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The bias of commercial surrogacy must be smashed

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Gajanan Khergamker
Gajanan Khergamkerhttp://www.gajanankhergamker.com
Gajanan Khergamker is an Editor, Solicitor and Documentary Film-maker with over 35 years experience in Media, Law and Documentary Film-Making. He heads global thinktank DraftCraft International whose activities extend beyond boundaries. He is the Founder and Editor-In-Chief of International News/Media Portal The Draft - an independent news network that aims to shed all constraints of fear and favour. He also heads The Chamber Practice of Solicitor Gajanan Khergamker - an international law firm and the legal arm of think tank DraftCraft International providing Legal Solutions Beyond Borders. The firm is headquartered at Mumbai in India and works through a network of Lawyers, Advocates and Solicitors beyond borders and across continents that include South Asia, France, Russia, Venezuela, Brazil and North America.

Perception, almost always, has a symbiotic relation with perspective. One shapes the other and only in a manner that one can. A person, whose perception is honed, over time and with experience, is perceived as one possessing an exhaustive perspective on the issue. That the perspective is subjective doesn’t matter in the least to a homogenous audience, with views similarly coloured, which conveniently considers it entirely objective.

The perspective derived from a sea of ‘local’ indigenous experience lies shrouded and, concurrently, unaffected by any external, ‘foreign’ perspective on the ‘local’ issue. This, in a liberal extension of interpretation, can loosely be applied to hard-nosed nationalism usually associated with love for one’s nation and almost always to the exception of every other.

Oddly, in India, historically too, it’s a foreign perception that almost always has a distinct precedence over an Indian perception. A foreign historian’s take is considered objective in sharp contrast to an Indian historian whose take would be considered subjective and swiftly dismissed as an attempt to ‘change history’. The call for Vocal for Local and Atmanirbhar Bharat coming after seven long decades of attaining Independence, Purna Swaraj, says it all.

Understandably, nothing’s wrong with loving one’s nation. Issues arise when skewed perceptions lead to dangerously, damaging judgements about other nations of which one has poor little or no idea about. So, to an extent, what seems like lofty nationalism to one could be interpreted as a biased perception pivoted on ignorance to another.

Yet, ‘each to his own’ is an all’s-well-that-ends-well scenario mostly ‘Artistic’ in expression and form and bolstered by a ‘Freedom of Speech and Expression’ that provides the perfect backdrop for rivalling entities to subsist in peace, each revolving in an independent orbit of its own, perpetrating lies and bias with wild abandon.

In what appears, on the face of things, to be a fuzzy, lovable movie like the recently-released ‘Mimi’, lies the scourge of an insidious posturing aimed to perpetuate ignorance and deep-rooted bias. Here, as usual, a wonderful, read ‘rich’, US-based couple arrives to India after failed attempts to conceive, dangling the lure of a lofty commission to one who could help procure a surrogate for them who would be paid a fortune, read Rs 20 lakh, for the job. The Rs 20 lakh would help Mimi provide her the means to launch a career as an actress in the Hindi film industry. It would change her life!

And then, despite the initial hitches, as usual the lure of the lucre got the better of them: Poor Mimi complies, and mostly because she’s poor. All stayed well, till it’s learned, in a pre-natal diagnosis, the child would be born with Down’s Syndrome, following which the couple – all this while expecting a ‘healthy’ baby following their endeavours to get a surrogate with a body as healthy as a ‘dancer’ in Mimi – has a change of mind and swiftly beat a retreat to their home in the US.

The belle in question decides to drop her Bollywood dreams and keep the child as her own. Following battles with a zaalim society and the usual for being an unwed mother to an older man who faked being the ‘father’, delivers the child who … turns out to be ‘normal’. Now, after a few years, during which the truth of Mimi having opted to be a surrogate to a foreigner couple, emerges amidst the usual drama, the biological parents return. They’ve apparently seen, in an online video, Mimi dance with ‘their’ child who was, to their surprise, normal and they decided to return to India to take him back…with them to home in the US.

After heated arguments with the Indian family, grandfather, grandmother, friend and surrogate mother Mimi, the biological parents threaten legal proceedings against the Indian surrogate mother and her lot. To worsen things, a host of lawyers advise her that the contract she had signed, specifying the same, would be upheld in any court of law which would ultimately decree the foreigner couple be given the lawful custody of the child.

Following tear-jerking melodrama, the family decides to return the child to the biological parents who, surprisingly, in heartrending benevolence, decide to leave their child with the surrogate. Instead, the pharisaic couple adopts a young Indian homeless girl child they saw at an orphanage and were, now, taking her back home. All’s well that ends well and everyone was left misty-eyed and fuzzy-headed enough to fall for the drummed-to-death bias that everyone lapped up without registering even a whimper of protest.

Now for the facts:

For one, like most movies, Mimi is a remake of a 2011 Marathi film Mala Aai Vhhaychy! Both plots, however, echo identical true-life incidents. Much like the one that occurred in 2014 in Thailand where an Australian childless couple abandoned a baby of the twins born, with their Thai surrogate mother, after discovering the boy was born with Down’s Syndrome.

Incidentally, following ultrasound results seven months into the pregnancy that indicated the surrogate was carrying twins and one of them, a boy, had Down’s Syndrome, the couple requested the surrogate to abort him and said they would keep only the child’s twin sister.

However, the surrogate had refused citing her Buddhist beliefs and instead opted to raise the boy, who went on to be named Gammy, on her own. The Australian couple returned home in December 2013 with Gammy’s twin sister Pipah with them. Their decision to leave the blond, brown-eyed twin brother with a freshly-discovered congenital heart condition behind in Thailand sparked global outrage.

The fact that the father, David Farnell was a convicted sex offender (sentenced to three years in prison in 1997 for molesting two girls aged 7 and 10) also compounded the controversy.

An Australian court even ruled Pipah was not allowed to be alone with her father and that she had to be read a photobook with age-appropriate language every three months for the foreseeable future that explains her father’s offenses.

David Farnell died in July 2020 to an illness. Gammy got an Australian passport on the application of the surrogate mother because his father was Australian but remains in Thailand.

Around the same time, in Bangkok the police raided a house and discovered nine babies born via surrogate to a Japanese businessman Mitsutoki Shigeta who had reportedly fathered 16 or more children and planned to continue having children as long as he lived. The founder of the clinic claimed he wanted 10 to 15 babies a year.

In 2015, a federal law passed in Thailand made commercial surrogacy illegal for all intended parents and banned all forms of surrogacy for international intended parents. The commercial process had been forcibly shut down since 2014.

Only married heterosexual Thai couples, married for at least three years, with at least one holding Thai nationality could fulfil surrogacy requirements. Singles of all sexualities and same sex couples were banned from availing surrogacy in Thailand, even if they were Thai citizens. The move directly affected wealthy couples from Hong Kong, Taiwan and Australia where commercial surrogacy was then outright banned.

But it isn’t always that a ban in commercial surrogacy makes couples seek the same beyond borders. While some nations are known to tightly restrict surrogacy, only a few ban it outright. Some which do not have surrogacy laws depend on national medical boards to tackle it in their codes of ethics. Like in the case of India which, for years together, did not even feel the need to have a law banning surrogacy.

In India, it is a Supreme Court judgement of September 2008 in the case of Baby Manaji Yamanda vs Union of India that is quoted extensively and relied upon, by ill-informed academicians and an unreliable media even Google that, till date, erroneously maintains ‘the Supreme Court of India formally legalised commercial surrogacy.’

This, while the Supreme Court had only, in its order, disposing a Writ Petition of Habeus Corpus initiated to seek out Baby Manaji, described ‘Commercial Surrogacy’ besides other forms such as Traditional, Altruistic and Gestational Surrogacy. Accordingly, the Apex Court said, in a Commercial Surrogacy, “a gestational carrier is paid to carry a child to maturity in her womb and is usually resorted to by well off infertile couples who can afford the cost involved or people who save and borrow in order to complete their dream of being parents. This medical procedure is legal in several countries including in India where due to excellent medical infrastructure, high international demand and ready availability of poor surrogates it is reaching industry proportions. Commercial surrogacy is sometimes referred to by the emotionally charged and potentially offensive terms ‘wombs for rent’, ‘outsourced pregnancies’ or ‘baby farms’.”

That “the medical procedure is legal in several countries including in India,” phrase was carefully handpicked and amplified by motivated quarters to maintain that ‘commercial surrogacy had been legalised by the Supreme Court’. It only meant that the ‘medical procedure’ was legal and that the medical fraternity was qualified by science and law to perform the procedure. That did not, in any way, accord legality to the ‘commercial’ aspect of surrogacy or ratify the acts of stakeholders involved.

Why, the 11th point in the same order that refers to, in continuance of its definition of surrogacy and its variables, the intended parent could be “either a single male or a male homosexual couple,” was conveniently glossed over. It could be interpreted as a go-ahead by India for commercial surrogacy for single gays or gay couples too, right? But that, being outright outrageous, even in thought then, was ignored.

The Supreme Court had gone on to dispose of the writ petition with a direction that if any person had any grievance, it could be ventilated before the Commission (for Protection of Child Rights 2005) constituted under the Act.

A simple search in Google on the issue yet brings up this piece of misinformation that persists and continues to wreak havoc to the issue. That India hadn’t, till then, even initiated a legislation in the regard didn’t make commercial surrogacy legal. Absence of a law on an act in question does not, in any way, accord any legal validity to the act. It only means that the act in question, should it arise, will be treated on merit and in accordance with the Common Law, i.e., judgments or orders passed by judges deciding matters relevant to the act.

It must be pointed out that proponents of commercial surrogacy, now completely outlawed in India, are swift to point out that, in the United States, by law, it is mandatory for surrogates to be covered with Life Insurance and that contingencies of health complications, even loss of life itself during pregnancy or delivery, were real and provided for in US law. What they do not tell you is that the provision stems from a very real fiscal predicament of having to cough up a fortune by way of compensation as is the wont, for damages as such, in the legal processes in the US. Insurance covers just that.

Commercial surrogacy in the United States, where legal and available, costs as high as USD 150,000 and comes for as cheap as USD 50,000 in South Asian countries; this, at times when the law wasn’t promulgated to exact the offence and nab perpetrators is yet misinterpreted conveniently by the Western media to propagate faulty perception. It was, simply put, a lot cheaper to get a surrogate in India or South Asia.

The shockingly low USD 27,000, Rs 20 lakh in Indian currency, was offered to a commercial surrogate Mimi, in the film, by a foreign childless couple, a steal in comparison to what they would have to pay for the same in the US, was played out as a once-in-a-lifetime opportunity for the aspiring actress. Sadly, the perception sticks with the viewers even despite India having initiated a legislation to ban commercial surrogacy. Little wonder then that, over the last decade, the Who’s Who of the Hindi Film Industry – fully aware of a strict legislation on surrogacy on its way in India – rushed to get themselves children born through surrogacy before the Surrogacy (Regulation) Bill comes into effect. Almost all of them may not qualify for surrogacy, should they apply for the same, under the new law.

Contracts for the same were voidable till date and will become void once a law is put in place: Void, simply speaking, meaning unenforceable in a court. Till a law expressly making commercial surrogacy an offence is promulgated, the consent of a ‘poor’ surrogate procured by the lure of wealth would translate into one being procured through coercion and, if ‘obtained’ by a ‘powerful’ couple, undue influence. Either way, the agreement would then be voidable at the option of the aggrieved party, the surrogate mother in the case.

Now, when the Surrogacy (Regulation) Bill gets passed in the near future, and bans commercial surrogacy, the ‘consideration’ could itself become illegal, and the contract void and unenforceable in a court of law.

With the biological parents, in Mimi, depending entirely on a ‘contract drawn with the surrogate,’ threatening legal action to procure the custody of their child after having obtained her consent illegally and already having dishonoured their part of the contract by shirking from the contractual responsibility, was preposterous. For Indian lawyers calling it a lost case for Mimi, only underlined a concerted attempt to further the bias. It not only furthers ignorance by glossing over the law, it further an age-old patronising attitude towards the issue.

If that wasn’t ludicrous enough, in the film, it was the swift adoption of an Indian homeless child by the childless couple at the end – a la Saroo style of the award-winning Nicole Kidman-starrer Lion – with complete disregard for Indian laws and processes that hit the final nail. Surrogacy by ‘poor mothers’ or adoption of ‘homeless’ children in India is covered by legislation, judgement, or processes, with exhaustive procedures in place for foreign couples, but all of that is conveniently overlooked.

If it’s adoption of a child from India, it’ll have to be a poor homeless urchin like Saroo who’ll tug at your heartstrings and provide, usually a ‘foreigner’ parent, the opportunity to oblige and patronise. The issue is again one of perception and perspective.

In the UK, surrogacy is perceived as a ‘Gift from One Woman To Another,’ while in India, ‘A Chance To Earn A Fortune And Change One’s Life’. In the United States, commercial surrogacy is exactly what it is spelt out to be: Commercial! And, in that, every aspect of the fiscal relationship, including covering for adverse risks by way of insurance, is dealt with.

Interpreting the issue of surrogacy is a matter of convenience and one of selective perception. For a surrogate in India, till a legal process was put into place, the practice of commercial surrogacy was perceived as going on ‘without any control’ by a powerless government and female surrogates continued being ‘exploited owing to their poverty, lack of bargaining power and absence of law’. Once a bill banning commercial surrogacy was initiated, the potential female surrogate’s Right of Choice and Freedom were projected as being ‘trampled upon’ by the State whose ‘draconian’ laws would prevent her, now, from ‘earning the fortune she could’ despite being in the world’s largest democracy.

That Surrogacy is “a result of a patriarchal system that grants men the right to control and dispose of women’s bodies for their own interests, even grants access to women bodies to Capitalism that turns them into mere commodities especially when the women are poor, vulnerable and migrant,” as a European Network of Migrant Women statement maintains, is reserved for select nations.

The making of Mimi, the intentions behind such works and ensuing populist reactions expose the bias of art and cinematic perspective and freedom for those selectively perceptive. That, it’s a case in point matters and how.

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Gajanan Khergamker
Gajanan Khergamkerhttp://www.gajanankhergamker.com
Gajanan Khergamker is an Editor, Solicitor and Documentary Film-maker with over 35 years experience in Media, Law and Documentary Film-Making. He heads global thinktank DraftCraft International whose activities extend beyond boundaries. He is the Founder and Editor-In-Chief of International News/Media Portal The Draft - an independent news network that aims to shed all constraints of fear and favour. He also heads The Chamber Practice of Solicitor Gajanan Khergamker - an international law firm and the legal arm of think tank DraftCraft International providing Legal Solutions Beyond Borders. The firm is headquartered at Mumbai in India and works through a network of Lawyers, Advocates and Solicitors beyond borders and across continents that include South Asia, France, Russia, Venezuela, Brazil and North America.
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