Topic 1 : A chilling effect on the freedom to love
Context
On February 7, 2024, the Uttarakhand Assembly passed the Uniform Civil Code of Uttarakhand Bill, 2024, which purportedly consolidates a common law on marriage and property inheritance.
About
- The Bill only awaits the President’s assent to become enforceable law.
- A problematic feature of the Bill is the mandatory requirement of registration of a live-in relationship and its criminalisation, if certain conditions are not complied with.
- With this mandate, the proposed law will become the foremost weapon of the state to penalise consensual relations and violate individual autonomy.
Its ambit
- The Bill, requires live-in partners to submit a ‘statement’ to the Registrar concerned.
- The Registrar has the powers to examine the statement and conduct an inquiry into the relationship.
- From a reading of the Bill, it appears that anyone can inform the Registrar of a live-in relation, which she can then act upon.
- She is empowered to examine the consent of parties, marital status, and the age of partners.
- Moreover, partners can be required to make a personal appearance and the Registrar can also refuse to register the relationship.
- Termination of a relationship also requires notice to be submitted.
- Another dangerous feature of the Bill, however, is the criminal penalty — of imprisonment or fine (or both) — if this statement is not filed.
- The couple will be penalised for the submission of false information.
- The Registrar will inform the details of the live-in relations to the police station whose jurisdiction governs the couple.
- The Bill misses the foundational reason for a live-in relationship, which is that it lacks the formal structure and obligations of a marriage.
- Those who are living together, therefore, enjoy autonomy in their consensual partnerships, which a regulated marriage does not.
- In a society that thrives on moral policing of young couples, the Bill, unsurprisingly, imposes a chilling effect on live-in partners and implicitly discourages such relationships.
- The involvement of the police accelerates this concern. Couples will be wary of entering into genuine relationships since a lack of compliance not only invites civil consequences, as regulatory laws routinely require, but also criminal ones.
Unprincipled criminalisation
- A democratic liberal state must have a clear policy on what it chooses to criminalise and what it does not.
- This policy must be in consonance with what the Constitution protects. The fact that social practices are undesired by a conservative majority is an insufficient reason for criminalisation.
- As the philosopher Joel Feinberg recognises, “Indeed, everything about a person that the criminal law should be concerned with is included in his morals. But not everything in a person’s morals should be the concern of the law.”
- Translating moral prejudices into criminal legislation leads to what is called ‘unprincipled criminalization’.
The danger of greater discrimination
- Inter-caste and inter-religious couples face the prospect of severe harassment by the authorities and social stigma in our country.
- These couples often experience violence, which includes honour killings, as data show.
- A proposed law with a high regulatory content on live-in relations is most likely to affect vulnerable couples first.
- They will be indirectly discriminated against and targeted for the reason that they belong to the ‘wrong’ ‘religion or ‘caste.’
Conclusion
With the Bill incorporating provisions against live-in relations, the state has just demonstrated that there is no limit to how intrusive it can be. With no hesitation, it has chosen to violate the constitutional rights granting autonomy, privacy and equality.
Topic 2 : Why were surrogacy rules modified?
Context
- The Union government on February 21 modified the Surrogacy (Regulation) Rules, 2022, to permit married couples to use donor eggs or donor sperm for surrogacy — a move that provided a big relief to those with medical complications.
Revocation
- This revoked a previous amendment made in March 2023 that banned the use of such donor gametes.
- This has now been amended by a notification of the Ministry of Health and Family Welfare allowing married couples to use a donor gamete on the condition that a District Magistrate Board certifies that either the husband or the wife suffers from a medical condition.
- However, the notification outlines that the child to be born through surrogacy must have at least one gamete from the intending parents.
- This implies that a married couple where both partners are unable to use their gametes due to an existing medical condition cannot opt for surrogacy.
- The change is however not applicable to widowed or divorced women. The modified rules state — “Single woman (widow or divorcee) undergoing surrogacy must use self-eggs and donor sperms to avail surrogacy procedure.”
Supreme Court say
- Last year, the 2023 amendment was challenged before the Supreme Court by a woman suffering from the Mayer-Rokitansky-Kuster-Hauser (MRKH) Syndrome.
- MRKH Syndrome is a rare congenital disorder that affects the female reproductive system.
- This condition is characterized by an underdeveloped vagina and uterus. The uterus may be small or absent and the vagina is typically shortened.
Single women and surrogacy
- The regulatory change is however not applicable for single women as it specifies that a widow or a divorcee undergoing surrogacy must use self-eggs and donor sperm.
- This comes even after questions are being raised in Indian courts over the exclusion of single women from using surrogacy to have children and the resultant discrimination.
- A petition has been filed in the Delhi High Court by a 44-year-old unmarried woman challenging provisions of the 2021 Act on the ground that the restrictions are violative of her fundamental rights under Articles 14 (right to equality) and 21 (right to life) of the Constitution.
- Questioning the association of marital status with the eligibility for surrogacy, the petitioner has pointed out that at her age, the use of donor eggs is recommended by medical practitioners.
- Experts have also criticised the restrictions on access to surrogacy by single persons, live-in couples, and LGBTQ couples.
Way forward
By focusing on inclusivity, ethics, and medical advancements, India can establish a robust legal framework for surrogacy that respects individuals' rights, ensures the well-being of all parties involved, and supports those seeking to start families through assisted reproductive technologies.