Introduction:

1. Jean-Louis de Lolme's popular assertion that English parliament can do everything but make a woman a man, and man a woman, may have illustrated the putative omnipotence of British Parliament, but science has gaily mocked at it, in course of time. Once IBM's Chairman predicted, wrongly though, that there would be a world market for may be five computers. Science never ceases to surprise us: it always outwits us, out- paces us; and makes us either change or become irrelevant. Law is no exception: the West is grappling with the same sex marriages; and most of the law enforcement agencies have been facing issues like virtual world vandalism, identity theft, and torrent copy right violations, to name a few. Now, we have to add to that, the split motherhood.

2. For Robert Brown all love begins and ends with motherhood, by which a woman plays the God. Glorious it is as the gift of nature, being both sacrosanct and sacrificial, though; now again, science has forced us to alter our perspective of motherhood. It is no longer one indivisible instinct of mother to bear and bring up a child. With advancement of reproductive science, now, on occasions, the bearer of the seed is a mere vessel, a nursery to sprout, and the sapling is soon transported to some other soil to grow on. Now, it is Law's turn to appreciate the dichotomy of divine duty, the split motherhood.

Facts:

3. Briefly stated, having joined just about a year ago, the petitioner is a Deputy General Manager working in the first respondent Board, a Government of Kerala undertaking. After remaining childless for over twenty years, the petitioner, along with her husband, had recently entered into an arrangement with a fertility clinic in Hyderabad, Telengana State, to have a baby through surrogate procedure. In fact, a baby was born on 18.06.2014 through a host mother, and handed over to the petitioner, the genetic mother.

4. With a view to looking after the new born baby, the petitioner is said to have submitted Exhibit P1 application for leave with effect from 19.06.2014 'as applicable for child birth in the normal process'. The first respondent, however, through Exhibit P2 letter dated 10.07.2014, informed the petitioner that the Staff Rules and Regulations do not permit any leave to the employees on maternity ground other than the maternity leave envisaged under 'normal circumstances'.

5. It appears that the first respondent has further informed the petitioner through Exhibit P3 letter dated 16.07.2014 that the petitioner could avail herself of loss of pay leave on medical ground. Under those circumstances, being aggrieved by the refusal of the first respondent to grant leave for the petitioner to look after her baby born through surrogacy process, the petitioner has filed the present writ petition.

Rival Contentions:

Petitioner's:

6. Dr. Thushara James, the learned counsel for the petitioner, has initially explained all the nuances of this emerging branch of maternity. She has submitted that in that particular arrangement the petitioner had, the surrogate mother only underwent the gestational process, without much of emotional quotient, as the petitioner and her husband remained the genetic parents. Thus, as per the arrangement, as soon as the surrogate mother had been delivered of the baby, it had to be handed over to the petitioner, and it was done. Now, a toddler of days could not be left to the care of others.

7. The learned counsel has drawn my attention to the treatment of the issue of surrogacy and the rights and obligations arising there from in international arena. According to her, in the USA different states have adopted different approaches, whereas in a country like Israel, it is state controlled. The learned counsel has also stressed that, though it sounds pejorative, now for many developed countries, India has become a destination for what is called 'Fertility Tourism'.

8. In the process of justifying the claim of the petitioner for m