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Commercial Surrogacy in India

BAN ON COMMERCIAL SURROGACY – INDIA Introduction:Commercial surrogacy refers to compensated surrogacy, whereby the surrogate mother is given some amount of compensation to carry a child in her womb in addition to reimbursement of everyday medical costs. After a debate of almost two years, the Surrogacy (Regulation) Bill was passed in 2019 declaring Commercial surrogacy to be illegal. What is Surrogacy?   Surrogacy is a process in which an intending couple hires or appoints a woman who is agreeing or willing to bear their child in her womb, provided the former would be the child’s parents after birth. Surrogate mother as defined in the Bill is “a woman bearing a child (who is genetically related to the intended couple) through surrogacy from the implantation of the embryo in her womb”. Surrogacy can be of the following two forms:Traditional surrogacy: In this form of surrogacy, the surrogate mother is the egg donor and the intended father or any anonymous man is the sperm donor. Hence, the child is genetically related to the above mentioned donors.Gestational surrogacy: In form of surrogacy, whereby the surrogate mother is not the egg donor. The intended mother or the egg donor and the intended father or the sperm donor, relate the child genetically. With the advent of in vitro fertilization (IVF), this is the most common arrangement made.Further, there are two main types of surrogacy:Altruistic surrogacy: In this type of surrogacy, the surrogate mother does not receive any monetary compensation apart from medical expenses and insurance. The surrogate mother is generally a close friend/family friend acting out of sincere help without any materialistic greed.  Commercial surrogacy: In this type of surrogacy, the surrogate mother is rewarded with monetary compensation for her services along with her medical expenses and insurance.Problems faced due to Surrogacy:It involves a lot of risks to the health of the baby.The health of the woman is a serious issue of concern.Surrogate mothers are often exploited.Abandonment of a child by the intending parents due to child of undesired sex or deformed/disabled child, and any such condition.After abandonment, the surrogate mother is refused to be paid.Catholicism does not allow surrogacy.   Women take up commercial surrogacy, generally to earn their living and clear their debts, thus, converting it into a business by risking their lives by subsequent surrogacy.The Surrogacy (Regulation) Bill, 2020:The Bill prohibits Commercial surrogacy but permits Altruistic surrogacy.The registration of Surrogacy clinics shall be suspended or cancelled lest they are registered by the appropriate authority.Ethical surrogacy’s conditions as defined in the Bill shall be:Either or both members of the couple are suffering from proven infertility.That it is only for altruistic surrogacy purposes.That it is not for commercial surrogacy purposes.That it is not for producing children for sale, prostitution, or any other form of exploitation.The National Surrogacy Board and the State Surrogacy Board or the Union Territory Surrogacy Board will be constituted which shall discharge their powers to monitor the implementation of the provisions and perform the functions conferred on the Board under this act.It is mandatory for the intending couple or woman to obtain a certificate of recommendation from the Board in such a manner as may be prescribed.A certificate of essentiality, i.e., proven infertility of either or both intending parents is required.The Regulation Bill of 2020 deleted the term “infertility” which was defined in the previous bill as incapacity to conceive after five years of unprotected intercourse. The Committee held it as inappropriate for the couple, to wait for a period of 5 years, who could not conceive.Sex selection of the child is prohibited and the new born child out of surrogacy shall be entitled to all the rights available to a natural child.Abandonment of a child born out of surrogacy by intending parents is strictly prohibited under any condition.Prohibition of storing human gametes for surrogacy purposes.In case of abortion of a surrogate foetus, only the consent of the surrogate mother is enough.Insurance of the surrogate mother and the surrogate child by the intending parents is compulsory.Any contravention of the provisions of this Bill shall be an offence punishable in accordance with law. Any person seeking commercial surrogacy shall be punishable with an imprisonment of 5 years along with fine which may extend up to five lakh rupees. Any offences which were subsequently performed shall be punishable with an imprisonment of 10 years along with fine which may extend up to ten lakh rupees.Eligibility Criteria for the Surrogate Mother:Age of the woman should be between 25 to 35 years.A married Indian woman who has a child of her own.A woman can be a surrogate only once in her lifetime.She should not receive any kind of monetary compensation or reward from the intending couple.She shall possess a certificate that states her medical and psychological fitness for surrogacy.She cannot provide her own gamete (egg) for surrogacy.Eligibility Criteria for the Intending Parents:   Only an Indian married couple of Indian origin or a single Indian woman (divorced or widowed) can be the intending parent(s).They should not have a child of their own.Either or both members of the intending couple shall have proven infertility.Age of the intending mother should be 23-50 years and that of the intending father should be 26-55 years. Certificate of eligibility, essentiality and recommendation issued by the appropriate authority to the intending couple is required. Conclusion:Summing up, after the legal ban on Commercial surrogacy, there are a lot of drawbacks pointed out by different people. One of the major drawbacks is the unavailability of surrogacy for the LGBTQIA+ community, live-in couples, singles, and divorced or widowed men. The Bill also limits eligibility to a great extent. 

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Same Work or Work of Similar Nature - Judicial Int...

Same Work or Work of Similar Nature – Judicial Interpretation IntroductionIn the Vedic Period, the society accorded equal statuses to men and women. The Indian culture historically had aligned equal status to men and women, disregarding their gender. The ancient scriptures and religious texts have often outlined numerous occasions were men and women played equal roles in the society. But this ideology had a paradigm shift through the ages of history. Due to this shift in ideology, the men became dominant in the society and overshadowed the women[i]. The idea of masculinity was associated with strength, dominance, hardworking, powerful, protector and it became the de-facto norm of the society, whereas the idea of feminity was associated with qualities such as submissive, weak, powerless, helpless, needed protection, etc. This societal notion that females were weak and needed protection and care of men, led to inequal and differential treatment of females. This inequal treatment became the norm of the society. At, the time of the independence, to combat this inequality, the constitutional framers realized that systems are required to address this problem and to ensure equality. The various provisions were inserted into the constitution to ensure equality among men and women, which became the bedrock ensuring that both men and women have equal opportunities. Providing with equal opportunities to both the gender is just half the work. True equality can only be achieved if both men and women are provided with equal remuneration for the same job irrespective of the gender[ii]. Through the modern era, the women are no longer employed in just menial jobs, rather they are actively seeking employment at par with their male counterparts. Therefore, in order to protect their interest, various legislation is enacted to ensure fair remuneration. The Equal Remuneration Act, was enacted with the sole intent of ensuring equal remuneration irrespective of gender. In the Act, the doctrine of ‘equal pay for equal work was inserted’. This doctrine is not a fundamental right but a constitutional right as held in the case of Kishori Mohanlal Bakshi Vs Union Of India[iii]. Though, the doctrine of ‘equal pay for equal work’ was introduced in The Equal Remuneration Act, the Indian Courts have played a major role in implementing the doctrine and enforcing the doctrine so that the particular class of people are benefitted[iv]. The case of Randhir Singh vs. Union of India[v] was landmark judgement on the doctrine. The Hon’ble Court opined and held that the Article 14 and 16 mandates that there should be equal pay for equal work. Similarly, the Hon’ble Supreme Court in the case Inder Singh & Ors. vs. Vyas Muni & Ors.[vi], held that when a two groups of people do same or similar work under and are employed under same or very similar posts, they are to be paid equally, and no unreasonable discrimination should be done to treat the groups differently if they are similarly placed. Therefore, the judiciary had time and again reiterated that for equal pay should be accorded for same or similar type of work. With time, in India more and more women are being employed into various sectors, both the remuneration provided to the women are still not equal to the men employed in the same work. The World Economic Forum Ranked India 108th/149 in the its annual gender gap index in 2019. This poor ranking of India evidences that the gender pay gap is still dominant in India. Even through the judiciary, time and again reiterated the doctrine, the gender pay gap is still dominant in the Indian economy[vii]. Therefore, it becomes paramount to understand flaws in the present legislations so that the reforms can be instituted in order to ensure that the gender pay gap is reduced. Constitutional Framework The Indian Constitution was framed with the idea of a society based on principles of justice, equity liberty and rule of law. The Indian Constitution was drafted incorporating international conventions. The constitution was aimed at creating an equitable and just society. The foreword to our constitution, i.e. preamble to our constitution assures our citizens that the state would try to eradicate all forms of the discrimination based on the place of birth, race color, caste sex, or any other form of discrimination, simultaneously assuring that dignity of each and every citizen as an individual would be upheld and respected by the state[viii]. This idea was adopted in the constitution under various fundamental rights and DPSP. Art. 14 of our constitution guarantees equality before law and equal protection of law. It prevents any kind of discrimination in matters of employment and employment benefits[ix]. The DPSP contained in our constitution directs the State to implement and enforce the doctrine of equal pay for equal work. Art. 39(d), specifically mandates that states to strive for equality in work and pay irrespective of the gender. The Constitution has also mandated the State to pass such legislation which will ensure that the equality in work and pay is maintained. The State through labor legislations and other protective legislations has to strive to implement the goals set out in our constitution. Legislative Framework The legislative in action to the Constitutional mandate and obligation had enacted the Equal Remuneration Act, in 1976 with the legislative intent of providing for equal remuneration for equal category of work irrespective of the gender of person performing the work. The Act was aimed at outlawing the practice of discriminative remuneration structure adopted by the employers in paying remuneration and wages to its employees based on the gender of the employees[x]. Prior to the enactment of this Act, the women employees had no real protection against discriminatory wage practices adopted by the employers. The situation of the women was despicable, as they were being paid considerably less, than their male counterparts for the same amount of work and job profile. The shortcomings of non-legislative protection was evident through the case of Kishori Mohanlal Bakshi v. Union of India[xi], wherein the court held that the even though the doctrine of equal pay for equal work is present, it is incapable of being enforced in the court of law, thereby requiring the legislature to enact specific legislation in order to give effect to the same. Acting on this shortcoming, the legislature promptly plugged in the legal loophole by enacting the Act, thereby according the legal protection to the women against the discriminatory practices adopted by the employers[xii]. The Sec. 4 of the Act gave effect to the doctrine of equal pay for equal work. Sec. 5 of the Act prohibited any discrimination in recruitment based on the gender. Sec. 6 of the Act mandated that an Advisory Committee to be established which shall recommend steps to increase the women employment. Sec. 7 of the Act empowered the appropriate government to set up Adjudicating Authorities which would decide on the claims of discrimination and non-parity in wages as complained by the complainant. The fundamental objective behind the enactment of Act is to provide for equal remuneration to an individual without any discrimination based interalia on Sex. Judicial Activism The implementation of the doctrine of equal work for equal pay can be largely attributed to the proactive role played by the judiciary in safeguarding the interest of the citizens. The Hon’ble Supreme Court in the case of Kishori Mohanlal had first held that the doctrine is constitutional right under the constitution, which directly led to the enactment of the Equal Remuneration Act. Further, another milestone in the enforcement of this doctrine was reached in the judicial pronouncement in the case of People’s Union for Democratic Rights v. Union of India[xiii], where in the Hon’ble Supreme Court held “is the principle of equality embodied in Article 14 of the Constitution which finds expression in the provision of the Equal Remuneration Act, 1976”.In the case of Randhir Singh vs. Union of India[xiv], the Hon’ble Supreme Court opined that the doctrine of equal pay for equal work is contained in the preamble and the right to equality contained in our constitution, and it forms an integral part of the right to equality. The Court held that the right to equality prohibits irrational classification based on the gender. Similarly, the Hon’ble Supreme Court in the case of Bhagwan Das v. State of Haryana[xv], opined that; a. remuneration for the same work cannot be varied on the pretext of irrational classification based on the gender of an individual; b. the equal pay for equal work also extends beyond gender based classification, a temporary or a contractual employee who is performing same duties as an permanent employee has the right for equal remuneration for the same work. Through this decision, the Supreme Court has not only accorded the protection of equal pay for equal work based on gender, but also expounded the ambit of the doctrine to include protection for contractual and temporary employees as well. This was instrumental in protecting the contractual employees, who had very less protection in terms of getting equal remuneration. All these cases, were instrumental in expanding the doctrine of equal pay for equal work, but it was the case of Mackinnon Mackenzie & Co. Ltd. v. Audrey d' Costa[xvi], wherein the Supreme Court, for the first time laid down the test for determining the “same work or work of similar nature”. This case has enabled us to understand the legislative intent contained under Sec. 4 of the Equal Remuneration Act. It also enables us to understand the role of judiciary in interpreting and expanding the ambit of a piece of legislation. In the backdrop of the case, it is paramount to understand and evaluate the case in length in order to better understand the scope of the meaning of phrase “same work or work of similar nature”. The Court interpreted the National legislation in harmony with the international charters and convention and opined that in determining the “same work or work of similar nature”, one has to take a broad view in order to decide whether to the works are similar or not. The Court held that what is needed is an objective evaluation of all the surrounding circumstances, conditions and limitations of the nature of the work in order to conclude whether two types of work are similar or not. This decision was instrumental in deciding the legal test in order to determine the meaning, ambit and limits of the phrase “same work or work of similar nature” as contained under Sec. 4 of the Act.   ConclusionEven though the sustained continued efforts of the legislation, executive and the judiciary, the problem of gender based pay disparity has existed in our society. The root cause of the problem can be traced back to the patriarchal notion of our society, wherein the women were considered as weak and inferior to the men. Though, this is no longer true, but the notion has persisted. The legislation has enacted various provisions to protect the interest of the women, and the judiciary had held that the right to equal pay for same work or work of similar nature is a constitutional right. Due to the protection offered by the legislation and its enforcement offered by the courts, the discrimination at the work place on account of gender based disparity is on the decline. But there needs to be lot more done[xvii].

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Ayantika Mondal @ Prime Legal

6 days ago

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