Legal backing to rent a womb in India

This article has been written by Miracline Paul SusiMiracline Paul Susi.T is a 4th-year law student at School of Law, SASTRA University.

Surrogacy is a practice by which surrogate mother becomes pregnant and gives birth to a baby in order to give it to someone who cannot have children. While countries including Italy, Spain, Germany and France prohibit all forms of surrogacy, countries like Australia, the United Kingdom and Denmark, allow only altruistic surrogacy. Commercial gestational surrogacy, in which a woman who has no genetic link is paid to have a baby, is a growing trend in countries like India, Russia, Thailand, and Ukraine. After the first surrogate delivery in India in June 1994, India has steadily emerged as an international destination for commercial surrogacy. A study backed by the United Nations in July 2012 estimated the business at more than $400 million a year, with over 3,000 fertility clinics across India[1]. Though the ethical issues started at an early stage, the legal complications with regards to commercial surrogacy came only in the year 2008. A Japanese couple contracted an Indian woman to serve as a surrogate. But before the woman could deliver the child, the couple got divorced. The genetic father wanted the child’s custody, but Indian law barred single men from it, and Japanese law didn’t recognize surrogacy. In this landmark case the Supreme Court held that commercial surrogacy was permissible in India and the baby was ultimately granted a visa[2]. Surrogacy (Regulation) Bill 2016 proposed by the Health Ministry, banning commercial surrogacy came as a solution to this problem. The bill was cleared by the Union Cabinet on the 24th of August 2016 and is set to be introduced in the Parliament soon.

The draft bill provides for surrogacy as an option to parents who have been married for at least five years, either one of couple must have proven infertility. The age limit for the married couple ranges from 23-50 for female and 26-55 for male. Couples who already have biological or adopted children cannot commission a surrogate child. The bill clarifies the legal position of a child born of surrogacy by ensuring all legal rights as a citizen for the child. The bill bans egg donation. The surrogate mother has to be a married woman who herself has borne a child and is neither a non-resident Indian (NRI) nor a foreigner. Women can be surrogates only once and a married couple can only have one surrogate child. The couple should employ an “altruistic relative”, i.e. the surrogate mother should be a relative who is sympathetic to the situation. The bill restricts overseas Indians, foreigners, unmarried couples, homosexuals, and live-in couples from entering into a surrogacy arrangement.

Although the bill was passed with the intention of regulating the surrogacy, some of the clauses had outraged both the medical community and the general public. By allowing surrogacy for select classes of citizens the bill would violate citizens Fundamental Rights as laid down in Article 14 of the Indian Constitution. The idea of “altruistic surrogacy” expressed in the Bill greatly limits both potential surrogate mothers as well as couples wanting children.

The bill has ignored to discuss the issue of consent in detail. If a woman willingly consents to being a surrogate mother, is assured of a safe delivery; and the baby is assured of a safe home, why should she be limited to only one surrogacy? After the surrogacy industry boomed, a lot of women were dependent on the same. The issue here seems to be that the woman is “exploited” for her body. Surrogacy laws should be set out in such a way that full consent of the woman in question is assured. Here, instead of regulating the ways and policies in which a woman’s exploitation is prevented, what the bill has done is eliminate the idea entirely. The ban on egg donation in order to curb child trafficking and illegal surrogacy racket is only a blanket.  This situation cannot be resolved without censoring the entire industry[3].

Gay rights are still an evolving issue in India. While the Supreme Court is sitting on a review petition on Section 377 of the Indian Penal Code, pertaining to the status of gay rights, no clear legal stand on the issue has emerged. At this point the explicit stating of the ban of surrogacy to homosexual couples clearly shows the uncertainty of gay couple status in India.

The main issue is the question of disallowing commercial surrogacy and restricting foreigners from availing themselves of surrogacy in India. Since the inception of commercial surrogacy, a number of incidents have sparked unpleasant legal questions surrounding commercial surrogacy involving foreigners. In 2012, for example, an Australian couple who had twins by surrogacy arbitrarily rejected one while selecting the other. Such issues reveal the complexities that surround commercial surrogacy. There is need for discussing such complexities in the bill.

The draft Surrogate (Regulation) Bill seeks to comprehensively address the issue of surrogacy in India. This is indeed a step in the right direction. But the aim of bill will reach its fulfillment only when the above mentioned controversies are addressed.

[1] The Growth Of Surrogacy Industry In India And The Issues Surrounding It, 3rd October 2015, viewed at https://thelogicalindian.com/story-feed/awareness/the-growth-of-surrogacy-industry-in-india-and-the-issues-surrounding-it/

[2] Baby Manji Yamada vs Union Of India & Anr (2008) 13 SCC 518

[3] Malavika Ravi , A Critical Analysis Of The Surrogacy Regulation Bill 2016, 31 August 2016, viewed at http://feminisminindia.com/2016/08/31/critical-analysis-surrogacy-regulation-bill-2016/



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The Geospatial Information Regulation Bill: A short commentary

This article has been written by Torsha Sarkar. Torsha is a third-year law student in National Law University Odisha.

The Ministry of Home Affairs released a bill on 4th May, 2016, named ‘The Geospatial Information Regulation Bill’, which aimed to ‘regulate the acquisition, dissemination, publication and distribution of geospatial information of India which is likely to to affect the security, sovereignity and integrity of India’[1]. As per the act, the term ‘geospatial information’ would mean all geospatial imagery which has been obtained through aerial means, like satellites or airplanes[2].

A bare perusal of the Bill shows that the Bill proposes the creation of a ‘Security Vetting Authority (SVA)’, who would give general permission for any acquisition of geospatial imagery. Further, the Bill also suggests that all those who have already acquired the geospatial information as defined, should, within one year of the commencement of the act, make an application to the Security Vetting Authority (SVA) for permission to retain the same. Any contravention of the same would result in a large amount of fine, ranging from ten lakh rupees to one crore rupees.

Who does this Bill impact?

 

The short answer is, everybody who uses maps in apps. From regular Whatsapp usage, whereby we send our location to our friends, to bigger apps like Google, Ola, Zomato, Uber, and so on. Any app who uses maps as a major part of their services and functions would be severely impacted if this bill is enacted and made into a law. The ‘geospatial imagery’ they had obtained would be subjected to the SVA for approval, and there is already a worry in the minds of scholars regarding the fact that this approval is subject to the discretion of  SVA, which is a bureacratic body, and that the whole process might get caught up in red-tapism[3].

Further, a potential enactment of this bill would also hamper scientific and academic research. The sweeping ambit of the definition of ‘geospatial information’ includes maps, aerial images and so on. These are the primary tools of research for earth scientists, and if this bill is enacted, these tools would be taken away from them[4].

Criticisms of the bill

The release of this bill has drawn flak and criticism from the legal and academic sphere alike. The Centre for Internet and Society had released comments on the same where they had proposed that the bill should be scraped off completely[5]. According to them, there are already laws existing which regulate usage of geospatial information that may undermine the security of India. Laws like the Official Secrest Act, 1923, as well as policies like The National Mapping Policy, 2005, which restricts wrongful depictions of India’s international borders. Say the government wants to substantiate the policy with a law, even in such cases the law enacted should be much more different, and would have a much more limited apply[6].

What could be the possible changes suggested to the Bill?

There are several areas of the Bill which require to be changed. One of the foremost is lessening the ambit of the definition ‘geospatial information’. As per the definition mentioned above, the sweep of this definition would also include personal messages (like Whatsapp), as well any tweet, or any Facebook post where the user ‘checks in’ in places. All such exchanges would require the prior approval of SVA, and it is the opinion of the author that an argument of this being violative of freedom of expression can be successfully made.

Further, section 15 of the Draft Bill imposes penalties for wrongful depictions of the boundaries of India[7]. Again, the sweep of ‘wrongful depictions’ is too broad. Not only this penalises wrongful depictions with reference to external political struggle, but it also penalises the depictions of India in history books, or newspaper reports which refer to such struggle and show the map as proposed by the enemy forces. This potential situation would again be violative of freedom of speech and expression.

While one can argue that the legislative intention behind the Bill is to stop internationally hostile forces from depicting Indian borders wrongful for their own gain, still the Bill is draconian is ambit, and lacks reasonable foresight. It is argued by the author that if the legislative intention is such, the Bill should only be passed with heavier amendments which would narrow the scope of the Bill.

[1]     Ministry of Home Affairs, ‘Note to all Stakeholders and Citizens'<http://mha.nic.in/sites/upload_files/mha/files/GeospatialBill_05052016_eve.pdf&gt; last accessed 26 September 2016

[2]     The Geospatial Information Regulation Bill (2016) s. 2(1)(e)

[3]     K.N. Prudhvi Raju and Sarfaraz Alam, ‘The Geospatial Information Regulation Bill 2016’ (2016) 51 Economic and Political Weekly (Issue 31) 22, 23

[4]     id

[5]     Pranesh Prakash, ‘CIS’s Comments on the Geospatial Information Regulation Bill, 2016′<http://cis-india.org/internet-governance/blog/comments-draft-geospatial-information-regulation-bill-2016>  last accessed 26 September 2016

[6]     id

[7]     See n 2, s. 15


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Maternity Benefit (Amendment) Bill,2016

This article has been written by Sarvesh P. Giri. Sarvesh is a Bachelor’s of Engg in Electronics and Telecommunication, 2015 batch from Mumbai University and pursuing LL.B. from Gopaldas Jhamatmal Advani Law College, Mumbai.

BACKGROUND:

The women or the females have been the foundation for the initiation, establishment and furtherance of any existence in this universe. Initially, in India there was a dastardly attitude towards the female section of the society and that they were treated with merely as a reproduction unit but, now with the advancements in education, the approach has had a gradual change and that now the females are vested with certain liberties in every aspect as for instance; education and work.

Upon being granted these liberties, the women were succumbed to various issues and apprehensions because though they were granted liberties, there were certain biological issues which needed great attendance and that the same were matters of great sensitivity i.e. of the maternity.

INTRODUCTION:

A woman, considered as a revered entity in this universe, is gifted or imbibed with a special gift of reproduction for the furtherance of a family tree. Initially, in the archaic period, the women who stayed back home as she was not allowed to step out of the defined boundaries of the abode and that she was bearing a child in her womb was tendered and taken care of by the other members of the family parsimoniously. But in today’s era where women are excelling in every field and aspect ranging from cooking to running a family to administering a business or being employed in a Multi-National Company, the physical appearance of the females which enables them to bare babies in their womb and which is also a cause of hindrance in their careers or at workplaces as it is the matter of their subsistence.

Hence, upon considering to what is stated hereinabove, the Central Government articulated the most essential statute i.e. THE MATERNITY BENEFITS ACT, 1961, with the primary purpose to protect the race of women bearing such a big responsibility.

THE ESSENCE OF MATERNITY BENEFITS ACT, 1961:

The women stepping out of the defined boundaries of their abode are still vested with the natural gift of baring babies in their womb and that they were still needed protection in furtherance of their responsibility. They still needed certain expressed relaxation in order to carry out their maternal functions, hence in pursuance of the same the statute acted a boon for them thereby protecting their lives and race.

The statute articulated certain sections which very not only were in the interest of the females but also for the betterment of them having a pragmatic approach towards this biological matter.

Generally, when a woman is pregnant, the most essential question that takes over her mind is that what will she do of her job or will she be able to work bearing this responsibility in her womb and if yes, then how? But now with the enactment of this statute, females are entitled to certain relaxations during their pregnancy and that this statute creates mandatory obligations upon the employer to exercise the same in pursuance of the sections articulated in the Maternity Benefits Act, 1961.

As per this Act, the female employee having worked for a period of more than 160 days (inclusive of the probation period) in any establishment upon issue of notice to the employer of the establishment as defined under section 6 of this Act is entitled to a leave of 12 weeks i.e. 6 weeks prior to date of delivery including date of delivery and 6 weeks post the date of delivery as defined under section 4 of the said Act wherein the females are prohibited employment during the period of their pregnancy.

The other big question arising in the mind of a pregnant women is about the exorbitant medical expenses which one needs to bear during and post delivery. Therefore, this question was essentially also considered at the time of framing and enactment of this Act whereby any female employee being pregnant is entitled to disbursement of her wages at a rate of average daily wages immediately preceding and including the day of delivery and six weeks after the date of delivery, as articulated in section 5 of the said Act. The expression “wages” in this section of the said Act is valuated as the average of a women’s wage payable to her for the days she had worked during the period of 3 calendar months from the date from which she absents herself for the purpose of maternity.

CONSTITUTIONAL VALIDITY OF THE MATERNITY BENEFITS ACT, 1961:

The basic foundation of all the laws and statute in India is the Constitution of India having its foundation in year 1947 protecting the fundamental rights of every individual and embarking principles which every individual falling in the purview of citizenship under the said constitution.

In respect the constitution validity of this Act, the Central Government has enacted this Act keeping into mind the postulates articulated in the constitution.

The purpose of this Act is in consonance to the postulate articulated in this Constitution which ensures protection of the women and ensures their existence. Article 15(3) safeguards the rights of the women and their health. Similarly, the Article 39 which is a mandatory obligation upon the State to make policies in order to secure the economic justice wherein more particularly Article 39(e) which ensures health and strength to workers and also 39(f) wherein children are prohibited from material abandonment. This Act is also in consonance with Article 43A(3) and that this Act stands appropriate in all respect.

DOES THE EXPRESSION “WOMAN” ONLY MEAN THE FULL TIME FEMALE EMPLOYEE OR A FEMALE ON MUSTER ROLL OR REGISTERED SECURITY GUARD IN THE ESTABLISHMENT CAN ALSO FALL WITHIN THE AMBIT OF SAID ACT:

Considering the definition of “woman” under the maternity benefits act, 1961 means any woman employed be it directly or indirectly through any agency for wages in any establishment. But the question, that does this Act include the females in muster roll and the same question was answered in the leading case law of

Municipal Corporation of Delhi V/S Female Workers (Muster Roll)

wherein the Union of female workers filed a claim that the Municipal Corporation of Delhi employs ample no of female workers on muster roll basis and that the recruited were made to work together with the employees against the perennial nature. They further stated that the nature of work carried out by the recruited employees was of the same nature as that of the perennial nature and that the muster roll females have been employed with the Municipal Corporation since years and that they have been assisting the Corporation in carrying out the work of digging trenches, construction,etc., but, however, theirright to maternity leave was waived off every time they made a request for one.

The Corporation in their written statement in support of their stand states that a female employed in perennial nature of employment in an establishment is entitled to a maternity leave and as such the said muster roll females were not as they were on a daily wages basis.

However, the Court held that the females (muster roll) do fall in the definition of this Act as it has to be in consonance with the mandated provision of Constitution of India and that they do need protection and are entitled to maternity leave because the Corporation also falls under the purview of industry as rightly upheld in the case of Corporation of the City of Nagpur v. Its Employees and Others. 

The other question that does a female security guard lie under this Act and is she entitled to maternity benefits, however this question was fetched with a judicious answer in the case of

Krantikari Suraksha Raksha V/S State of Maharashtra &ORS wherein it was held that women who are registered security guard employees shall be entitled to maternity benefit provided they are women under said Act and in such a case the payment of wages is by the board constituted u/s 6 of Maharashtra Private Security Guard (Regulation of Employment & Welfare) Act, 1981.

NEED FOR THE MATERNITY BENEFITS (AMENDMENT) BILL, 2016?

Though this Act was in consonance with the objectives and motives articulated in the Constitution of India, there was a need to bring about certain amendment to the principal Act because of certain prime reasons: –

  1. The principal Act limited only to females bearing children in their womb and that the said child is their own and not subject matter of any contract to anyone. But then with the unavoidable situation of the certain families where the females are forced into surrogacy also needed protection of the ground of humane condition at workplace and that their health needed protection for their existence.
  2. The period of 12 weeks mandated under the Principal Act was needed amendment because upon observing and considering the biological aspect of this issue, the body of females undergo wear and tear and that the stipulated time of 12 weeks seems inappropriate in order to heal the said wear and tear and that the said maternity leave was extended from 12 weeks to 26 weeks.
  3. The other prime reason for the said extension from 12 weeks to 26 weeks is that the new born is just stepped out into open and that this is the time when he needs the attendance of the parents be it a mother or a father or both. The female undergoing a period of pregnancy needs the utmost care during the seventh months of this period and it is the most crucial period for a woman.
  4. The amendment bill unlike the Principal Act articulates section which widens the scope of the Act i.e. beginning from biological children to adopted children and surrogacy children, and that the mother would be entitled for a 12 weeks’ maternity benefits from the date of adoption or date of surrogated child.
  5. The amendment also considered the rising medical expenses of a pregnant mother and that the amendment articulates that if a female employee, if functioning in an establishment and that her nature of job is such that she can continue from home,than the female can continue her operation upon mutual agreement with the employer of the employer, thereby felicitating the “work from home” concept.
  6. Add provisions to unable the mother to have a watch over the new born child and also to perform or operate in the establishment it is mandated in every establishment to set up crèche in within prescribed distances as may be mandated provided that there are 50 or more than 50 female employees in the establishment and that they are allowed to visit the crèche four times a day which was penned down as the Section 11A in the amendment bill.

VIEWS ON THE BILL;

This bill as amended on the guidelines of the Principal Act which was already into consonance with the basic foundation of any Statute in India. The Principal Act, though in perfect tune with the mandatory object of the Constitution of India, was amended because of certain discrepancies in the perfect sections and that these discrepancies grew gradually with the time and change in generation.

Upon perusing the aforesaid amendment, this bill was upheld by majority of parliamentarians as it was the need of hour and was the most needed bill and the most awaited bill by most of the females in the society because their health’s were prejudiced in pursuance of this maternal function. But this bill was contended by the employers as a maternity leave of 26 weeks prejudiced the operation and functions of their establishments. They stated that with this the females in the establishment would be on leave for a majority period of time and that their operations would go standstill thereby causing loss to them.

CONCLUSION:

The amendment if perceived from a legal aspect stands appropriate and that is apt in all spheres and sub- spheres of legality not prejudicing any mandated provision of Constitution of India or any other Statute prevalent in India. Now considering the same bill on human grounds, it stands as a boon because it in no way prejudiced or harms the existence of female race in the society infact it is an essential step towards protecting them and their rights and also an assistance in performing their maternal functions.

This bill upon being perused with due diligence stands right in all respect and is definitely a boon to all females / women employed into any establishment ranging from a Parliament to an MNC to a labour job thereby widen or extending the purview of the Principal Act for females of the society.

REFERENCES:

  1. indiankanoon.com
  2. Constitutional Law of India – Dr. J.N. Pandey
  3. The Maternity Benefits Act, 1961 – Bare Act
  4. youtube.com

***

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Geospatial Bill & How it does affect us?

This article is written by Srishti Gupta. Srishti is a fourth-year law student from Vivekananda Institute of Professional Studies, GGSIPU.

 

 

The Ministry of Home Affairs on May 4, 2016, released a draft of ‘The Geospatial Information Regulation Bill, 2016’. The drafting of this Bill was repercussion of the attack in Pathankot airbase. Google conducts a contest called ‘Mapathon’ contributing to the mapping features of a city. In 2013, Vishal Saini was its winner and the city chosen by him was Pathankot. This resulted in a petition by Lokesh Kumar Sharma in the Delhi High Court where he sought directions of the Court to restrain Google from making available maps and images of sensitive and defence establishment. Then, the Additional Solicitor General assured the Bench that ‘steps are in progress to regulate the publication of aerial/satellite geospatial data.’ Hence, the draft was introduced.

The prime objective of the Bill is to regulate the acquisition, dissemination, publication and distribution of geospatial information of India which is likely to affect the security, sovereignty and integrity of India. It is applicable to all Indian citizens, even those outside the country, as well as “persons on ships and aircrafts, registered in India, wherever they may be.

In simple terms, it means that every bit of geospatial information has to be cleared for approval from the Security Vetting Authority appointed under this Bill. This information shall include every graphical or digital data, which can be as simple as a Facebook check-in or geo-tagging on Twitter or even a map for personal reference.

Any person who wants to use the geo-spatial information shall have to apply for a license with requisite fees within a year of enactment for the Bill. This also includes those who are already in possession of such information. However, that is not all. The Authority, having the power of refusal to grant such license, can take only as long as 3 months to grant the license. The most crucial ground for refusal is that the piece of information threatens “national security, sovereignty, safety and integrity.

Apart from having the right to revoke the license after giving an opportunity of being heard, there are penalties for using unlicensed geo-spatial information which includes a fine from Rs. 10 Lakh to Rs. 100 Crore and imprisonment for a period of 7 years.

It is admitted that there is need for reformation in this area as the National Map Policy is outdated but this idea is unlikely to take things towards a constructive impact. This Bill shall have an effect on every person and every business including Google, App based Cab companies like Uber, Ola. Basically, whosoever uses location as a major feature is likely to be affected with the coming of this Bill.

The Bill, however, is neither free from flaws nor consequences. The first one being that there is no amount prescribed as requisite fees for applying for a license which means it can vary from person to person. Secondly, maps are an essential resource for academicians. Institutions are likely to absorb the financial shock from students by hiking their fees. The Bill will have a major impact on start up businesses for which the geo-spatial information is essential and shall ultimately pass on their financial burden on to the customers. This Bill also covers individuals using geo-spatial information for private purposes and categorises it as illegal which is again a violation of their fundamental right of freedom of speech and expression as well as their right to privacy under Article 19(1) (a) and Article 21 respectively.

The Ministry of Home Affairs has not come out with a concrete statement on the Bill till date but had accepted comments on the draft until June 4, 2016.