Livestock Development Board contended that at present there was no law to mandate surrogacy and that the Board had given the petitioner extraordinary leave of 62 days.