Tuesday, August 12, 2008

Our Personal Laws are out of sync.....

Those who have been following the travails of the baby born to a surrogate mother of Japanese nationality can only feel sympathy for the infant with three mothers but cared for by a grand mother. The father, Dr Yamada, got the baby conceived by one woman, had the baby born through a surrogate mother and then divorced his first wife and remarried. Along the way, he created a legal tangle which he still has not been able to disengage from.

Although India has become the favored destination for those who are looking for surrogate mothers for their yet to be born babies as more and more Indian women are prepared to go through surrogacy, the laws have not kept up adequately to cope up. Of course it is another matter that the reason that India’s laws being so lax and medical expenses being affordable and wombs being so readily available that has contributed to India’s rise as the favored destination for surrogate pregnancies.

On the odd occasion, having antiquated laws can be of help too. There is a story that the reason that the cable TV revolution and the mobile telephony revolution took off so well and so fast in India is because the laws governing these in the initial days was the 19th century Indian Telegraph Act. The law regulating cable television was enacted only in 1995 by which time cable television was firmly entrenched. Similar is the case with mobile telephony – by the time the relevant telephony was firmly entrenched and had proved itself to be a boon.

But when it comes to personal laws and laws governing family life, such a delay can lead to numerous heart aches. For instance in the case of little Manji, there are several cards stacked against the baby. For instance, though India is the land of the great surrogacy bazaar, there are no laws governing surrogacy in the country and the surrogacy bill meant to regulate it is pending in Parliament. In its absence, the laws that apply quite mirroring the situations cited earlier- are the laws governing adoption- and principally when it comes to foreigners ,it would be another 19th century legislation – the Guardians and Wards Act of 1890

Laws in India are paradoxical because they seldom seem to be in sync with society. On hand we have laws which society has not fully accepted like the laws banning child marriage which are flouted with impunity on occasions like akshya tritiya. Look at the data: According to UNICEF, 82 percent of girls in Rajasthan, where the practice is particularly widespread, are married by 18; 15 percent of girls in rural areas across the country are married before 13; and 52 percent of girls have their first pregnancy between 15 and 19.

Or look at Sati an act whose practice and glorification has been banned on many occasions. Historically, efforts to prevent Sati by formal means were extent even before the Moghul rulers came to power. Yet as we all know and read about, sati still happens clandestinely in the country in conservative communities from time to time.

On the other hand, in matters of adoption, succession, divorce and many others including surrogacy society has moved far ahead but laws have not. The adoption laws for all but Hindus are antiquated; The Supreme Court of India, has only in 2007 accepted a petition to make provision for Christians to be able to adopt children legally and the journey ahead is long for Muslims who have not yet even begun. Similarly the divorce provisions for Christians which was codified in 1869 were modified only in 2003 to reflect modern social realities and again the journey has not even begun for Muslims. And then of course we have not even begun thinking properly about emerging areas like surrogate parenting and all that.

Some times I wish that the Uniform Civil Code hadn’t got bogged down in religion based politics and got buried for ever. While the men go and fight out petty battles to score petty points and bills keep pending in parliament, women and children suffer… like Manji, the daughter of Dr Yamada.

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