17 September 2024 : Indian Express Editorial Analysis

1. Pay the bearer

(Source: Indian Express; Section: The Editorial Page; Page: 10)

Topic: GS2– Governance

Context:

The article examines the constitutional and ethical concerns surrounding the Surrogacy (Regulation) Act and the Assisted Reproductive Technologies (Regulation) Act, 2021, particularly focusing on the prohibition of payments to surrogates and the need for fair compensation.

What is Surrogacy?

• Surrogacy is an arrangement where a woman, known as the surrogate mother, agrees to carry and deliver a baby for another individual or couple, known as the intended parents.
• Types:
• Traditional Surrogacy: Traditional surrogacy involves using the intended father’s sperm to fertilise the surrogate’s egg.
• The surrogate carries the pregnancy to term, and the resulting baby is biologically related to the surrogate mother and the intended father.
• Gestational Surrogacy: In gestational surrogacy, the baby is not biologically related to the surrogate.
• An embryo, created using the intended father’s sperm (or donor sperm) and the biological mother’s egg (or donor egg), is implanted into the surrogate’s uterus for her to carry to term.
• Surrogacy Arrangements:
• Altruistic Surrogacy: It refers to a surrogacy arrangement where the surrogate does not receive financial compensation beyond reimbursement for medical expenses and other related costs.
• The primary motivation for the surrogate in altruistic surrogacy is typically to help another individual or couple achieve their dream of having a child.
• Commercial Surrogacy: It involves a contractual agreement where the surrogate mother receives financial compensation beyond just reimbursement for medical expenses and other costs associated with the pregnancy.
• This compensation may vary depending on factors such as location, legal regulations, and the specific terms of the surrogacy agreement.

Concerns Around Surrogacy and ART Regulations

• Since the enforcement of the Surrogacy (Regulation) Act and the Assisted Reproductive Technologies (ART) (Regulation) Act in 2021, several constitutional concerns have been raised.
• These provisions are being challenged in the Supreme Court for their validity. The primary legal encounters with surrogacy in India occurred in the 2000s, where children born out of transnational surrogacy arrangements risked statelessness—a situation that led to the ban on transnational surrogacy in 2016.
• More recently, issues related to parental status, maternity leave, and eligibility for commissioning parents and surrogate women have been examined. However, despite the prohibition on commercial surrogacy, the regulation of payment for surrogates’ labor remains an unresolved issue.

The Prohibition on Payment and Its Implications

• The Surrogacy Act imposes a strict ban on any form of payment to surrogates beyond covering medical expenses and providing insurance. According to the Act, any woman between the ages of 25 to 35 can act as a surrogate altruistically but only once in her lifetime.
• This altruistic model includes covering medical costs and offering insurance to the surrogate. In exchange, the surrogate is required to relinquish all rights over the child after birth.
• However, this prohibition on monetary compensation has led to concerns over the exploitation of women, particularly poorer women who might have previously relied on commercial surrogacy as a source of income.
• The current system’s insistence on altruism may exacerbate exploitation, as it eliminates formal financial support, raising questions about the surrogate’s labor being uncompensated.

Debates Over the Ethicality of Payment and the Nature of Surrogacy

• A key argument against compensating surrogates is that it could amount to the sale of children. However, the earlier drafts of the ART Bills proposed a structured payment model that compensated surrogates for the service of gestation, which was clearly differentiated from payment for the child.
• The term “service” is carefully used in the Act to refer to what clinics provide, while women who act as surrogates are seen as offering “help” rather than a service.
• This subtle distinction has sparked debate: if surrogacy is a mediated practice involving medical intervention and labor, why can surrogates not be paid for this labor, especially when compensation is allowed in cases of death resulting from the process?

Legislative Scrutiny and Recommendations for Compensation

• Before the Surrogacy Act was enacted, it was examined by two parliamentary committees. The Rajya Sabha’s 102nd Report made key recommendations on the 2016 Bill, stressing the need for “reasonable compensation” for surrogates beyond medical and insurance coverage.
• The committee argued that pregnancy is not merely a biological process but a labor-intensive and health-impacting task, warranting compensation for lost wages, medical screening, psychological support, and post-delivery care.
• These recommendations reflect a broader understanding of surrogacy as labor that goes beyond altruism, calling for regulatory bodies to fix compensation rather than leaving it to the bargaining power of involved parties.

Challenges in Transitioning to Altruistic Surrogacy

• The shift from a commercial surrogacy model to an altruistic one has not been seamless. On one hand, there have been instances of surrogacy arrangements going underground, leading to the rise of illegal practices and surrogacy rackets.
• On the other, many prospective parents struggle to find willing surrogates due to the altruistic restrictions. These extremes highlight the need for fair compensation and better regulation to ensure that surrogates are not exploited while also allowing intended parents access to surrogacy.
• The current legal framework sidesteps these critical issues, leaving it to the Supreme Court to address the fairness of the compensation model.

Conclusion: The Need for Revisiting the Surrogacy Act

• The Surrogacy Act’s narrow focus on prohibiting payments to surrogates, while attempting to avoid exploitation, may inadvertently worsen conditions for surrogates.
• The legislative intervention has yet to adequately address the issue of fair compensation for surrogates, who provide essential labor.
• The Supreme Court’s future rulings on this matter will likely determine whether the current altruistic framework can be balanced with the need for equitable treatment and compensation for surrogate mothers.

What are the Other Provisions Related to Surrogacy in India?

Permissibility: Under the Surrogacy (Regulation) Act 2021, Surrogacy is permissible only for altruistic purposes or for couples with proven infertility or disease. Commercial surrogacy, including for sale or exploitation purposes, is strictly prohibited. Eligibility Requirements for Couples: Couples must be married for at least 5 years. The wife must be aged between 25-50 years, and the husband between 26-55 years. The couple must not have any living child, whether biological, adopted, or through surrogacy, except in cases of children with disabilities or life-threatening disorders. Surrogate Mother Criteria: The surrogate mother must be a close relative of the couple. She must be a married woman with at least one child of her own. Her age must be between 25-35 years, and she must have only been a surrogate once in her life. Parental Status upon Birth: Upon birth, the child is legally recognized as the biological child of the intended couple. Abortion of the fetus requires consent from both the surrogate mother and the relevant authorities, following the provisions of the Medical Termination of Pregnancy Act.

Practice Question:  Critically examine the impact of the Surrogacy (Regulation) Act, 2021, and the Assisted Reproductive Technologies (Regulation) Act, 2021, on surrogate mothers and commissioning parents. How do these regulations address or fail to address concerns of exploitation and ethical surrogacy practices? (250 words/15 m)

2. The EVM distraction     

(Source: Indian Express; Section: The Ideas Page; Page: 11)

Topic: GS2– Governance

Context:

The article discusses the ongoing debate around the reliability of Electronic Voting Machines (EVMs) in India, highlighting the need to shift focus from EVM skepticism to broader electoral reforms and transparency.

The Polarizing Debate on Electronic Voting Machines

• The debate surrounding the Electronic Voting Machine (EVM) in India has become one of the most persistent and bizarre topics in public discourse.
• While the EVM system, designed to make voting easier and more reliable, has sparked numerous discussions, many critics with limited technical knowledge offer opinions on its software.
• The discourse is a curious mix of love for democracy, helplessness, and speculative science fiction, fueling a sense of suspicion around the electoral process.
• Despite the introduction of Voter Verifiable Paper Audit Trail (VVPAT) machines, the debate continues, overshadowing more pressing electoral malpractices.

EVMs in Historical Context: From Electoral Reforms to Integrity Concerns

• In the early years of post-independence India, debates around democracy were transformative, focusing on decentralizing political power or shifting to proportional representation.
• By the 1990s, the discussions narrowed down to electoral reforms focused on conducting free and fair elections under an independent Election Commission.
• Over time, the debate shifted even further to focus on electoral integrity, particularly on preventing fraud during polling and counting. Within this agenda, the EVM controversy is a subset, reflecting a descent in the scope of India’s democratic imagination from system-wide reform to mechanical skepticism.

The 2024 Lok Sabha Elections: A Test of EVM Fairness

• The results of the 2024 Lok Sabha elections provided an unexpected twist in the EVM debate. Despite previous claims of large-scale electoral fraud through invisible rigging of EVMs, the election outcome showed losses for the ruling party in key states like Uttar Pradesh and Maharashtra, signaling that the EVM met the minimum threshold of fairness.
• While this does not imply that the electoral contest was entirely free or fair, it suggests that large-scale fraud in the voting mechanism itself was unlikely. The outcome largely reflected the way people voted, putting to rest some claims of EVM manipulation.

The Role of the Election Commission in Fueling Conspiracy Theories

• Despite the election results, the debate around EVMs continues, largely due to the Election Commission’s (EC) handling of certain issues.
• The EC’s delay in declaring final turnout figures for each phase raised suspicion, leading activists to claim a massive electoral fraud involving millions of additional votes being inserted after polling.
• A report by “Vote for Democracy” alleged an artificial “spike” in votes, which purportedly helped the ruling NDA win extra seats.
• While there is no concrete evidence to support this claim, the EC’s lack of transparency has only fueled such conspiracy theories.

Discrepancies in Vote Counts: Unresolved Questions

• Another issue that keeps the EVM debate alive is the alleged mismatch between votes polled and votes counted. The Association of Democratic Reforms (ADR) flagged discrepancies in the 2019 elections, which were magnified in the 2024 elections.
• The ADR’s report highlighted that in as many as 537 out of 543 constituencies, there were significant differences between the number of votes polled and counted.
• While these discrepancies could result from tallying errors, they warrant a serious response from the EC, which has yet to offer a convincing explanation.

The Need to Refocus on Broader Electoral Reforms

• The ongoing fixation on the EVM and counting mechanisms detracts from addressing deeper issues of electoral and democratic reform. A report by an Independent Panel for Monitoring of Indian Elections identified significant irregularities in the 2024 Lok Sabha elections, including unequal access to state power, media, and money, which heavily favored the ruling party.
• These structural issues pose a greater challenge to electoral fairness than the EVM, and deserve more attention. The real debate should shift towards these concerns rather than continuing to focus narrowly on the voting machine itself.

Proposals for National Consensus on EVMs and Electoral Transparency

To move past the EVM debate, there is a need for a national consensus on key issues.

• First, reverting to ballot papers is not a viable solution, as it presents more problems than it solves.
• Second, mechanisms should be put in place for voters to verify that their votes were accurately recorded by EVMs. This can be done without handing over slips to voters, which could increase the risk of vote-buying or intimidation.
• Finally, the paper slips from the VVPAT must be counted as the official election record, not just the display on the EVM.

Conclusion:

• While technical concerns about EVMs have dominated the electoral reform debate, they distract from more substantive democratic issues. The Election Commission must adopt recommendations like those from the ADR, ensuring that data is fully reconciled and transparent before results are announced.
• By focusing on structural issues of fairness, money, media access, and state power, India can strengthen its electoral system. As a global IT hub and a self-proclaimed “mother of democracy,” the country should be debating the design of its democratic institutions rather than the design of voting machines.

How is EVM better than the Paper Ballot System?

Accuracy and Reduced Errors:  EVMs eliminate the possibility of human errors such as miscounting, double voting, or invalid votes due to unclear markings. The digital nature of EVMs ensures precise tabulation of votes, leading to more accurate election results compared to manual counting. Faster Counting and Results: EVMs significantly reduce the time required for vote counting as compared to traditional paper ballots, allowing for quicker declaration of election outcomes. This swift counting process helps in minimising uncertainties and delays associated with manual counting methods. Environmentally Friendly:  EVMs contribute to environmental sustainability by reducing paper usage, thus lowering the environmental impact associated with printing and managing large quantities of paper ballots. The shift towards electronic voting aligns with global efforts to promote eco-friendly practices in electoral processes. Enhanced Security Measures:  EVMs incorporate advanced security features such as encryption, secure booting, and tamper detection mechanisms, making them less susceptible to tampering or fraud which is very likely in paper ballot systems through booth capturing, pouring ink into ballots and ballot box stuffing. The digital encryption of votes ensures the integrity and confidentiality of the electoral process, enhancing overall security and trust in election outcomes.

PYQ: To enhance the quality of democracy in India the Election Commission of India has proposed electoral reforms in 2016. What are the suggested reforms and how far are they significant to make democracy successful? (250 words/15m) (UPSC CSE (M) GS-2 2017)

Practice Question:  Critically analyze the ongoing debate around Electronic Voting Machines (EVMs) in India. In light of recent elections, discuss whether the focus on EVM reliability overshadows more significant issues of electoral integrity and democratic reforms. How can the Election Commission enhance transparency and address broader electoral challenges? (250 words/15 m)