The Bias of Commercial Surrogacy Must Be Smashed

By Gajanan Khergamker

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 be loosely 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!

PREJUDICED: Films such as recently-released Mimi perpetuate ignorance and deep-rooted bias

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.

Download full report here.


This commentary summarises discussions undertaken during virtual sessions of The Chamber Conversations on 'The Bias Of Commercial Surrogacy' held through August 2021 with Legal Professionals, Industry Experts and Surrogacy Law Activists from Mumbai (India), Jaipur (India), Panjim (India), Tokyo (Japan), Sacramento (United States), Khon Kaen (Thailand) and Darwin (Australia).

The Chamber Conversations are held by The Chamber Practice of Solicitor Gajanan Khergamker in conjunction with DraftCraft Law Network and DraftCraft Institute of Law with Media Partner The Draft.

If you wish to attend an upcoming session of The Chamber Conversations, click here for the registration process.

NOTE: You may request for an exclusive session of The Chamber Conversations, on the designated topic of the month or a key legal issue of choice, for your group, institute or organisation, on a different day/time conditional to feasibility.

Of Freedoms, Exceptions and Propaganda in India

By Gajanan Khergamker

It is in the seemingly, innocuous employment of propaganda, disguised with practiced deft as the exercise of a Fundamental Right camouflaged as ‘freedom’ that lie the bane of existence of the very same right. And, ironically too, the enforcement of the said ‘freedom’ itself risks quashing the constitutional right while on its intended path. Therein lies the truth and need to identify and weed out propaganda - the real stumbling block in the quest for freedom. So, while paradoxically, and on the face of things, a right may be curtailed, the restriction may work in the favour of upholding the very right that appears to be hindered…the intended reach of democracy could well justify the impediment. The exercise of one’s right to speech and expression, when curtailed for documented lawful reasons, could cause more damage than good to its intended goal.

CONDITIONAL: Freedom of Speech and Expression is not an absolute right

Propaganda has been in existence since eons and used strategically, in the past, by nations, political leaders, sections of the media over the years and, of late, the social media. So, till a said ‘truth’ is spread without any resistance, it has the propensity of running amok, unbridled in its reach: That is, till it is countered by another ‘truth’ that could expose the primary truth and reveal its real nature and intention while, at all times, hiding its own true identity, read, intention. The Freedom of Speech and Expression, when taken out in isolation from the cluster of Fundamental Rights ‘guaranteed by the Indian Constitution,’ is similarly assured in, albeit, a ‘conditionally-curtailed’ version: Till, there is another entity which chooses to exercise its own Freedom of Speech and Expression by resisting the original entity, but lawfully, for having subverted one or more of the ‘conditions’ that the Freedom was originally ‘subject to.’

For Speech to be unfettered, the need for a law specific to its protection and proliferation is strong, less as an assurance and an exhaustive definition to identify range and reach but, particularly to create a buffer for punitive action and counter attempts to stifle the same.

To understand the extent of Freedoms, that of Speech and Expression besides those pertaining to Assembly, Association, Movement, Residence and Profession, it is imperative to realise that the Freedoms are firstly guaranteed only to Indian Citizens and not foreigners.

Case in point being the recent Supreme Court ruling that quashed the claim of the Rohingyas’ right as a fundamental right under the Indian Constitution to reside and settle in India.

Instead of applying the Literal Rule of interpretation to the claim that the Rohingyas’ right not to be deported would arise from the Right to Life and Personal Liberty as assured under Article 21 and, concurrently, available to all human beings, the Supreme Court employed the Golden Rule of interpretation, to primarily avoid anomalous and absurd consequences from arising, and chose to see the right not to be deported as arising from the Right to Reside and Settle in India under Article 19(1)(g). The said right applied only to Indian citizens and precluded the Rohingyas from availing its benefits and preventing deportation, the raison d’etre for the very petition.

Now, the Rohingya issue like most others in India’s political scenario is synonymous with propaganda. On the face of things, while Freedom of Speech for one could be construed as Propaganda by another, it’s in the legality of the act; legal liabilities that accrue and the conditional reach accorded by legislation to each that are distinctly diverse. Freedom of Speech is guaranteed by the Indian Constitution and comes with riders that control, restrict and guide citizens who are bound to conform to avail its benefits. 

Propaganda, on the other hand, is not defined in law and is, hence, open to selective and convenient interpretation. Any accumulation of selective facts, repeated, relayed and amplified with political motives, towards a particular end or with an agenda towards convincing masses or audiences of a view or a theory is broadly called propaganda: Which brings us back to the original and plain understanding of Propaganda being a variant of Freedom of Speech and Expression.

What makes it different is that, for one, it is not defined in the law, particularly so, the law pertaining to Freedom of Speech and Expression. It is also not covered by limiting conditions or prerequisites of its own.

Apart from the usual exceptions as laid down by the law to limit the Freedom of Speech and Expression itself, Propaganda cannot be curtailed by exceptions of its own. To think of it, Propaganda may be systematically skewed and sinister in intention but is protected by the very Freedom of Speech and Expression that it threatens to manipulate. 

When the two-judge bench of Justices DY Chandrachud and Indira Banerjee pulled up the Maharashtra government over the case against Republic TV’s Arnab Goswami, two days after the Bombay High Court turned down Mr Goswami's plea against his arrest and the reopening of the case and granted him interim bail in a 2018 abetment to suicide case, Justice Chandrachud’s comments, although Obiter Dicta, made for an interesting observation.

He said, "I do not watch the channel," had said Justice Chandrachud adding if constitutional courts do not interfere, "we are traveling the path of destruction undeniably". Now, that off-the-cuff comment of not watching the channel went on to get amplified as “don’t like it, don’t watch it.” It may be recalled that the Supreme Court had, through a three-judge bench of the-then Chief Justice R.M. Lodha, Justice Kurien Joseph and Justice R.F. Nariman, in 2014, rejected a public interest litigation against the release of PK on grounds of nudity and hurtful religious portrayal saying, “This is art, entertainment — don’t bring religious facets. If you don’t like, you don’t watch. Let others watch.”

Now, as the film’s scenes weren’t interpreted as qualifying for the ‘exceptions’ to the Freedom of Speech and Expression by the Supreme Court, the film saw the light of the day: Never mind the intent behind the scenes, the feelings of ‘a’ community outraged by selective mockery and the propaganda it generated.

That the attempt was fraught with risks that could trigger public outrage even hurt religious sentiments was glossed over by the judiciary which felt the Indian audience was ‘mature enough to judge.’

For an act to qualify as an innocent expression of Freedom of Speech and Expression and survive the light of the day, instead of being nipped at the onset by the exceptions as laid down by the law, is an issue of interpretation. Now, if the State decides to swoop down on private individuals for what may be considered an unmotivated exercise of ‘freedom of speech and expression’ the judiciary steps in. 

Concurrently, if the judiciary continues to perceive acts of ‘malicious propaganda’ with the potential of creating ‘conflict’, issues with ‘public order’ or ‘likely to affect relations with other nations,’ as innocuous attempts to exercise Freedom of Speech and Expression; exceeds its brief or tries to usurp legislative powers, the legislature will have to step in with a law that identifies and examines ‘propaganda’ and weed out whatever is illegal, by definition, or through an ordinance as the need may be. Either way, the judiciary will be restricted from usurping ‘legislative’ rights.

Often, the issue of tackling freedom, particularly so of Speech and Expression, finds itself being tossed between the judiciary and the legislature with neither wanting to bell the cat. After all, any decision in this regard is bound to be received with overwhelming criticism and outrage within India and beyond borders.

So, after pussyfooting the issue for months on end, the Supreme Court has now asked the Centre to consider framing a law to regulate content on OTT (Over-the-top) platforms and submit a copy of the draft legislation for the top court's consideration.

That way, the onus of upholding the ‘freedom’ will rest upon the judiciary but be restricted to a written law created by legislation and not open to wide interpretation.

‘Entertainment’ platforms continue being unregulated in India and remain beyond the reach of the law of the land, while continuing to persist with ‘malicious provocation’, uncensored even ‘ribald’ footage, and ‘sinister propaganda’ through films, programmes and shows. India is in the process of finalising a law on OTT. A law with teeth, a law that will distinguish between Freedom of Speech and Expression, its Exceptions by law and ‘Illegal’ propaganda on OTT platforms. This way, the seemingly innocuous employment of propaganda, disguised with practiced deft as the exercise of a Fundamental Right camouflaged as ‘freedom,’ will be brought, at least in part, within the ambit of the law. An identification of propaganda and the creation of a definition by law could help sift out the ‘illegal’ component of propaganda from the innocuous rest.

Facts within propaganda, by themselves, may be indicative of ‘objectivity’ on the fact of things but owing to their repetitive portrayal or depiction tends to betray an insidious ‘subjectivity.’ That compounded with the selective portrayal of ‘some’ facts while religiously eliminating the portrayal of obvious ‘others’ exposes propaganda as distinct from fact.

Till legislation on media, social media and OTT platforms is evolved as will be the natural progression in time, judiciary will need to call out the skewed ‘subjectivity’ and the ‘mischief’ camouflaged as ‘fact.’ 

To expect the judiciary to do it judiciously, all the time, in the absence of an enacted law is akin to expecting the legislature to abdicate the onus of its prime role – Legislation. The recent spurt in the judiciary in India seeming to reprimand the Legislature about its duties to the point of blurring the lines in an all-important Separation of Powers only underline the need to legislate and ‘define’ processes that risk being misused and tackled arbitrarily by motivated entities.

The need to define propaganda is felt now more than ever.

Download full report here.


This commentary summarises discussions undertaken during virtual sessions of The Chamber Conversations on 'Freedom of Speech and Expression vs Propaganda' held through the first week of May 2021 with Legal Professionals, Industry Experts and Freedom Law Activists from Mumbai (India), New Delhi (India), Kolkata (India), Birmingham (UK), Marseille (France), Kyaukphyu (Myanmar) and Sibiu (Romania).

The Chamber Conversations are held by The Chamber Practice of Solicitor Gajanan Khergamker in conjunction with DraftCraft Law Network and DraftCraft Institute of Law with Media Partner The Draft.

If you wish to attend an upcoming session of The Chamber Conversations, click here for the registration process.

NOTE: You may request for an exclusive session of The Chamber Conversations, on the designated topic of the month or a key legal issue of choice, for your group, institute or organisation, on a different day/time conditional to feasibility.

Free doorstep banking for senior citizens and the differently-abled across India

An RBI Statement on Developmental and Regulatory Policies laid on October 4, 2017 and pertaining to banking facility for senior citizens and differently-abled persons was published on November 9, 2017. It has been observed that there are occasions when banks discourage or turn away senior citizens and differently-abled persons from availing banking facilities in branches. It is imperative to be sensitive to the requirements of theses entities.

RBI had directed banks, particularly in view of the above practice, to put in place appropriate mechanisms such as dedicated counters providing preference to senior and differently-abled persons, ease of submitting life certificate, cheque-book facility, automatic conversion of status of accounts from fully KYC compliant to senior citizen accounts, additional facilities to visually impaired customers and ease of filing Form 15G/H. For these instructions had been issued to banks to provide doorstep banking and ensure other facilities by December 31, 2017.

Seniors citizens and differently-abled persons can download the said circular and approach their own branch to demand services as guaranteed by law. Any deficiency in doing qualifies as a deficiency of service as ensured by the Consumer Protection Act and can fetch redress from a consumer forum.

Contact The Chamber Practice at or Call/WhatsApp on 8080441593 for information on the above and to initiate processes for legal representation.