2015 saw a bitter battle to determine if the law should decide which human orifices are most appropriately employed consistent with "the order of nature" to achieve sexual fulfilment. It seems the later part of 2016 will be dictated to determining the manner and circumstances in which women may legally employ their wombs.
I kid you not! Look at the conditions being proposed in the Surrogacy (Regulation) Bill 2016. A couple can't have a surrogate baby till they are heterosexual, have been married for five years, one is infertile and they have no children. They can only employ a close "altruistic relative" who is "sympathetic to the situation" as surrogate, pay no money to the surrogate mother, have only one surrogate child, blah, blah, blah. If your essential DNA is liberal, you will doubtless find this very distasteful. Whose womb is it to use anyway? Indeed, you could argue that this is a typical illustration of our odious patriarchy dictating to women what they might do with their bodies. Should Eve Ensler now be inspired to write a Womb Monologue?
Regrettably, the entire matter is not quite that uncomplicated. Supporters of this new piece of legislation turn the critique grounded in patriarchy on its head by drawing our attention to the reality on the ground. In rural India, where the other half dies, Indian family life remains for the most part deeply patriarchal. Women don't own their bodies anyway. Commercial surrogacy has created a situation where men are now able to compel their wives to rent their wombs so that men may continue to play cards for the rest of their lives under the peepul tree before retiring in the evening for a quarter at the local theka. Feminists would like to argue that in truth, the law is structured to protect unwilling women from exploitation.
I am afraid the structure of this new law does not support the ostensible social objectives. If the law allows a village woman to have a dozen children with her husband should she wish to, there is no logical reason to prevent her from becoming surrogate mother to a dozen children should she wish to. If the law allows a couple to have more than one child, there is no logical reason why they should not be allowed to commission a second surrogate child. About the only truly legitimate concerns I can find in all the high pitched feminist rhetoric around the surrogacy debate are issues around free consent. Do women truly want to have someone else's baby? The question is as legitimate as the answer is indeterminable. How will the law truly determine whether a girl really wants to marry a particular man, leave alone have his baby? And if it can make that determination, what will the law do about it? If you can't find a way to regulate that, are you going to ban all marriages except under tightly specified conditions? That is so very grotesquely Kafkaesque.
I suspect that this new surrogacy law is grounded not so much in the sociological issues around it as it is in the disturbing moral landscape in which technological transformations are occurring. We are now at a point where we can transplant human body parts from one person to another. Already, we can use the body of one person to grow an entire baby body for another. Who is to say what comes next? We are confronted with a deeply disquieting question: what scale of values will determine how legislative choices will be made when regulating these revolutionary technological advances? Lurking in the background is the fear that already, markets are pre-empting too many choices that religion used to previously make. The real issue, then, is this: should the wave of market triumphalism we see sweeping across our land become the default legislative norm?
Take an example: following the passage of the Commercial Courts Act, the ability of wealthy businessmen to buy faster "business class" justice for a premium price has already become the new normal. If the rich can get faster justice, should they also not be allowed to enjoy better facilities while they are pursuing their legal remedies? Illustratively, shouldn't wealthy murderers confined to Tihar Jail (such as politicians) be entitled as of right to rent a luxury suite complete with climate control and top quality catering if they can afford it? There are justifications aplenty for allowing business class confinement in jail. At the very least, this revenue stream will compensate for the upkeep of some of the poorer inmates. On the other hand, there are arguments against it, too. If you stand accused of moral turpitude, is it appropriate for you to take a pleasant vacation while you avoid being condemned for your sins? If you allow this, you may as well allow the convict to buy his way out of jail. Shall we say Rs 1 crore for each year of sentence purchased? By that scale, the murderer who is convicted to a term of life in jail should be able to buy a Get Out of Jail card for the price of a reasonable-sized bungalow in Defence Colony New Delhi.
Clearly, a lot of people would agree with the idea that there are some things money should not be able to buy. Located within this issue is the larger ideological question: should market forces be forced to submit to moral limits? Our legislative history would lead us to believe that Indians do not as a general proposition take the view that markets make morally acceptable choices. This is the main reason we have created a plethora of laws in protection of the ostensibly defenceless. Take our industrial laws as an illustration: Workman's Act, Factories Act, Payment of Wages Act, Payment of Bonus Act, et al. What are these but attempts by our polity to surmount the amorality of the labour marketplace?
It's not just on the labour marketplace that we have tried to impose a public standard of morality. Private and family law is no different. Thus, the legitimacy of a child, the birth of a child, the ability to buy and sell a child, the right to education of a child, the power to marry a child, the right to public support of health, the right to extend life by medical intervention, trafficking of women and children, sex slavery, are all closely supervised by the law. Seen from this perspective, it is not the bedrooms of the citizens in which the law is grotesquely obsessed. It's in preventing the occurrence of social ills that represent a clear and present danger to the well-being of our citizens. Its real focus is the very real risk of our freedoms coming back to become our nightmares. Seen thus, the grotesque part of the new womb law is that inevitably, our social ills seem to lead us back to the darkness that seems to lie embedded deeply in our private space and souls.
The author is Managing Partner of the Gurgaon-based corporate law firm N South. His bestselling expose' of the real world of Indian courts "Legal Confidential", released in November 2015.