Declare newborn’s right to mother’s milk a fundamental right & make breastfeeding mandatory: Madras HC seeks Centre view

In an interesting sequence of events, Madras High Court while posing queries to the Centre asked why an Act can’t be brought making breastfeeding obligatory as has been done by the UAE government. The Court further sought to know why right of newborn to mother’s feeding up to six months exclusively and up to 2 years along with substitutions can’t be declared as a fundamental right under Article 21 of the Constitution and as human right as per international treaties.

The Court was hearing a petition of a lady doctor who was denied PG medical admission on the ground that she has not completed two years of minimum service by excluding the maternity leave availed by her. To her relief, Court directed authorities to admit her in Diploma in Gynecology and Obstetrics for the academic year 2018-2019 without subjecting her to hassle of writing the examination of NEET again in 2018.

The Single Judge Bench of Justice N. Kirubakaran said: “This case would throw light as to how the government officials are acting contrary to the Rules, prejudicing the rights of women government servants like the petitioner. It is nothing but an incidence of woman harassment. Refusing to grant the legal benefit itself is an incidence of harassment of woman or discrimination of woman. The officials who are supposed to take decision need to be sensitized regarding the entitlement of maternity leave of women government servants.”

Coming with a strong statement over “human right” of a woman to conceive and give birth, the Court further added:

“No Act or clause or rule/condition would take away the fundamental and human right of a lady to conceive and give birth to a child and the consequential benefits like maternity leave, if she is an employed woman. If any such condition has been prescribed by the authorities, it has to be declared as null and void.”

Refuting the contention of the special government pleader that alone approved probationers were allowed to leave, Court said in strong words that “nature does not discriminate whether the woman was an approved probationer or unapproved probationer with regard to childbirth.”

Adding about benefits under the State rules, the Court said, “The very purpose of having maternity leave was to avoid hard labour or work at the time of pregnancy as it would be detrimental to the servant/employee and also the health of the foetus. Hence, benefits given under Rule 10 (a) of Tamil Nadu Fundamental Rules were equally applicable to the petitioner, an unapproved probationer and there cannot be any discrimination.”

Although the Court granted relief to petitioner and directed the authorities to treat her admission valid for the academic year 2018-2019, it kept the petition pending for other questions like “considering the general issue regarding the entitlement of a lady to conceive or procreate, avail maternity leave, which shall be considered as service period, irrespective of her status/position in the service and the right of the newborn to mother’s feeding exclusively for 6 months and up to 2 years along with substitutes.”

Referring to Articles 39 and 42 of the Constitution to buttress about maternity benefits for a woman, the Court said, “The International Treaties, to prevent the discrimination of women like ‘Convention on Elimination of all Forms of Discrimination against women’ (CEDAW), ‘International Covenant on Economic, Social and Cultural Rights’ (ICESCR) and ‘Convention on the Rights of Child’ recognize the rights of women, including entitlement of maternity leave. The Union Government is a signatory to recognize all these conventions and is bound to implement the said conventions.”

Union of India (Ministry of Law and Ministry of Women and Child Welfare), Commission for Women Development, Law Department and the Health and Family Welfare Department of the State of Tamil Nadu were suo motu impleaded by the Court in petition.

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