#International surrogacy in human trafficking
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Both reproductive purchasers are 55. Waiting too long to have kids is not infertility
By Ainhoa Barcelona 3 MAY 2024, 16:00 BST
Congratulations are in order for Prince Gustav and Princess Carina of Sayn-Wittgenstein-Berleburg, who have welcomed a second child, a daughter
According to Danish media outlet Billet-Bladet, Gustav – who is the first cousin of King Frederik and the eldest child of Princess Benedikte – and his wife Carina became parents again on Friday 26 April. The couple's spokesperson announced that "everyone is doing well and is very happy".
The newborn girl, whose name has not yet been announced, was welcomed via surrogacy in the US, much like her older brother Prince Gustav Albrecht, who turns one at the end of this month. Little Gustav was also born Stateside in May 2023
The Danish royal family are yet to acknowledge the happy news on their social media accounts, although last summer in August, they did share official portraits from baby Prince Gustav's christening.
The post at the time revealed that the youngster was baptised at home, in Berleburg Castle in Germany, with his grandmother Princess Benedikte – the younger sister of Queen Margrethe – in attendance, as well as King Frederik and Queen Mary.
Frederik and Mary's son Crown Prince Christian, who is one of baby Gustav's godparents, was also present.
Proud parents Gustav and Carina, both 55, married in June 2022, after nearly two decades together. They were unable to marry because of a strict rule implemented in the will of the Prince's grandfather, Prince Gustav Albrecht.
The will stated that Gustav would be prevented from inheriting family property if he married someone not of Protestant, noble, and Aryan descent. His partner Carina, an American author and former model, is of Swedish and Mexican descent.
However, after a lengthy battle with certain members of his family, it was determined that Gustav met the conditions of the will and would inherit Berleburg Castle, where they now reside.
In April 2022, the Danish court confirmed that Gustav and Carina would marry in June of that year, first in a civil service followed by a religious ceremony in Bad Berleburg, a town in Germany.
They tied the knot in front of 80 guests, including King Frederik and Queen Mary, before going on to start their family.
#Prince Gustav#Princess Carina#Sayn-Wittgenstein-Berleburg#International surrogacy in human trafficking#They could have married earlier they just waited it out to in order to inherent money and property#Yes Prince Gustav Albrecht was horrible for putting racist conditions on who his grandson married in order to inherent#But while he was living his lifestyle the quality of his sperm was declining as he aged#Waiting too long to have kids is not infertility
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Let’s not abolish sex work. Let’s abolish all work
By Laurie Penny
26 May 2016
Is sex work “a job like any other”—and is that a good thing? Amnesty International today officially adopted a policy recommending the decriminalisation of sex work around the world as the best way to reduce violence in the industry and safeguard both workers and those who are trafficked into prostitution.
“Sex workers are at heightened risk of a whole host of human rights abuses including rape, violence, extortion and discrimination,” said Tawanda Mutasah, Amnesty International’s senior director for law and policy. “Our policy outlines how governments must do more to protect sex workers from violations and abuse.
“We want laws to be refocused on making sex workers’ lives safer and improving the relationship they have with the police while addressing the very real issue of exploitation,” said Mutasah, emphasising the organisation’s policy that forced labour, child sexual exploitation and human trafficking are human rights abuses which, under international law, must be criminalised in every country. “We want governments to make sure no one is coerced to sell sex, or is unable to leave sex work if they choose to.”
The proposal from the world’s best-known human rights organisation has caused uproar, particularly from some feminist campaigners who believe that decriminalisation will “legitimise” an industry that it is uniquely harmful to women and girls.
As sex workers around the world rally for better working conditions and legal protections, more and more countries are adopting versions of the “Nordic Model”—attempting to crack down on sex work by criminalising the buyers of commercial sex, most of whom are men. Amnesty, along with many sex workers’ rights organisations, claims that that the “Nordic Model” in fact forces the industry underground and does little to protect sex workers from discrimination and abuse.
The battle lines have been drawn, and the “feminist sex wars” of the 1980s are under way again. Gloria Steinem, who opposes Amnesty’s move, is one of many campaigners who believe the very phrase “sex work” is damaging. “‘Sex work’ may have been invented in the US in all goodwill, but it has been a dangerous phrase—even allowing home governments to withhold unemployment and other help from those who refuse it,” Steinem wrote on Facebook in 2015. “Obviously, we are free to call ourselves anything we wish, but in describing others, anything that requires body invasion—whether prostitution, organ transplant, or gestational surrogacy—must not be compelled." She wanted the UN to replace the phrase “sex work” with “prostituted women, children, or people.”
The debate over sex work is the only place where you can find modern liberals seriously discussing whether work itself is an unequivocal social good. The phrase “sex work” is essential precisely because it makes that question visible. Take the open letter recently published by former prostitute “Rae,” now a committed member of the abolitionist camp, in which she concludes: “Having to manifest sexual activity due to desperation is not consent. Utilising a poor woman for intimate gratification—with the sole knowledge that you are only being engaged with because she needs the money—is not a neutral, amoral act.”
I agree with this absolutely. The question of whether a person desperate for cash can meaningfully consent to work is vital. And that’s precisely why the term “sex work” is essential. It makes it clear that the problem is not sex, but work itself, carried out within a culture of patriarchal violence that demeans workers in general and women in particular.
To describe sex work as “a job like any other job” is only a positive reframing if you consider a “job” to be a good thing by definition. In the real world, people do all sorts of horrible things they’d rather not do, out of desperation, for cash and survival. People do things that they find boring, or disgusting, or soul-crushing, because they cannot meaningfully make any other choice. We are encouraged not to think about this too hard, but to accept these conditions as simply “the way of the world.”
The feminist philosopher Kathi Weeks calls this universal depoliticisation of work “the work society”: an ideology under whose its terms it is taken as a given that work of any kind is liberating, healthy and “empowering.” This is why the “work” aspect of “sex work” causes problems for conservatives and radical feminists alike. “Oppression or profession?” is the question posed by a subtitle on Emily Bazelon’s excellent feature on the issue for the New York Times this month. But why can’t selling sex be both?
Liberal feminists have tried to square this circle by insisting that sex work is not “a job like any other,” equating all sold sex, in Steinem’s words, with “commercial rape”—and obscuring any possibility of agitating within the industry for better workers’ rights.
The question of whether sex workers can meaningfully give consent can be asked of any worker in any industry, unless he or she is independently wealthy. The choice between sex work and starvation is not a perfectly free choice—but neither is the choice between street cleaning and starvation, or waitressing and penury. Of course, every worker in this precarious economy is obliged to pretend that they want nothing more than to pick up rubbish or pour lattes for exhausted office workers or whatever it is that pays the bills. It is not enough to show up and do a job: we must perform existential subservience to the work society every day.
In the weary, decades-long “feminist sex wars,” the definitional choice apparently on offer is between a radically conservative vision of commercial sexuality—that any transaction involving sex must be not only immoral and harmful, but uniquely so—and a version of sex work in which we must think of the profession as “empowering” precisely because neoliberal orthodoxy holds that all work is empowering and life-affirming.
That binary often can leave sex workers feeling as if they are unable to complain about their working conditions if they want to argue for more rights. Most sex workers I have known and interviewed, of every class and background, just want to be able to earn a living without being hassled, hurt or bullied by the state. They want the basic protections that other workers enjoy on the job—protection from abuse, from wage theft, from extortion and coercion.
A false binary is often drawn between warring camps of “sex positive” and “sex negative” feminism. Personally, I’m neither sex-positive nor sex-negative: I’m sex-critical and work-negative.
Take Steinem’s concern that if “sex work” becomes the accepted terminology, states might require people to do it in order to access welfare services. Of course, this is a monstrous idea—but it assumes a laid-back attitude to states forcing people to do other work they have not chosen in order to access benefits. When did that become normal? Why is it only horrifying and degrading when the work up for discussion is sexual labour?
I support the abolition of sex work—but only in so far as I support the abolition of work in general, where “work” is understood as “the economic and moral obligation to sell your labour to survive.” I don’t believe that forcing people to spend most of their lives doing work that demeans, sickens and exhausts them for the privilege of having a dry place to sleep and food to lift to their lips is a “morally neutral act.”
As more and more jobs are automated away and still more become underpaid and insecure, the left is rediscovering anti-work politics: a politics that demands not just the right to “better” work, but the right, if conditions allow, to work less. This, too, is a feminist issue.
Understood through the lens of anti-work politics, the legalisation of sex work is about harm reduction within a system that is always already oppressive. It's the beginning, rather than the end, of a conversation about what it is moral to oblige human beings to do with the labour of their bodies and the finite time they have to spend on earth.
Sex work should be legal as part of the process by which we come to understand that the work society itself is harmful. The liberal feminist insistence on the uniquely exploitative character of sex work obscures the exploitative character of all waged and precarious labour—but it doesn’t have to. Perhaps if we start truly listening to sex workers, as Amnesty has done, we can slow down at that painful, problematic place, and speak about exploitation more honestly—not just within the sex industry, but within every industry.
#repost of someone else’s content#article#laurie penny#sex essentialism#sw#feminism#socialism#anti radfem#anti capitalism#anti work
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The Church also takes a stand against the practice of surrogacy, through which the immensely worthy child becomes a mere object. On this point, Pope Francis’s words have a singular clarity: “The path to peace calls for respect for life, for every human life, starting with the life of the unborn child in the mother’s womb, which cannot be suppressed or turned into an object of trafficking. In this regard, I deem deplorable the practice of so-called surrogate motherhood, which represents a grave violation of the dignity of the woman and the child, based on the exploitation of situations of the mother’s material needs. A child is always a gift and never the basis of a commercial contract. Consequently, I express my hope for an effort by the international community to prohibit this practice universally.”[92]
First and foremost, the practice of surrogacy violates the dignity of the child. Indeed, every child possesses an intangible dignity that is clearly expressed—albeit in a unique and differentiated way—at every stage of his or her life: from the moment of conception, at birth, growing up as a boy or girl, and becoming an adult. Because of this unalienable dignity, the child has the right to have a fully human (and not artificially induced) origin and to receive the gift of a life that manifests both the dignity of the giver and that of the receiver. Moreover, acknowledging the dignity of the human person also entails recognizing every dimension of the dignity of the conjugal union and of human procreation. Considering this, the legitimate desire to have a child cannot be transformed into a “right to a child” that fails to respect the dignity of that child as the recipient of the gift of life.[93]
Surrogacy also violates the dignity of the woman, whether she is coerced into it or chooses to subject herself to it freely. For, in this practice, the woman is detached from the child growing in her and becomes a mere means subservient to the arbitrary gain or desire of others. This contrasts in every way with the fundamental dignity of every human being and with each person’s right to be recognized always individually and never as an instrument for another.
Dignitas Infinita, paragraphs 48, 49, and 50
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Could you quote your source on that claim about gay men more oftenly using paid surrogacy than straight men?
as far as i know, there are no international studies on surrogacy as a whole. the industry is functionally a black market for babies. however, some of the human traffickers who organise these baby purchases publish their own statistics. here's one in australia who claims that 49% of her baby buyers are gay male couples, and 1% are single males. since gay males are far less than half the population, they are over-represented. if we restrict ourselves to comparing gay couple with straight infertile couples, the over-representation remains - about 1/5 straight couples struggle with conceiving. gay couples are about 2% of total couples, which makes them 10 times more likely to purchase a baby than a straight couple dealing with infertility.
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believing in female solidarity and class conciousness and sisterhood while dealing with western feminists is actually a nightmare lmao
im so tired of making an effort, i truly am. im so tired. im tired of feeling like i have to teach Basic Empathy and Caring abt Others and Class Conciousness 101. im tired of being the only one whose making an effort in this relation. im so tired of it being the case that its only the westerners who lose their little marbles over whatever feminist points i may be be trying to make, and they somehow don't understand the irony in them prepetually calling so many nonwestern feminists fascists or whatever the fuck else. yes yes, indian feminists are just stupid for trying to ban pornography and surrogacy, please enlighten them. south korean women are just evil brainwashed bitches, that's why they're radical separatists - south asia in general having a separatist and radical wave is for no reason whatsoever theyre just nazis lmao. african feminists, so many of them, are white supremecists for not exactly parroting your western bullshit, yup yup this makes sense. islamic feminists are "suspicious" lmao for the language we use in our writings (analysis of material reality). lets completely ignore that the feministms of the nonwestern world call for the abolition of prostitution. balkan sex trafficking victims, which are most prostitutes and child prostitues in the west, spending years speaking out against all this and trying to change laws? naaah we know nothing, we dont know nothing at all, the well of westerners who have no idea what theyre talking abt will englighten us abt that, while calling for the death of women who dont agree with their sex work bullshit lmao. we also have a bad habit of joking abt unifying and killing men and killing sex tourists, we should probably stop that bc its real offensive and scary to the westerners too
all this god damn endless performative sharade about LiSteN to WoMen of CoLour and LisTen to ThIrd WoRld WoMen and liSten to NonWeSteRn WoMen and poOr woMen and SeX TrAffIcking ViCtiMs (wait nvm they dont even say that now, bc only "sex workers" exist to them, ever) et fucking cetera. yea lmao. they dont actually give a shit about marginalized women though
god help us. how the hell is the cognitive dissonance of this whole situation not hitting them exactly? with. literally basically any other feminist on this planet but the liberal/mainstream westerners you can hold an actual conversation and discourse and understand each other. everyone but them and their postmodern brainrot understands this is a class struggle and understands the root of the opression of the female sex. "ThErES nO UnIvErSalLiTy BetWeEN wOmEn" just shut it already jfc. the fact that we can have international conversations on our struggles basically already proves there is - its only you who cant get what planet youre living on, with the endless relativity and individualism and choice and language politiquing and patriarchal bootlicking
i know, because ive been doing it for years. and ive been watching the feminist movements of the nonwestern world for years. i also know the only reason why on this blog i Can actually for the most part say things without being crucified is bc most of yall arent western or white or both
and apart from the ones who outright lose their mind or feel incredibly comfortable speaking over you or talking down to you - dont rly know how they havent choked on the entitlement yet -maybe they're just fucking lost and too far gone. but. even the rest. who are less hostile or just privileged and dont know better. im just tired, just tired.
the internet is chock full of the opinions of nonwestern women on feminism. the internet is chock full of the accounts of sex trafficking victims, of child prostitues, of prostitutes, of experts on human trafficking. its fucking full of it. and its on tv, and sometimes in newspapers. god fucking damn it so much has been written on this, so much has been done on this, so many efforts movements organizations documentaries whatever the fuck. spains laws were changed by our trafficked women but somehow its like this fact doesn't exist to the westenrs, or the have the gull to explain that, actually, they're wrong.
it is of absolutely no pleasure of me at all to educate the western "feminists" on shit they could educate themselves on in approximately 10 fucking minutes if theyd bother to do a google search and give a shit, actually give a shit and maybe, for fucking once, realize theyre not always right and the center of the world. its of no pleasure to me at all to have to keep my cool and be nice enough that whatever i say isnt just dismissed, because if youre too fucking angry over god damn sexual slavery you're just an evil crazy irrational bitch. im tired. whatever the hell i say has been said by so many before, so many times, for so long, but its like its been said to a wall or yelled out into space
sometimes i wonder what the hell we must even do for it to even matter. rationality and calmness hasnt helped. anger hasn't helped. detailed accounts of what its Actually like to be trafficked or a child prostitute or a prostitute or a sex slave, havent helped. we have bore our pain and sorrows and trauma and soul and so often it doesn't mean a single god damn thing to them. what. what needs to happen. should we just start having mental breakdowns and screaming our throaths raw infront of them? no, they will not care or understand even then. should we show them what the sexual slavery of children actually looks like - except wait, theres undercover journalism and documentaries and accounts written on this. it matters not. it matters not. Whats next? Interpretive dance?? What else we got, should we maybe just start trying to communicate through telepathic waves?? i wonder if some of them are simply doomed to be deaf and blind and unfeeling
im tired of making the effort, and im tired of reaching across the isle hoping that at least some of them can change their minds and give a shit and open their eyes to whats actually happening, and how detached their "feminism" is from the rest of ours. im tired of having to explain to the western women whose ideology is responsable for, lmao, our peoples sexual slavery, that this shit is real bad, and lmao in actuality imperialism, but having to do it nicely enough while They are x30 times more hostile with Me. lord. if youre going to call me a fascist and cancel me irl, if were just throwing words around, can i just start calling them slavers? except thats not going to get us anywhere, except no matter how many times i want to just snap, i know that doing so as badly as i want to to their face isnt going to get anything done
. and.what choice do i have, really? i cant simply leave the western feminists to their bullshit. because what they think becomes law in their own damn countries and then affects us, it becomes international law as well because it is their country who lead the international community. the bullshit that they think, actually, unfortunately direcly affects us. and not only that, but it affects the women and girl-children most vulnerable and opressed in their own countries, whom are still our sisters whose pain and saftey i am concerned with. so i cant just leave them to it, and there is little choice then to not educate, or not try to at least try to reach across the isle. theres little choice but to have the hope that some of them can care and understand, and that some is better than nothing and worth it and a start..... even with how fucking tired and fed up i am and how i wish i wouldnt have to keep bearing my god damn suffering just so theyd get it, im still. frankly so willing to do it with someone who is actually willing to listen and change. i dont believe in canceling people forever, and i have the hope and knowledge that changing one persons mind is a ripple effect, for then they change anothers mind, and on and on
i just wish. theyd at least meet me halfway. im tired of making the effort to still see them as sisters and women whose struggles i care about, while for the most part they could give less of a shit
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Okay wait genuinely wondering what that anon meant in regards to surrogacy being human trafficking? Maybe it’s a cultural difference because I’m from the US but I’ve heard plenty of people say that exact opposite (in the sense that they view adoption as human trafficking and surrogacy as the more morally correct option, especially if it’s altruistic surrogacy). You absolutely don’t have to answer this if you don’t want to start a dialogue about this stuff on your blog btw I’m just curious
no there's defo cultural difference in attitudes and norms. i mean, i think there's some ethical concerns around surrogacy in that it might be used to exploit vulnerable women desperate for money, and also the potential that surrogates' health and wellbeing might be neglected by parents who only really care about the baby they get at the end of it. in the uk, i believe the surrogate mother is also considered the legal mother until she signs away parental rights or some such to the biological parents, which has its own set of issues in terms of what happens should she decide she wants to keep the baby she's just grown and birthed or whatever. the human trafficking statement is probably to do with the fact that it's someone's body being used for another's biological gain, and that consent around this could be very dubious - again, more vulnerable women are likely to be put at risk from this. i know that in the u.s. you have companies specifically designed to match surrogates and would-be parents, like it's a whole paid process, whereas it's not a thing to that extent in europe - i think there's a lot less security and more risk involved with surrogacy, so a lot of people are rightfully wary. also, in the uk, the nhs don't have anything to do with surrogacy, so it would mean going private for healthcare and a lot of people aren't prepared to do that - obviously in the u.s. there's no real alternative to paid treatments.
but that's not to say that there aren't issues with foster care and adoption either - children of colour are more likely to be disadvantaged by the systems, which are overwhelmed. in the uk, unlike the u.s., third-party and private agency adoptions are illegal - you have to go through the social care system to adopt legally - and there's statistically less international adoption (i looked it up) in the uk than there is in the u.s.; as such, there's less potential for adoptions to be instances of human trafficking. that said, though, there's definitely a lot of fear of child abuse regarding kids in the care system here.
i don't mind keeping the dialogue open, but i'd ask we keep it all respectful if we do, please <3
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Holy See Statement During The 67th Commission On The Status Of Women.
The Holy See is pleased to participate in this Sixty-Seventh Session of the Commission on the Status of Women and welcomes the opportunity to examine both the opportunities and challenges of technology and innovation for women and girls.
As Pope Francis has observed, “even today, in many countries, women are considered second-class citizens… [and] are denied the opportunity to study, work, [and] employ their talents.” Education is essential for fostering societies which treat women and men equally. This begins within the family, the “fundamental group unit of society.” Parents can model healthy respectful relations between the sexes and positive models of socialization, including teaching digital safety skills. Protecting children online, particularly girls, requires providing parents with digital knowledge and online safety tools.
Information and communication technologies (ICTs) can create lifelong learning opportunities for women and girls. Although not a substitute for in person schooling, remote learning has enabled girls to continue their studies during emergency situations. Online learning can also offer flexibility for women to study while balancing work and family responsibilities. This includes older women, who often lag behind in access to technology and in digital literacy. Additionally, ICTs are particularly important for engaging women and girls in the fields of science, technology, engineering, and mathematics (STEM).
Women and girls are ready to seize these opportunities, but they must be given the tools to do so. In this regard, we cannot overlook the importance of eradicating poverty in order to achieve equality for women and girls. Women and children are more likely to live in poverty than men, increasing the risk of violence and exploitation. Social protection programmes play a pivotal role in reducing inequality, which increases access to technology. Without a strong international commitment to ensuring that the benefits of technological advancement are shared by all, women and girls in particular will fall further behind in our increasingly digital world.
Innovation must be directed toward the good of the person, or it risks harming those it should benefit, with women and girls the most frequent victims. The purchase of women and girls for sexual use in sex trafficking and prostitution increasingly relies on ICTs. Technology has also increased pornography consumption, including by children, with algorithms feeding perverse appetites for violence against women. The abuse of children, most of whom are girls, to create such materials, is particularly heinous, but all pornography is immoral and harmful; accepting it is incompatible with respect for women and girls.
Equality for women also requires accepting women fully, including their unique capacity for childbearing. Rather than employers accommodating family life, women are expected to accommodate their employers, often through the use of contraception. The offer by some companies of risky “egg freezing” benefits for future (and often unsuccessful) fertility procedures similarly places the burden on women rather than their employers. Women who do become pregnant often face financial and social pressures, including son preference and disability prejudice, to abort their children. On the other hand, practices such as surrogacy reduce women, many of whom are poor and vulnerable, to their reproductive capacities, commodifying both them and the children they bear. All these practices undermine the value of women and the respect that they deserve.
Madam Chair,
The Holy See encourages “the progress of science and technology at the service of the dignity of the person and for an ‘integral and integrating’ human development.” Women and girls’ gifts and capabilities should be cherished and nourished, including in the areas of innovation and technology. The Holy See and the many institutions of the Catholic Church will continue to contribute to efforts to ensure that technological developments include and benefit women and girls and ensure respect for their dignity.
By H. E. Archbishop Gabriele Caccia, Apostolic Nuncio and Permanent Observer of the Holy See to the United Nations, 67th Commission on the Status of Women
“Innovation and technological change, and education in the digital age for the achievement of gender equality and the empowerment of all women and girls”
New York, 9/13 March 2023
#Women and girls#Holy see U.N.#Statements#Permanent Observer#education in the digital age#technological developments#gender equality#technological change#innovation#digital inclusion
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Hello I was just wondering what happened to your paper from December? Did it go okay :o
HIII i'm sorryi just saw this 🔍🔍🔍 and sorru to the other messages i also just saw (thankyou roo) but i will replu to you now bc you are at the top and the paper ur mentioning is about trafficking and the paper i'm currently """""writing"""""" is also about trafficking so really it counts like productivitu to write this? also sorry if i sound reallywhatever it's bc i'm sleepy
you have a good memory!!!!!!! and my december paper went well tbh 🪺🪺🪺 i honestly really am proud of the finished product & my professor liked it too except he said i didn't explore the ethics as much as i could have which i agree with but also i wasn't rlu interested in that aspect. um for context i was looking at transnational human trafficking laws in india & cambodia since like early 1900s (& thailand but i had to cut it for page count 😿) + comparing how they're applied to sex work & commercial gestational surrogacy & like, i honestly think it wss good. i'mso sad about thailand though like it really was The Key Middleman...but that was my paper i feel like i really did learn a lot about a lot of things & i liked especially thinking about transgender people inmatters of international security, & this one article by ummm lakkimsetti on identities vs actions in india's antidiscrimination laws fr really stuck with me
thid is getting long and one thing i'm learnign this semester is i will talk for so long about my interests but unfortunately my interests are like, the walking dead. but thank you for asking!! & i hope uou are doing well, essays & otherwise!!!!! ❤️❤️❤️❤️❤️❤️❤️ sending uou lots of good wishes
#i tried scrolling thru my camera roll to find a nice picture to attach for something nice to add but can't find any#so herr are more emojis 🪺🍡🦎🥭✈️🪥👻🧵🧿❣️❣️❣️ goodnight 🌙#mail
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“Retrenchment” was the term describing prison-rape introduced thrpugh the school system, “encouraging” girls to subordinate themselves to “an Arian male” as a means of denying them 1) the tools for selfdefense and autonomy 2) a fair wage and work environment 3) the basic Human rights and the protections attested by religion, international conventions and common sense - in the hopes that mob rule would compel the woman to willingly allow herself to be raped and offer such a mob the blood of her children (which would be slavery). This practice was then organized into “the wandering marriage”, consisting of a caravan of men travelling between towns to transport brides, thereby re-perpetuating a circle of negatove social heritage. The male Hyena practice (from Africa) describes a male being paid to deflower/impregnate girls once becoming fertile, after which custody battles May ensue - and this is imposed surrogacy. On the other hand there’s also the custom of Female Genital Mutilation, which seeks to sterilize the female and enable other means of exploitation (eunuch practices). When these are joined into the harem practice the result is a Black eunuch surrounded by a crowd of females - or more accurately a group of prison-lesbians so full of hormones they’ll use any Lie and excuse to create an inappropriate context. The descriptions of the harem are full of harem-generated drama centered around the stories of multiple women generating offspring by the same male - making it gang-rape. A multitude of Danish films illustrate this “game” plottes out and pursued, which isn’t “a conspiracy theory” as much as history being taught to us at all levels of Education, which is then applied as a means to violate “newcomers” in a local village form of hate-rape-tourism as took place in Salem, Massachussets (See “Adam’s Apples/ Adams Æbler”). The central goal of “the game” is to create an at isolere of fear and paranoia (domestic abuse and terrorism) as a means to “encourage” the targeted to “seek medical attention” (drug-dependency) and thereby become chronically exploitable, which is trafficking (pimping and slavery). https://www.instagram.com/p/CfGYLZUtU6F/?igshid=NGJjMDIxMWI=
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A radical feminist’s reading list-
Classic
The Second Sex by Simone de Beauvoir
The Feminine Mystique by Betty Friedan
Sexual Politics by Kate Millett
On Lies, Secrets, and Silence: Selected Prose, 1966-1978 by Adrienne Rich
The Beauty Myth by Naomi Wolf
Fiction
The Power by Naomi Alderman
Salt Slow by Julia Armfield
The Handmaid’s Tale by Margaret Atwood
Native Tongue by Suzette Haden Elgin
The Vagina Monologues by Eve Ensler
Her Body and Other Parties by Carmen Maria Machado
The Gate to Woman’s Country by Sheri S. Tepper
History
Women’s Work: The First 20,000 Years by Elizabeth Wayland Barber
Caliban and the Witch: Women, the Body, and Primitive Accumulation by Silvia Federici
The Living Goddesses by Marija Gimbutas
The Creation of Patriarchy by Gerda Lerner
Who Cooked the Last Supper? The Women’s History of the World by Rosalind Miles
Women of Ideas: And What Men Have Done to Them by Dale Spender
Headstrong: 52 Women Who Changed Science-and the World by Rachel Swaby
Intersectional
Women, Race & Class by Angela Y. Davis
Ain’t I a Woman: Black Women and Feminism by bell hooks
It’s Not About the Burqa by Mariam Khan (editor)
Sister Outsider: Essays and Speeches by Audre Lorde
This Bridge Called My Back: Writings by Radical Women of Color by Cherríe Moraga (editor) and Gloria Anzaldúa (editor)
Lesbian
Unpacking Queer Politics: A Lesbian Feminist Perspective by Sheila Jeffreys
The Disappearing L: Erasure of Lesbian Spaces and Culture by Bonnie J. Morris
Homophobia: A Weapon of Sexism by Suzanne Pharr
Compulsory Heterosexuality and Lesbian Existence by Adrienne Rich
Liberal vs. radical
Female Erasure: What You Need to Know about Gender Politics’ War on Women, the Female Sex and Human Rights by Ruth Barrett (editor)
End of Equality by Beatrix Campbell
Feminisms: A Global History by Lucy Delap
Daring to be Bad: Radical Feminism in America, 1967-1975 by Alice Echols
Gender Hurts: A Feminist Analysis of the Politics of Transgenderism by Sheila Jeffreys
Freedom Fallacy: The Limits of Liberal Feminism by Miranda Kiraly (editor) and Meagan Tyler (editor)
The Sexual Liberals and the Attack on Feminism by Dorchen Leidholdt (editor) and Janice G. Raymond (editor)
The Transsexual Empire: The Making of the She-Male by Janice G. Raymond
We Were Feminists Once: From Riot Grrrl to CoverGirl, the Buying and Selling of a Political Movement by Andi Zeisler
Pornography, prostitution, surrogacy & rape
Against Our Will: Men, Women and Rape by Susan Brownmiller
Slavery Inc.: The Untold Story of International Sex Trafficking by Lydia Cacho
Pornland: How Porn Has Hijacked Our Sexuality by Gail Dines
Being and Being Bought: Prostitution, Surrogacy and the Split Self by Kajsa Ekis Ekman
The Industrial Vagina: The Political Economy of the Global Sex Trade by Sheila Jeffreys
Only Words by Catharine A. Mackinnon
Know My Name by Chanel Miller
Not a Choice, Not a Job: Exposing the Myths about Prostitution and the Global Sex Trade by Janice G. Raymond
Women as Wombs: Reproductive Technologies and the Battle Over Women’s Freedom by Janice G. Raymond
Psychology & trauma
Why Does He Do That? Inside the Minds of Angry and Controlling Men by Lundy Bancroft
Delusions of Gender: How Our Minds, Society and Neurosexism Create Difference by Cordelia Fine
Trauma and Recovery: The Aftermath of Violence – From Domestic Abuse to Political Terror by Judith Lewis Herman
Toward a New Psychology of Women by Jean Baker Miller
Theory
Dear Ijeawele, or A Feminist Manifesto in Fifteen Suggestions by Chimamanda Ngozi Adichie
We Should All Be Feminists by Chimamanda Ngozi Adichie
Gyn/Ecology: The Metaethics of Radical Feminism by Mary Daly
Last Days at Hot Slit: The Radical Feminism of Andrea Dworkin by Andrea Dworkin, Johanna Fateman (editor) and Amy Scholder (editor
The Dialectic of Sex: The Case for a Feminist Revolution by Shulamith Firestone
Feminism is for Everybody: Passionate Politics by bell hooks
Feminist Theory: From Margin to Center by bell hooks
Against Sadomasochism: A Radical Feminist Analysis by Robin Ruth Linden (editor), Darlene R. Pagano (editor), Diana E. H. Russell (editor) and Susan Leigh Star (editor)
Toward a Feminist Theory of the State by Catharine A. Mackinnon
The Sexual Contract by Carole Pateman
Other
Without Apology: The Abortion Struggle Now by Jenny Brown
Close to Home: A Materialist Analysis of Women’s Oppression by Christine Delphy
Doing Harm: The Truth About How Bad Medicine and Lazy Science Leave Women Dismissed, Misdiagnosed, and Sick by Maya Dusenbery
Beauty and Misogyny: Harmful Cultural Practices in the West by Sheila Jeffreys
Are Women Human? And Other International Dialogues by Catharine A. Mackinnon
Invisible Women: Data Bias in a World Designed for Men by Caroline Criado Perez
A Passion for Friends: Toward a Philosophy of Female Affection by Janice G. Raymond
How to Suppress Women’s Writing by Joanna Russ
Man Made Language by Dale Spender
Counting for Nothing: What Men Value and What Women are Worth by Marilyn Waring
#radical feminist#radical feminism#radfem#radfem safe#terf#terf safe#radfems please interact#terfs please interact#feminist literature
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She had a child trough surrogacy at 68. The average life span for Spainish women is 83. Meaning she could be dead before the kid is 18. And even if she does live to see her second kid reach adult hood. She's going to be handling an elementary school age kid in her 70s, and 86 when she's 18 and old enough to try for her drivers license.
Spanish Actress Ana Obregón Faces Backlash for Surrogacy Decision
May 25, 2024 F. Salau
Renowned Spanish actress Ana Obregón has ignited a firestorm of criticism after revealing that she welcomed a daughter through surrogacy in the United States at the age of 68.
The revelation has sparked debate and raised questions about the legality and morality of surrogacy in Spain.
A Respected Actress
Ana Obregón is widely known for her roles in various Spanish comedies, earning her a place in the hearts of audiences across the country.
However, her decision to pursue surrogacy has drawn both admiration and condemnation from the public and political figures alike.
A Tragic Loss
Obregón’s decision to pursue surrogacy comes in the wake of a devastating personal tragedy.
In 2020, she tragically lost her only son to cancer at the young age of 27. Since then, she has been candid about her grief and her determination to find hope and joy amidst the pain.
Surrogacy in Spain
Spain has strict laws regarding surrogacy, prohibiting all forms of the practice within its borders.
However, parents who undergo surrogacy abroad can legally adopt the child upon their return to the country. This legal loophole has sparked debate and controversy in recent years.
The Ethics of Surrogacy
Surrogacy, the practice of a woman carrying and giving birth to a child for another person or couple, is a complex and controversial issue.
While it can bring joy and fulfillment to those unable to conceive naturally, it also raises ethical questions about exploitation, commodification of women’s bodies, and the rights of the child.
Ana Obregón’s Revelation
Ana Obregón’s decision to share her surrogacy journey publicly has ignited a fierce debate in Spain.
Her appearance on the cover of Hola! magazine, cradling her newborn daughter outside a Florida hospital, has drawn both praise and condemnation from various quarters.
A Divisive Response
Obregón’s Instagram post, in which she expressed gratitude for the “loving light” that entered her life, has divided opinion on social media.
While some have praised her courage and resilience, others have criticized her decision as morally questionable and socially irresponsible.
Political Reactions
Politicians in Spain have also weighed in on the controversy, with members of the left-wing administration condemning Obregón’s actions.
Minister of Education Pilar Alegra likened her departure from the hospital to a descent into hell, while Minister of Equality Irene Montero characterized surrogacy as a form of aggression against women.
Legal and Moral Implications
The debate surrounding surrogacy in Spain touches upon complex legal, moral, and ethical issues.
While some advocate for stricter regulations and outright bans, others argue for a more nuanced approach that balances the rights of intended parents, surrogate mothers, and children born through surrogacy.
Conclusion: A Call for Dialogue
As the debate over surrogacy continues to unfold in Spain, it is clear that there are no easy answers to the complex questions it raises.
What is needed is a thoughtful and respectful dialogue that takes into account the perspectives of all stakeholders involved.
Only through open and honest discussion can Spain hope to navigate the challenges posed by surrogacy in the modern world.
#Spain#anti surrogacy#Babies are not commodities#Using surrogacy to replace a dead child#Ana Obregón#I feel sorry for her loss but an adoption agency would not have approved her#Surrogacy being used by people who would have been rejected by adoption agencies#International surrogacy is human trafficking#I hope she has a legal guardian for the kid lined up case she dies or has age related drastic quality of life changes
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The “world historical defeat” of the female sex continues apace.
Women in their tens of thousands are trafficked into sexual slavery every year. Increasing numbers of poor, black and brown women are virtually imprisoned on commercial surrogacy farms, producing babies for the benefit of rich couples. Brutalisation of women in the porn industry is feeding through into its viewers’ sex lives, with grim consequences, while teenage girls face an epidemic of sexual harassment at school and on the streets.
The frequency of female genital mutilation (FGM) and child marriage has shot up during the Covid-19 crisis. Domestic violence has likewise rocketed. In the UK, prosecutions are so limited that rape is virtually decriminalised. Abortion rights are under attack, from the USA to Poland. And international ‘men’s rights’ networks like ‘Men Going Their Own Way’ attract millions of viewers to videos that dehumanise and pathologise women to an extreme extent.
This is a resurgent global system of exploitation and oppression targeted on women, a reaction against the many gains of feminism. The increasingly commercial nature of many of these deeply exploitative and oppressive practices - the porn industry, for one, makes billions every year, some of it from content involving rape, child abuse, non-consensual filming and the like - drives home the desperate need for a socialist analysis that exposes the roots of these ancient but enduring patriarchal oppressions. And we need an understanding and a language that enables that analysis.
But at the same time as this shocking acceleration of anti-woman attitudes, practices and policies, the categories of ‘man’ and ‘woman’ are being rapidly taken apart in response to a worldwide ‘trans rights’ movement. In a rush to embrace the new world of multiple genders, organisations and corporations as diverse as Amnesty International, Tampax, the stillbirth charity, Sands, the Harvard Medical School and many others are in a sudden rush to delete the words ‘woman’ and ‘girl’ from their vocabulary and replace them with a new, ‘inclusive’ language of ‘menstruators’, ‘gestational carriers’, ‘birthing people’, ‘cervix-havers’ and ‘people with uteruses’.
At the same time, the word ‘sex’ has progressively been replaced by the word ‘gender’, which is used to refer not only to reproductive class, but also to aspects of human life as disparate as individual psychology, personality, mannerisms, clothing choices and sexual roles. And the words ‘male’ and ‘female’, ‘man’ and ‘woman’, are being repurposed to refer not to the sexes themselves, but to aspects of psychology, personality or clothing that are traditionally associated with one or the other sex.
Is this new language - and the renaming and breaking up of the category of people formerly known as women - the tool we need for the job of dismantling the worldwide discrimination, exploitation and abuse of women that is so often focussed on the female sexual and reproductive characteristics? I would argue not. These misguided attempts to dismantle the language used to describe women’s bodies and lives does nothing to reveal or dismantle the oppression itself.
This is because the conceptual framework that is driving the change in language - and stretching and distorting the categories of man and woman into meaninglessness - is fundamentally wrong. And badly so.
Sex as fiction
The political driver behind these linguistic changes is the ‘trans rights’ movement, which bases its arguments on the most extreme and illogical aspects of queer theory. Many trans activists insist that to even question the precepts that they advance is actively hateful, even fascistic in nature - witness the social media furore when any celebrity, such as JK Rowling, dares to say that the word ‘woman’ means a female person. But it is neither hateful nor fascistic to question arguments that have neither intellectual nor political integrity.
I will quote from Judith Butler’s book Gender trouble1 - first published in 1990, and often hailed as a foundational text of queer theory - and its 1993 follow-up, Bodies that matter2, to illustrate the thinking behind the current trans activism movement. Queer theory is an unashamedly post-modernist, anti-materialist and psychoanalytic school of philosophical thought that frames sex, sexual behaviour and sexual identity (being gay, bisexual or straight) as social constructs, and takes its arguments so far that it claims that the two sexes (not just gender, but the sexes themselves) are fictional. The phenomenon of intersex is thought to prove that sex is not ‘binary’, with only two possibilities, but exists on a spectrum between male and female (I, among many others, have debunked this notion elsewhere3). But in queer theory, gender is not just “the social significance that sex assumes within a given culture”.4 Queer theory goes much further, purporting that the two sexes themselves are social constructs, like money or marriage. Thus gender replaces sex altogether: “... if gender is the social construction of sex, then it appears not only that sex is absorbed by gender, but that ‘sex’ becomes something like a fiction, perhaps a fantasy.”5
Therefore, according to queer theory, male and female are not objective realities, but ‘identities’. Everyone is required to fit into one or other of those two ‘identities’ in order to enforce reproduction through “compulsory heterosexuality”:
The category of sex belongs to a system of compulsory heterosexuality that clearly operates through a system of compulsory sexual reproduction … ‘male’ and ‘female’ exist only within the heterosexual matrix … [and protect it] from a radical critique.6
It is therefore through the power of language, and the naming of male and female, that gender oppression is created; and it is by the power of language that it can also be defeated. In order to dismantle the oppression that has resulted from this categorisation, it will be necessary to implement an “insidious and effective strategy … a thoroughgoing appropriation and redeployment of the categories of identity themselves … in order to render that category, in whatever form, permanently problematic”.7 This feat is to be achieved specifically by “depriving the … narratives of compulsory heterosexuality of their central protagonists: ‘man’ and ‘woman’”.8 The category ‘women’ is particularly promoted as being ripe to be emptied of meaning. It should be
a permanent site of contest … There can be no closure on the category and … for politically significant reasons, there ought never to be. That the category can never be descriptive is the very condition of its political efficacy.9
It is evident that the programme of queer theory is working, in the sense that it is changing and dismantling the language. But does the whole of gender oppression across history really originate in the simple naming of male and female? Because, if it does not, then this new movement is a dead end that is ultimately doomed to failure as far as challenging the structures that bear down on women’s lives.
While it is true that human thought and culture must have developed in tandem with the particulars of our species’ sexual behaviour, reproductive biology and mating systems - such as menstruation, which, although not unique to humans, is unusual among mammals - it is futile to protest that sex did not exist prior to the emergence of the human race.
Queer theory, however, rejects any understanding of human sex or gender that involves biological sciences. Our evolutionary history simply disappears in a puff of smoke:
... to install the principle of intelligibility in the very development of a body is precisely the strategy of a natural teleology that accounts for female development through the rationale of biology. On this basis, it has been argued that women ought to perform certain social functions and not others; indeed, that women ought to be fully restricted to the reproductive domain.10
For those who believe that reproduction is the only societal contribution appropriate to the class of people that possess wombs, by virtue of the fact that they possess wombs, altering the use of the word ‘woman’ cannot change that. It is the reproductive ability itself, not the words used to describe it, that the argument is based on. Nothing materially changes - moving words around will not change the position of the uterus, or its function. It is as futile as rearranging the labels on the deckchairs on the Titanic. Or like renaming the Titanic itself after it has hit the iceberg - thus, miraculously, the Titanic will not sink after all.
Many of the abuses and exploitations that oppress women target the real sexual and reproductive aspects of women’s bodies - our materiality - so a materialist analysis is essential. Can any such analysis work, when its starting point is that sex is a fiction?
Applying Occam’s Razor - accepting the simplest explanation that can account for all the facts - queer theory’s conceptual framework does not cut the mustard. If sex is a fiction invented to enforce heterosexuality and reproduction, it leaves vast swathes of the picture unexplained. An analysis worth its salt would bring together multiple, seemingly different, inexplicable or unconnected aspects of social and cultural attitudes to sex under one schema. A materialist analysis that takes into account the reality that there are two meaningful reproductive sex classes fares far better, and explains far more of the problematic - and often bizarre - social and cultural practices and attitudes around sex.
Is it not a far better explanation that people became aware of the blindingly obvious early on in human development - that there are very clearly only two reproductive roles, and that the anatomical features associated with each are astonishingly easy to identify at birth in nearly all humans? And that the possession of those distinct anatomies resulted in them being named, in the same way that other significant natural phenomena are named - because, irrespective of any relative value placed upon them, they actually exist?
Leaving aside that blatantly obvious counterargument, there is a further problem with queer theory: homosexuality just does not need to be eradicated in order to ensure reproduction. Why? Because occasional heterosexual intercourse, at the right time, during periods of female fertility, is all that is needed. A woman could sleep with a man just once or twice a month, and have it away with another woman for 20-odd nights a month, with exactly the same reproductive outcome. While it is true that there would be no reproduction if every sexual encounter was homosexual, strict heterosexuality, or anything approaching it, is not required to ensure childbearing. Likewise, a fertile man can sleep with a woman a few times a year and be almost certain to father children. And since one man can impregnate many women, significant numbers of men could be largely or exclusively homosexual without any impact on the number of children born - so why persecute and punish homosexual behaviour so severely?
The ‘compulsory heterosexuality’ argument has no basis, once examined in this light, and thus a central plank of queer theory falls easily.
Queer theory proposes that the so-called ‘complementary’ aspects of masculine and feminine behaviour have been created by culture in order to justify the compulsory pairing of male with female. Genders, including the two sexes themselves, are understood to be performative: brought into being by repeated ‘speech acts’ that, through the appearance of authority and the power of naming, actually create that which they name.
Thus, each individual assumes - or grows into, takes on and expresses - a ‘gender’ that is encouraged, promoted, and enforced by social expectations. I broadly agree that many of the observable average differences in male and female behaviour are largely culturally created, and reinforced by oft-repeated societal expectations. The fact that the expectations have to be so often stated, and sometimes violently reinforced, is testament to the fact that those differences are in no way innate, but are driven by the requirement to conform. But the origin of the expectations of ‘complementary’ male and female behaviour is not, as queer theory suggests, to counteract homosexuality and force the pairing of male with female.
The specifics of masculine and feminine behaviour do not point towards such a conclusion. Why is feminine behaviour submissive, while masculine behaviour is dominant? Why not the other way around? Why must one be dominant and the other submissive at all? Wouldn’t a hand signal do instead? How do the particular, specific manifestations of gender serve the purpose of enforcing heterosexuality and eliminating homosexuality, when many of them, such as FGM, reduce heterosexual behaviour in heterosexual women? True, any enforcement would require bullying of some kind, but why is it that so much of the bullying related to sex focuses on (heterosexual) women, and so relatively little on heterosexual men? Why is virginity in women prized but of little account in men? Why is so much actual heterosexual behaviour, that could lead to reproduction, so viciously punished? Why are women punished, humiliated, shamed far more than men for sexual promiscuity - heterosexual promiscuity? Why is it girls, not boys, who are the primary victims of child marriage practices? Why, in so many cultures, are women traditionally not allowed to own property, and children are considered the property of the father and not the mother? What answer does queer theory have to all this? None. It is not even framed as a question that needs to be answered.
Patriarchy
All of these disparate cultural practices spring sharply into focus when we understand the simple rule formulated by Friedrich Engels, the primary and founding rule of patriarchy, which exists to enforce the rights, not of men in general, but specifically of fathers: when property is private, belonging to male individuals rather than shared communally, women must bear children only to their husbands.
Why? Because the mechanics of reproduction mean that, while a woman can be certain the children she is raising are indeed her own, a man cannot - unless he knows for sure that the children’s mother cannot have slept with any other man. Thus when private property is concerned, men have a strong motivation to ensure that the children to whom they pass on their wealth are their own offspring. Herewith the origins of monogamous marriage. And with it, as an integral part (indeed as a driving force), the origins of women’s oppression - or “the world historical defeat of the female sex”, according to Engels.11
The gender rules developed in order to ensure paternity and inheritance. This simple explanation takes us a long way to understanding the specifics of how gender oppression manifests itself globally, in the enforced submission of women to men, and specifically to their husbands, and in seemingly disparate cultural values and practices that prevent women from having heterosexual sex with multiple male partners, outside of marriage, or punish them if they do.
How do men, individually and collectively, stop - or attempt to stop - their wives from sleeping with other men? Promises are not enough, as we know. How do you stop anyone from doing something they want to, from expressing their own desires? You bully them. You humiliate, threaten, harass, attack and perhaps - occasionally - even murder them. In these multiple ways you seek to enforce compliance, through assuming social dominance and forcing social submissiveness and subordination. Society and culture evolve around these values, and develop in ways that satisfy the needs and desires of the socially dominant group. Meanwhile members of that socially submissive group are discouraged from banding together (they might mount a revolution), and learn to adapt their own behaviour to avoid harm. And, since conflict is costly, disruptive and traumatic, both groups develop strategies to signal their social position, to defuse and avoid conflict and possible injury, with social rules and expectations developing around these behaviours.
The global hallmarks of masculinity and femininity would be recognised in any other primate species as the unmistakable signs of social dominance and social subordination. Socially dominant primates (and other mammals, plus many other vertebrates) make themselves large, take up space, monopolise resources. These are the core components of masculine behaviour. Subordinate animals drop or avert the gaze, make themselves small, move out of the way, and surrender resources. These are typical feminine behaviours. In primates, attending to the needs of the dominant members of the group, by grooming, is also characteristic of social subordinates. In humans, grooming as such has been replaced by a far broader suite of behaviours that involve serving the needs of the dominant class.
Gendered behaviours and the social values attached to each sex reflect this pattern worldwide. Societies globally and throughout time promote and encourage these masculine and feminine behaviours - better understood as dominant and subordinate behaviours - as appropriate to men and women respectively. Western cultures are no exception.
The enactment of dominance (‘masculinity’) and subordinance (‘femininity’) can be understood as partly learned and partly innate. Innate, in the sense that the expression of these behavioural patterns is an instinctive response to a felt social situation, or social position - anyone will signal submissiveness in the presence of a threatening social dominant who is likely to escalate dangerously if challenged. Thus, nearly everyone signals submissiveness extremely effectively, and unconsciously, as soon as they have a gun pointed at their heads. And it is hard not to display these behaviours, when we feel ourselves to be in the presence of a socially dominant or subordinate individual or group.
So femininity is a stylised display of primate submissiveness - a behavioural strategy that reduces or avoids conflict by reliably signalling submission to social dominants. Members of either sex, when they find themselves towards the bottom of any social hierarchy, deploy different, but similarly ritualised and reliable, submissive gestures. Examples include bowing, curtseying, kneeling or prostration before monarchs; the doffing of caps with downcast eyes and slumping shoulders in the workplace; and the kneeling and bowing (in prayer) that is such a large part of patriarchal organised religions. It is easy to recognise such gestures as signals of submission to social superiors, and they should be opposed as manifestations of social hierarchies that need to be abolished as an implicit part of the project for universal liberation. Neither the bowing and scraping of the dispossessed nor the arrogance and high-handedness of the wealthy should be welcomed or celebrated. It is time to apply the same approach when it comes to gender.
Moving beyond their instinctive component, the specifics of so-called ‘feminine’ or ‘masculine’ behaviour are learned and then practised until they become habitual; and sometimes deployed consciously and strategically. People do what other people do; children start to mimic others around them, especially those they perceive to be like themselves, at a very young age, perfecting gestures, postures and vocal tones that may be cultural or, within each culture, gendered. Learned and practised from a young age, it is no wonder that these behaviours can feel like a natural part of a person’s core being - especially when they also incorporate an instinctive response that is deployed after rapidly gauging the level of threat posed by others. In addition, both sexes are explicitly taught to behave as expected - and so the dominance of males and the subordination of females is reinforced and perpetuated from one generation to another.
Anything that undermines the position of men as dominant and female as subordinate is a threat to the established order. Thus the second rule of patriarchy: men must not act like women, and women must not act like men.
This explains why homosexuality, cross-dressing and other forms of refusal to conform to gendered expectations are persecuted in many societies. For men to start acting ‘like women’, either sexually or socially – ie, submissively, which has come to include being penetrated sexually - would be to undermine and threaten the superior role of all men. Similarly, for a woman to act ‘like a man’ is a shocking insurrection - she must be kept down, and such behaviour has to be punished and made taboo. Since clothing and other behaviours are cultural markers that help to distinguish between the two sexes, cross-dressing breaks this law very blatantly. And further, to allow cross-dressing potentially allows the mixing of the sexes in ways that could undermine paternity rights.
On this reading, then, the persecution of homosexuality, cross-dressing and all other forms of gender non-conformity originated secondarily from the enforcement not of compulsory heterosexuality, but of compulsory monogamy for women in the interests of ensuring paternity rights. This is an important distinction, for, while it accepts that gendered behaviours and values are cultural, it acknowledges the material existence of the two sexes as a real and significant phenomenon, with powerful influences on societal development.
Combating oppression
Understanding and placing ourselves as animals with real, material, biologically sexed bodies - rather than the smoke-and-mirrors erasure of sex and materiality itself that queer theory promotes - gives us a far more powerful tool to understand and combat the oppression of women, and homosexual and transsexual or transgender people, than queer theory’s baseless speculations ever can.
It explains not only the different social and cultural values and expectations around men and women, but it also explains many of the specifics of what they are and why the expectations are so strongly hierarchical. Women must be submissive to men (‘feminine’) because they must be controlled - from the male perspective, in order to bear children fathered by the man who controls them. From their own point of view, they must allow themselves to be controlled, and teach each other to be controlled, in order to avoid injury or worse. It also explains widespread cultural practices that control the sexual lives and reproduction of women - from FGM to child marriage, to taboos around female virginity and pregnancy outside of marriage. These things happen because sex is observable, and real, and known from birth. At birth, it is in nearly all cases blatantly obvious whether a person can be reasonably expected to be capable of bearing a child, or of inseminating a woman, and it is on this basis that the two sexes exist as classes. To suggest otherwise is to enter the realm of absolute fantasy, or at least of extreme idealism, which indeed queer theory does, since “to ‘concede’ the undeniability of ‘sex’ or its ‘materiality’ is always to concede some version of ‘sex’, some formation of ‘materiality’.”12
The current queer theory-led trans movement seeks to dismantle the second law of patriarchy - men must not act like women, women must not act like men. We do indeed need a movement against sex-based oppression that acknowledges and unites against that law. We need to work towards a world where qualities like strength, assertiveness, caring and gentleness are rewarded, encouraged and promoted in both sexes rather than mocked and punished when they are exhibited by the ‘wrong’ sex; where it is impossible for men to act ‘like women’, or women to act ‘like men’, because gendered expectations attached to each sex no longer exist and anyone can, without censure or even mild surprise, be an engineer or a carer, be logical or emotional or wear a dress or make-up or high heels or a tie or cut their hair short, irrespective of their sex. But to pretend that the sexes themselves do not exist is a nonsense. And it is a dangerous nonsense, when it obscures and denies the existing power relations between men and women.
Female oppression is not an inevitable consequence of the differences between male and female bodies. Yes, the fact that men are bigger and stronger on average can make it easier for them to establish social dominance through direct physical threat; while the risk of being left literally holding the baby and having to provide for it can put women in an economically vulnerable position, where social subordination is a likely outcome. But under different material conditions - and a different value system - there is no reason why we cannot shed these destructive, dysfunctional habits of gender that oppress and limit our humanity.
There is nothing inherent in being a man that makes men oppress women - it is their position in society that allows them to do it, and rewards women who collude with them. Power is the ability to harm without being harmed yourself, and therefore, with sufficient motivation, many people when they have power will use it to cause harm. Currently, men very frequently have that power in relation to women, and so they use it, resulting in very many harms. When, within any given social grouping or class, men occupy a position of power with respect to women, it is not an inevitable effect of human biology: it is a position gifted by property, by wealth, by tradition and by law.
We must seek to rebalance power to prevent harm. That involves, among many other things, abolishing both masculinity and femininity - no progressive cause should support or perpetuate a social system in which dominance is encouraged in one group, while social submissiveness is promoted in others. It is absolutely contrary to all ideas of human dignity and liberation. How could any liberatory movement adopt a position that posits an innate, inescapable hierarchical system at the heart of human nature, with close to 50% of humanity born inescapably into a submissive role?
But in today’s gender debate, the position of queer theory-inspired trans activists is exactly that. For them, to be a ‘woman’ is not to be female, but to be ‘feminine’- in other words, to be a ‘woman’ is to be submissive. It is here that we begin to see the true social regressiveness of this supposedly liberatory movement. For, while it is understood that biology does not determine the gender of trans people, the flipside of that argument is that most people’s gender is indeed innate, as social conservatives have always thought. Why? Because, according to trans activism, most people are ‘cis’ - they ‘identify’ as the gender they were born into. If 1% are trans, then 99% are cis; perhaps being trans is more common, especially if it includes the non-binary category, but still the vast majority of people are cis. So, since most people born with female reproductive systems are ‘cis’ women, they are supposedly innately feminine, which is to say, innately submissive, subordinate, and servile. Meanwhile a similar proportion of people born with male reproductive systems are considered to be ‘cis’ men: innately masculine, and therefore born into a socially dominant role. It is likely that many activists and well-meaning people on the sidelines of this debate have not thought it through far enough to understand that this is the logical and necessary conclusion of their arguments.
While most trans activists avoid definitions like the plague, such a conclusion is borne out by the attempts of some to redefine ‘woman’ and ‘female’. Definitions of ‘woman’ include such gems as: “a person who acts in accordance with traditional gender roles assigned to the female sex” and “anyone that culturally identifies and presents as the combination of stereotypes and cultural norms we define as feminine” or “adhering to social norms of femininity, such as being nurturing, caring, social, emotional, vulnerable and concerned with appearance”. And femaleness is “a universal sex defined by self-negation … I’ll define as female any psychic operation in which the self is sacrificed to make room for the desires of another … [The] barest essentials [of femaleness are] an open mouth, an expectant asshole, blank, blank eyes.”13
This is what we are fighting. It is why we are fighting. We refuse to submit.
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EUROPEAN FILM FESTIVAL RETURNS 2019 FOR CAPE TOWN, JOBURG & PRETORIA
Johannesburg, Pretoria and Cape Town are in for a ten-day feast of award-winning films as the highly anticipated European Film Festival celebrates its 6th edition in South Africa. The festival will be held simultaneously at Cinema Nouveau theatres in these three cities from 29 November to 8 December. This carefully curated festival is packed with Oscar-nominated and multi-award-winning films from twelve countries including Austria, Belgium, France, Germany, Ireland, Italy, Netherlands, Poland, Portugal, Spain, Sweden and the United Kingdom.
The Films
Opening the festival is the French film Les Misérables, which won the Jury Prize at the Cannes Film Festival in 2019 and then picked up Best International Feature Film at the Durban International Film Festival in July. Inspired by the Paris riots of 2005, witnessed first-hand by director Ladj Ly, the film revolves around three members of an anti-crime brigade who are overrun while trying to make an arrest. It has been selected as the French entry for the Best International Feature Film at the 92nd Academy Awards in 2020.
Representing Austria, Styx depicts the transformation of a woman sailor when she becomes the only person to come to the aid of a group of refugees shipwrecked on the high seas. Olly Richards (Time Out) says of the film: ‘A vital, highly intelligent movie that is both a first-class thriller and a biting commentary on our current world.’
The highly awarded Girl, from Flanders Belgium, tells the story of 15-year-old Lara who dreams of becoming a ballerina. Lara however was born into the body of a boy, she is undergoing treatment in preparation for gender reassignment surgery and the film illustrates some of the tough challenges she must face, both physically and psychologically, as a dancer, and as a person in transition.
System Crasher is Germany’s choice for next year’s Oscars. This intense journey witnesses the untamed high-energy antics of nine-year old Benni as she swings from sweetness to aggressive wild-child, causing danger and despair to all around her, including the social welfare services trying to help her.
Set against a housing crisis in Dublin, the Irish film Rosie is a riveting account of a remarkable woman trying to protect her loved ones and maintain their dignity when they lose their home. It examines how even in times of crises, the love and strength of a family can endure.
Women are the heroes, villains and victims in The Vice of Hope, a social drama about poverty, African immigration, human trafficking and the surrogacy business in towns around Naples (Italy). But change is coming, at least for the protagonist, Maria, who finds a link to her past, and her future.
The outrageously wacky Diamantino is perhaps best expressed by Cath Clark in her review in The Guardian (UK): ‘If Cristiano Ronaldo fell asleep after gorging on year-old camembert, his dreams could not match the bizarre bonkersness of this enjoyably throwaway romantic sci-fi satire from Portugal about a megastar footballer who falls victim of a government cloning plot.’
My Extraordinary Summer With Tess is a sensitive Dutch coming-of-age drama for all age groups. It follows a young boy and a girl on their paths of self-discovery as they cross the threshold from childhood to adolescence, and into the realization of the importance of family.
Praised as his best work in years, Oscar-winner Pedro Almodóvar’s 21st film Pain and Glory won two awards at Cannes 2019. Starring Antonio Banderas and Penelope Cruz, this semi-autobiographical narrative tells of a series of re-encounters experienced by a film director in physical decline, and his need to recover meaning and hope. Pain and Glory is Spain’s entry for next year’s Academy Awards.
Cold War is a passionate love story between a music director and a singer whose meeting in the ruins of post-war Poland continues across Berlin, Yugoslavia and Paris. A tale of a couple separated by politics, character flaws and unfortunate twists of fate, Pawel Pawlikowski’s sumptuous black and white masterpiece of auteur cinema won Best Director prize at Cannes before earning three Oscar nominations at the Academy Awards in 2019, with five European Film Awards before that.
Swedish documentary Push is an important film for the activists. It follows Leilani Farha, the UN Special Rapporteur on Adequate Housing, as she travels the globe, trying to understand who’s being pushed out of the city and why. Commenting on how global finance is fuelling the housing crisis and making cities unaffordable to live in she notes: ‘There’s a huge difference between housing as a commodity and gold as a commodity. Gold is not a human right, housing is.’
The United Kingdom participant in this year’s festival is Official Secrets, directed by South Africa’s most celebrated director Gavin Hood, who won an Oscar with Tsotsi in 2005. Based on true events, Official Secrets tells the gripping story of Katharine Gun (Keira Knightley), a British intelligence specialist who leaks a memo in which the United States enlists Britain’s help in collecting compromising information on United Nations Security Council members in order to blackmail them into voting in favor of an invasion of Iraq. Following its presentation during the festival the film will go on public release from 13 December.
Festival director and curator Peter Rorvik points out that “a central thread within all the films is the search for a sense of self and meaning in a world where things often fall apart around us, where systems break down, where that search becomes an imperative lifeline.”
The newly arrived European Union Ambassador to South Africa, Dr Riina Kionka, expressed her support for the festival, saying, “The European Film Festival is a showcase of recent award-winning films and provides a snapshot of issues and themes that inspire European filmmakers and audiences. As the many topical stories show, lived experiences in Europe are not that dissimilar from life in South Africa … or elsewhere, for that matter. Film is a cornerstone of our European cultural and creative industries and the rich diversity of European cinematic approaches on show will be a delight to critics and publics alike. Don’t miss out on this smorgasbord of great entertainment!”
See http://www.eurofilmfest.co.za/ for detailed synopses, trailers and links to the screening schedule and ticket bookings.
The European Film Festival 2019 is a partnership project of the European Union’s Delegation to South Africa and twelve European Member State cultural agencies or embassies based in the country. They are: the General Representation of the Government of Flanders, the French Institute in South Africa, the Goethe-Institut, the Italian Cultural Institute, the British Council, and the Embassies of Austria, Belgium, Ireland, the Netherlands, Poland, Portugal, Spain, and Sweden. The project is organised in cooperation with Ster-Kinekor Cinema Nouveau and Cineuropa and is coordinated by Creative WorkZone.
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Overview and Analysis of Anti-Trafficking Bill
The article has been written by Subodh Asthana, a student of Hidayatullah National Law University. The author has discussed and examined the provisions of Anti Trafficking Bill(Trafficking of Persons for Prevention, Protection and Rehabilitation) in his article.
Introduction
Human trafficking is one of the most essential problems which our country is dealing with, it is a perilous threat to our society as it leads to gross violation of fundamental human rights.
Article 3, paragraph (a) of the Protocol to Prevent, Suppress and Punish Trafficking in Persons defines Trafficking in Persons as the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.
Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.
So as to counter this situation there is a dire need of strict regulation and a retributive punishment because our country is a favourite spot for traffickers and according to a report India has the highest number of human trafficking with most of the trafficking not reported.
Thus to counter human trafficking, anti-human trafficking bill was introduced on May, 2016 in Lok Sabha with strict provisions, but mere provisions cannot suffice the purpose of a peaceful society there also need to be strict implementation of the act so as to counter human trafficking from the country and to establish a peaceful and a crime free society.
Human Trafficking Menace
Human trafficking means the selling and buying of the human body for evil purposes which are forbidden by law or are opposed to public policy. It could be within the physical boundaries or it could be trans- international.
The primary motive behind any crime is money which is a capital generator for these goons who are involved in this trade. As per the reports of the International Labour Organization about $150million were generated from the trade in India. It basically involves forced labour, sexual exploitation of body, surrogacy, trading of organs from the human body, trafficking of children so as to exploit them.
Sometimes there are instances that persons are kidnapped but most of the time these traffickers are keeping a hawk eyes on poor persons whom they are targeting and when they get into any financial difficulty they play their evil game.
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Need for the Regulation
In Modern era, there needs to be tough regulation on these criminal and illegitimate activities because human trafficking in India has got to a sensitive level from where it needs to stop and the criminals must have an apprehension of stringent punishments and persecutions.
A prominent headline in The Hindu last week declared ” An unsavoury fact: India tops global slavery index.” A U.S. State Department report estimates that up to 65 million people were trafficked into forced labour, both into and from India. More recently, research reveals that India has the highest number of people trapped in modern slavery, with over 18 million people enslaved.
This is multiple times more than some other nation in the world. The Crime India Report 2016 by the National Crime Records Bureau revealed that in the year 2016, 15,379 unfortunate casualties were dealt and 23117 casualties of dealing were safeguarded (this incorporates people dealt in the earlier year) constrained into different types of abuse. It is basic to make reference to that there were instances of dealing with transgenders which unmistakably infers that the offence of dealing isn’t constrained to a specific class or sex. Additionally, 1,11,569 kids were accounted for missing in the year 2016, that is dared to have been dealt with or kidnapped for exploitative purposes.
It is the obligation of government to concoct this intense guideline since Article 23 of Indian Constitution discusses making the offence culpable.
Prohibition of traffic in human beings and forced labour
Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with the law.
Nothing in this article shall prevent the State from imposing compulsory service for a public purpose, and in imposing such service, the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them.
Section 370 of Indian Penal Code, 1860 also talks about the offence, but there needs to be a proper mechanism to regulate and control these grave offences of high gravity. The rationale behind this is that mere criminalisation of these offences is not a real solution there need to be some rehabilitation centres for these victims and more severe punishments for traffickers to cover some of the loopholes and fill the vacuum so that no offender is spared.
India’s minister for women and children announced a draft of the first-ever comprehensive anti-human trafficking law in 2016. The draft “Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2016” has been generally well received by practitioners and civil society working for decades on this issue and it was presented in Lok Sabha by the Minister of Women and Child Development, Ms Maneka Gandhi on July 18, 2018.
The Bill accommodates the avoidance, salvage, and restoration of dealt people. A large number of youngsters, ladies, men, and transgender are being sold into servitude of constrained work and prostitution every day. There is a pressing need to set up a system for a survivor-driven legitimate structure which enables unfortunate casualties to be saved and restored.
Overview from Chapter 1 to 4 of Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018
Chapter 1
The first chapter of the bill or proposed law has been divided into two sections with their subsections, which explains the proposed law. Section one of the bill states the name of the proposed law, its territorial jurisdiction which is valid across all states except that of Jammu and Kashmir and it shall become law by an official gazette notification, i.e. by print notification in a newspaper by Central Government.
Section two of the bill explains the terms and terminology used in the proposed law. Basically, it gives the definitions of the terms that are described in the act. It defines nineteen terms used in the act, i.e. aftercare, appropriate government, child, district anti-trafficking committee, fund, narcotic drugs, notification, placement agency, prescribed, protection home, psychotropic substance, special home, a special court, exclusive agency, investigating officer, state anti-trafficking committee, victim and welfare officer.
The parent act of the bill is Juvenile Justice (Care and Protection of Children) Act, 2015 because it states to take meanings of those terms that are not described in the proposed law.
Chapter 2
This chapter is also divided into two sections viz. section 3 and section 4 with its sub-parts or sections.
Section 3 of the act tells that appropriate government must appoint by notification, a district anti-trafficking committee to keep a check and for exercising the powers and performing such functions and duties concerning prevention, rescue, protection, medical care, psychological assistance, skill development, need-based rehabilitation of victims.
Section 3(2) states the composition of the District anti-trafficking committee, the committee must consist of: a District Judge or Collector as Chairperson, social workers, a person nominated by district legal service authority and a district officer of social justice or women development department.
Section 3(3) and 3(4) describes as after what time period the committee has to meet( which is 3 months) and the committee is independent to regulate its procedures and decisions respectively.
Section 4 of the act states about the procedures in the relation of victims of trafficked persons as who has to power to present victim before the members of district trafficking committee.
The Bill also provides for the setting up of Anti-Trafficking Units (ATUs) at the district level. ATUs will deal with the prevention, rescue, and protection of victims and witnesses, and for the investigation and prosecution of trafficking offences.
Chapter 03
This chapter states about functions of state human trafficking committee as stated under the section of the act.
It states that requisite Government shall establish State Anti–Trafficking Committee to check the enforcement of the statute and shall supervise the State, Union Territory Government and District Anti-Trafficking Committee in the cases pertaining to prevention, of trafficking, protection and rehabilitation of victims of trafficking in persons.
Under the act, the state government shall appoint a State Nodal Officer who will be responsible and accountable for: (i) to perform the actions and duties which have been enlisted in the Anti-human trafficking bill (ii) to provide relief and rehabilitation services to the victim of the crime. The state government shall also appoint a Police Nodal Officer at the state and district levels.
Section 5(1) states the composition of the State human anti-human trafficking law cell.
Chapter 04
It states the description, composition and function of central anti-trafficking law as stated under section 6 of the act. Section 6(1) constitute a Central Anti–Trafficking Advisory Board headed by the Secretary, Ministry of Women and Child Development and representatives from the concerned Ministries, State/UTs and members from civil society organisations.
Section 6(2) states about functions as to protection, rehabilitation and implementation of the decision of the committee.
Essential purposes and functions of the Bureau cover as follows.
(i) Ordering and looking at overseeing along with experienced sends
(ii) Making simple over-seeing, Enforcement and stop before-hand steps at the starting point, going across (from place to place) and place where one is going points,
(iii) Supporting ordering between law enforcement agencies and non-governmental organisations and other interested organisations, and
(iv) Increasing bonds between nations and together with authorities abroad for news having the same, and standard lawful help.
Overview from chapter 5 to 8 of Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018
Chapter 5
Chapter 5 of the bill talks about section 7 as to the establishment of a specialized agency for the investigation of offences. It has been given the power to work independently without any political pressure so as to control these offences and illegal traffickers have to be presented before special courts and victims before the respective committees formed under the proposed law or act.
Chapter 6
Chapter 6 of the bill talks about the establishment of various support services given by the government to the victims which have been provided in three sections viz. section 8, 9, 10 of the bill.
Section 8 states about Protection homes which are to be maintained by the government for the protection, rehabilitation of the victims, it also specifies that houses could be managed directly by the government or voluntary by any organisation, but it will be under control of the government. Government by forming protection homes have an obligation to provide food, shelter, protection and all the other things that are necessary for existence which has been provided in section 8(2).
Section 9 states the establishment of distinctive homes in each district, which has to be controlled by the appropriate government for providing long term institutional support for rehabilitation to victims. Rehabilitation of victims will not be dependent on criminal proceedings being initiated against the accused, or the outcome of the proceedings.
Section 10 states that all the special and protection homes have to be registered by the government under the name of this act as the procedure prescribed by the appropriate government.
Chapter 7
Section 11 in the proposed law states that appropriate government shall frame necessary schemes, programmes specialised schemes which are necessary to facilitate them and to provide rehabilitation to these victims so as to protect them from re-trafficking.
Section 11(2) states that state government have to provide some schemes to prostitutes or women carrying out sexual activities so as to form part and parcel of mainstream societies and prevent them from the illegal activities.
Chapter 8
Section 12 in this chapter talks about placement agencies which means any government or private organisation have to register itself under the provisions of the act within such time and in the manner prescribed by the appropriate government and if any placement agency violates the provisions as per the proposed act the licence and registration of that agency could be revoked, cancelled or suspended as the case may be.
Overview from chapter 9 to 12 of Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018
Chapter 09:
Chapter 09 of the proposed law deals with the punishments of some offences which has been specified or helps in the facilitation of these offences that are carried by traffickers. Basically, this section expands the scope of the crime and disaggregate the offence of trafficking with increased punishment and fine.
Section 13 of the bill deals with punishment of any person in charge of special homes or protection homes and it describes the imprisonment which may extend to one year or a fine, not less than 1 lakh rupees.
Section 14 of the act deals with punishments as regards to the placement agencies if they contravene or disobey any provision laid down in law shall be punishable with imprisonment which may extend 3 years or with fine not less than 50 thousand rupees.
Section 15 of the act deals with punishment of any disclosure of a victim’s identity in the form of any communication media like news, report, e-media etc. If the owner of this media contravenes this clause he/she shall be persecuted with imprisonment which may extend to 6 months or fine of one lakh rupees.
Section 16 and 17 of the act states the punishment if it is used or there is the application of threat of narcotic drugs, psychotropic substances, chemicals for the purpose of trafficking or exploitation of human body has been strictly punishable under the act. It also covers sexual exploitation by usages of these substances of which the punishment may extend to 10 years and not less than 7 years and a fine not less than 10 lakh rupees.
These offences have been also covered under section 19 of the bill which states them as non- bailable and cognizable offences which no person covered under offences of section 16,17 be released unless a special public prosecutor is appointed and he is able to reject the grounds of offence and the court is convinced on the reasonable grounds that the accused is not guilty of an offence and he is likely not to commit any offence while he is given bail.
Chapter 10
Chapter 10 of the act deals with Confiscation, Forfeiture and Attachment of the property. Section 20,21 and 22 of the act deals with it.
Section 20 of the act states that if the property in possession or ownership of that property is used for committing offences as under section 16 and 27 or such form of trafficking the property may be forfeited or confiscated by the government as per the order by special courts that have to established by the proposed act. The special court has the power to confiscate or transfer the immovable or movable properties attached to land if the trial results in the conviction of the accused.
Section 21 states that the burden of proof for confiscation or forfeiture of property shall be on accused, the person who has been accused of the trafficking offence under the provisions of this proposed act.
Section 22 gives the power to state or the central government to take the cognizance if the trial has not yet begun by the court and it gives the power to appropriate government to forfeit the property of the alleged person by writing an application to district judge under whose jurisdiction the forfeiture or confiscation of property is involved and if by any reason the property is not able to be forfeited then the money in that value would be forfeited and the alleged person has to give an affidavit about the scheduled money or property where it has been discovered that offence has taken place.
Chapter 11
Section 23 deals with the establishment of Special Courts in each and every district so as to provide a speedy trial for the offences that have been covered under section 370-373 of the IPC and in consultation with the chief justice of the respective high courts make session courts as special courts.
Section 24 states that courts shall presume that offence has been committed by an alleged person under provisions of section 370-373 of IPC until the contrary has been proven.
Section 25 states that all sections of criminal procedure codes have to be followed.
Section 26 states that every special court has to appoint a Special Public prosecutor for purpose of the matters falling under the act and he/she shall be qualified public prosecutor satisfying all the eligibility and practice of not less than 10 years and a decent track record of work.
Section 27 states about procedures about recovery of fines like there will be instances that victim’s money in return of the work has been not paid or there are unpaid back wages or any other losses unpaid by the accused, the special courts have been power under this act to take action and recover fines, penalties from accused property and restore the same to the victim even if the punishment has been given to the accused in the form of imprisonment. The court is also free to take action on any other form of trafficking if it is found.
Chapter 12
It contains some miscellaneous provisions of the bill or the proposed act.
Section 28 talks about the appointment of investigation officer by respective state governments.
Section 29 talks about the creation of anti-trafficking fund so that expenses of the creation of rehabilitation centres and different homes could be met with.
Section 30 talks about mandatory reporting of the victim by a police officer or any public servant to the nearby police station or district special homes or magistrate or a person-in-charge.
Section 31 and 32 deals with repatriation of a victim to another state or country respectively for increased protection or rehabilitation centre of home state or country as the case may be.
Section 33 talks about an appeal as to after special court the matter could be appealed in the high court and it is stated that since the offence is of grave nature it must be tried to disposed of within three months and if bail is refused by the special court it could be appealed in the high court.
Section 34-39 deals with the power of central and state government to make laws.
Section 40 states that any person who is below 18 years of age is not guilty of the offence and provisions that have been described in the act.
Section 41 describes that the proposed law should be in contravention to any other law which has already been in force in India.
Criticisms of the bill
According to some of the lawyers and eminent jurists, there are various flaws or criticisms in the bill or the act which have been put forth by them in front of Women Child Development or the body concerned with the drafting of the bill which are as follows.
Neither clear nor comprehensive
Significantly, in arranging off a request regarding the matter of dealing, for example Prajwala v Union of India W.P(C) No. 56 of 2004, the Supreme Court, in its request dated December 9, 2015, recorded the MWCD’s accommodation that it had set up a board of trustees to think about existing laws, recognize holes and draft a thorough administrative system covering all parts of dealing. By and by, exercises that establish “dealing of people” are tended to by a scope of laws, which make complexities and consequently a similar issue has not been managed in the bill,
No examination or reasonable justification behind the Bill
Before, recommendations to change against dealing laws have been educated by research and evaluation of holes in the reaction to dealing. In 2002-2003, the National Human Rights Commission (NHRC) directed a countrywide investigation of the issue and delivered two voluminous reports on “Dealing in Women and Children in India“.
Discoveries of the NHRC report provoked the MWCD to move the Immoral Traffic (Prevention) (Amendment) Bill, 2006. Also, the Criminal Law Amendment Act, 2013 which prompted the order of sections 370 and 370A of the IPC against dealing and abuse of a dealt individual separately, depended on the proposals of the Justice Verma Committee Report, 2013, in connection to laws on sexual offences.
The Anti-Trafficking Bill has not been gone before by any considerable research or examination. Given that the NHRC consider is over 15 years old and in the middle of, new arrangements have been established in the IPC against human dealing, the MWCD should have dispatched an audit before leaving on this authoritative exercise.
Quite a bit of what is proposed as of now exists
The Anti-Trafficking Bill does not rethink dealing but rather consolidates the current definition under section 370, IPC. It, be that as it may, makes another class of “exasperated types of dealing”, which convey a base sentence of 10 years, which may reach out to life detainment.
A portion of the exasperated types of dealing presented in the Bill is “dealing for the motivations behind constrained work, asking, marriage and kid bearing”, which, as noted above, areas of now condemned under section 370 of IPC. Quite a bit of arrangement in the bill is one and the same thing.
No fair treatment
Criminal equity shields and fair treatment ensures have been watered down significantly, with no support. No astuteness in applying criminal law to an improvement issue. The issue of dealing can’t be disassociated from destitution, vocation, removal and security.
Individuals have and will dependably move for work, regardless of whether out of misery or for better chances.
Chilling impact on wellbeing and social security programs
The Anti-Trafficking Bill will chillingly affect wellbeing and government managed savings programs for helpless networks, including sex labourers, who will in general fall under the corrective system of against dealing laws. There is no mechanism to determine the forced and consensual sort of work.
Conclusion
Human Trafficking is thus a very heinous offence as it violates all the basic human rights of a person , it includes all the offences like trading of human body, organs and forced labour even many more offences which are not under the ambit of the scope of the law, human trafficking as a crime is a threat to a society as it decimates or destroys by causing harm to mankind.
Thus to handle the situation and for not making present situation worse, there needs to be law for protecting the basic rights of victims and also person who are victimised by these unfair and unethical offences which are in violation of basic human rights there needs to be a regulation and a tough law so as to curb these offences because our country has a very poor rankings in Slavery Index and is a victim of human trafficking, a large number of crimes have been reported in the recent years relating to human trafficking.
To tackle the present situation “The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018 was presented in the parliament in May 2016. The bill contains various provisions relating to provisions of establishing homes for victims of human trafficking, punishments, fines and also some provisions of speedy disposal of the trials so as to make no scope for the offender to take advantage of late trials and enjoying his life outside and threaten the victims, moreover the bill also covers the provision of giving food, shelter and some basic necessities to the victims so that they could recover physically and mentally.
But, there are some drawbacks too, like bill or act is not at all comprehensive it fails to cover the actual definition of human trafficking because all the laws create complexities about the definition as to what is human trafficking, also some provisions of supreme court were also ignored, the bill is also drafted in a vague and ambiguous manner creating a very small scope.
Therefore, in order to curb these effects government must try to address all the loopholes and should try to widen the scope of the act so that these heinous offences are not at all repeated again and again which would automatically lead to a peaceful and joyful society.
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‘I will not give them the baby’: the plight of Cambodia’s detained surrogates | Erin Handley and Kong Meta
Women lured by the chance to escape poverty explain how they have gone from being treated as victims to criminals
Sopheap* coos as she cradles her newest grandson, just five days old. She puts her nose to his head and drinks in his scent. She looks every bit the picture of the proud grandmother, as her young son and his exhausted wife look on.
But this is not a typical post-birth glow; their nativity scene is watched over by police guards.
The new mother, Malis*, and her son are prisoners in a hospital on the outskirts of Phnom Penh with 31 other women, all surrogates hired by a company to deliver babies to Chinese clients.
I will not give them the baby. I will raise him myself, Malis says. When I saw him, I loved him already.
Police rounded up the 33 women in late June during a raid on an illegal surrogacy ring. A Chinese national and four Cambodian women were arrested and charged under Cambodias anti-trafficking law.
Cambodias health ministry banned commercial surrogacy in late 2016, but a law is still being drafted. The recent arrests show that the industry continues to thrive in the shadows.
Chinas rising infertility rate and the scrapping of its one-child policy have also led to an increase in Chinese parents seeking out surrogacy options abroad, although the subject remains taboo.
Initially, 32 of the women were placed in the care of the Christian anti-trafficking NGO Agape International Missions. Weeks later, the surrogates were arrested and charged with human trafficking.
Now, Malis faces the prospect of raising a child she was paid to deliver an agreement she entered into because she is impoverished and in debt. Giving up the child could mean up to 20 years in prison, she fears.
The question now is whether the boy belongs to her or the wealthy Chinese parent who is genetically linked to him. Its very hard for me. Its painful for me to think about, Malis says, wiping at tears. I feel sorry for my child, that he must stay in this room with me.
People suspected of being intermediaries for surrogacy are escorted by police officers through the municipal court in Phnom Penh. Photograph: Kith Serey/EPA
Before, they considered us victims
Malis and her husband have a familiar story of financial desperation. They went $2,000 (1,533) into debt to get married last year. He suffered an injury in a traffic accident and she left her $100-a-month dishwashing job to care for him.
After he recovered, she looked for factory work but was unsuccessful. Then, an unnamed woman in her village approached her saying she could earn $9,000 for carrying another persons child. I didnt know it was illegal, she says. Before, the authorities just considered us as victims, but now they charge us.
There are varying accounts of the number of babies born to the Cambodian surrogates. According to anti-trafficking official Chou Bun Eng, there are at least nine children, including a set of twins.
But Nhem Sok, the hospital director, said just seven babies had been born to the surrogates detained in his centre. Three women had miscarried, he said, at three, four and five months into their pregnancy. Another baby was stillborn.
Women whose families cant afford to ply guards with money or food are handcuffed to the bed during or after labour. In one case, according to Malis, a woman didnt make it to the delivery hospital on time she gave birth surrounded by the other surrogates supporting her, with no doctors or midwives present.
Waving through the bars of the hospital windows, some women cry out: Help us, sister!
One woman, speaking from inside the hospital by phone, says she previously worked in a factory for low wages. She was on her feet 12 hours a day. After surrogacy, other women in her village had been able to afford motorbikes and new homes. She opted in, but now says she was naive. I will not give this baby to anyone, no matter how much money they give me, she says.
She doesnt know if she will be able to feed and support the child, but believes the alternative is prison. I am very scared. Since I was born, I never faced such a thing, she says, crying.
The Cambodian parents are now grappling with whether to tell their child the truth about their roots. Many say they wouldnt. I dont want the baby to know because I dont want the child to get hurt, says one soon-to-be father.
Sam Everingham of Families Through Surrogacy, an NGO supporting the surrogacy process, says: It must be a devastating time for these Chinese intended parents, particularly given they might have no chance to meet their own biological children.
He says that while the government must be frustrated by surrogacy agencies flouting the rules, the current case was heavy-handed. Charging surrogates is an extraordinary approach, particularly where these women may be illiterate and have no understanding of recently introduced laws, he says.
Dr Patricia Fronek, a senior lecturer at Australias Griffith University who specialises in international surrogacy, says that the surrogates are considered mothers by law and by birth and should be allowed to keep the babies. But, she adds, no one should be forced to raise a child they dont want.
Surrogate mothers should not be prosecuted as they are the least likely to benefit from any transactions, she says.
But Chou Bun Eng, from the National Committee for Counter Trafficking, says an amnesty period for those involved in surrogacy ended in January this year. She says it is unlikely the surrogates did not know the practice was illegal after information was shared on TV and other media. We try to take care of the mother because we want to protect the victim in the womb. The mothers are not the victims, she says.
For Malis and Sopheap, loving a child isnt limited by genetics. Sopheap herself adopted a seven-month-old baby from an orphanage after his parents died of HIV. Every child, when I hold them, I feel love. Its not necessary to be biological, Sopheap says.
*Names have been changed to protect identities while the case is still under investigation.
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Rahime Erbas, Cross-Border Surrogate Motherhood from a Criminal Law Perspective, 2 Fiat Iustitia 27 (2019)
Abstract
The role of state in an economic model and its consequence in genealogy fuse with the sovereignty of the state, coined as bio-politics and bio-power by Michel Foucault, as a power over life and death. To illustrate, punishing abortion or allowing new productive technologies could be regarded as issues lying on the sovereignty of the state. Surrogate motherhood appears as one of the challenges of the 21st century due to these two concepts. As opposed to earlier times, the current more advanced stage of scientific, technological, communication and traveling possibilities plays an essential role. Furthermore, the legal perception of surrogacy in a global perspective lies on the grey area. In other words, whether it is legal or prohibited varies from country to country, which creates a legal loophole. Here is the way in which the advent of surrogate motherhood defies the state’s sovereignty on its bio-politics and bio-power.
Cross-border surrogate motherhood cases in law comes first at the legal recognition of the child by the country of the requesting people. As a matter of fact, its legal consequences appear firstly at civil law, inter alia, family law. Criminal law, with its subsidiary character, rises up by basing on the concepts, the definitions and the presumptions of civil law. Seeing these developments, to ensure individual human rights and prevent them from being victims or perpetrators of any crimes due to the cross border practiced surrogate motherhood cases, the question on where criminal law is supposed to stand rises, with which this study aims to explore. To be more precise, it mainly explores surrogacy as a possible criminal law issue. Additionally, the necessity on creating international legal documents in any form will be questioned.
1. Introduction
A remarkable case before the ECHR, the Grand Chamber, Paradiso and Campanelli v. Italy 20171, evidently displays the criminal law dimensions of surrogate motherhood’s cross border practice. Because in Italy, surrogacy is stipulated as a crime, thus that the child born through surrogacy is put up for adoption for an irrelevant couple may be theoretically read like a confiscation of a human being as a criminal asset (!).This is exactly where the surrogacy explicitly touches on the criminal law, but is not limited with these, i.e., some other significant consequences exist in criminal law regardless of surrogacy finds its place in the form of a prohibition, e.g., a crime or of permission in the regulation, which this study aims to address and examine.
In that case, an Italian couple, after having previously tried the unsuccessful ended medically assisted reproduction techniques and child adoption procedure, become involved in a surrogacy in Russia. According to the couple’s claim, the wife travelled to Moscow to submit her husband’s seminal fluid. After a successful in vitro fertilization, two embryos were implanted in the womb of the surrogate mother. When the child was born, he was registered as the son of the Italian couple with the written consent of the surrogate mother, in exchange of the payment of almost 50,000 euros by the couple. Having received the Russian birth certificate, she applied to the Italian Consulate in Moscow for the document enabling the child to leave for Italy with her. As soon as she arrived with the child in Italy, the Italian Consulate in Moscow informed the relevant Italian authorities that the document regarding the child’s birth was based on false information. A criminal investigation against the couple for the charges of “misrepresentation of civil status”, “use of falsified documents” and the other crime in the Adoption Act was initiated. DNA tests were carried out, but the results showed that no genetic link between the couple and the child existed. Subsequently, the child was removed from the couple and placed in a children’s home by the court order. All contact between the couple and the child was prohibited and the child was put up for adoption2. Ultimately the Grand Chamber held no violation of art. 8, right to respect private and family life3.
This is a surrogacy case from Italian criminal procedural law, whose approach is coherent with its civil law. In fact, surrogate motherhood is an issue whose legal consequences appear firstly at civil law, inter alia, family law. Criminal law, with its subsidiary character, rises up by basing on the concepts, the definitions and the presumptions of civil law. As a matter of fact, it begins with the question of how to define motherhood in civil code. In Roman law-oriented countries, just as Italy, Turkey or Germany etc., “mater semper carta es”, the Latin expression for “motherhood is always certain” (Klock & Lindheim 2018), continues to prevail (Council of Europe, Committee on Bioethics 2018, p.43-44; Metin 2012, p.42). What brings out as a problem in this approach is the paternity, due to the fact that the woman who gives birth is naturally considered the legal mother of the child. This is the traditional approach of the motherhood on which a woman uniquely entails all the different roles of motherhood which include biological, gestational (carrying the baby in her uterus), and social (childrearing) by her own. The question on the traditional definition of motherhood arises where these roles are divided and shared by the multiple women, thanks to advances in the current scientific, technological and communication as well as traveling possibilities, which renders motherhood comparable to fatherhood in the determination of filiation (Engel 2014, p.1-2). In this context, to Firestone, “pregnancy is barbaric” (Firestone 1972, p.198) that indicates biological inequality between woman and man could be diminished by the surrogacy thanks to high- tech procedures (Purdy 1996, p.183), because a woman can deliver the burden of pregnancy (gestation) to another woman (Purdy 1996, p.184). As a matter of fact, Firestone articulates that “artificial reproduction is not inherently dehumanizing. At very least, development of an option should make possible an honest reexamination of the ancient value motherhood” (Firestone 1972, p.199).
These possibilities are, on the one side, a challenge to laws and ethics, but on the other they bring chances for individuals to reach their reproductive rights and freedoms. It is even possible to argue that the advent of surrogate motherhood defies the state’s sovereignty exercised on the administration of life, coined as bio-politics and bio-power by Michel Foucault (Foucault 1978). Because whether surrogacy is legal or prohibited varies from one country to another, a legal loophole exists for those who resort to surrogacy. From the legal point, globally practiced surrogacy functions as a weakening factor on the national legal norms, however. Furthermore, since it may be linked to prostitution, forced pregnancy, human trafficking and exploitation and other types of crimes (Profesionales por la Ética 2015), it concerns criminal law.
Seeing these developments, to ensure individual human rights and prevent them from being victims or perpetrators of any crimes due to the cross border practiced surrogate motherhood cases, the question on where criminal law is supposed to stand rises, with which this study firstly aims to deal. To this end, this study begins with describing what surrogacy is indeed and how it is carried out in a cross border way. Then it explores surrogacy as a possible criminal law issue. Doing so, it firstly questions whether it can be considered as a crime against humanity by virtue of distortion of the new generations on their genome. Then the concerns on which a woman’s body at the disposal to satisfy a desire and child for sale will be analyzed. Secondly, regardless of its prohibition and permissions varying from country to country, the probable criminal law reactions that occur from seeking legal recognition and the protection of the life and health of the mother and her child. Finally, the necessity of creating international legal documents in any form will be questioned.
2. The phenomena of “surrogate motherhood” and the number of people involved
“...A woman who carries a child for another person and has agreed before pregnancy that the child should be handed over after birth to that person” refers to surrogate mother pursuant to Council of Europe (Texts of the Council of Europe on bioethical matters 2014, p.105). This is a simple definition based on how it is exercised in real life.
Surrogacy is, however, a highly controversial issue on which moral, ethical and legal debates exist. Therefore, it has a variety of definitions depending on whether the author stands for or against it. To illustrate this, from a counter-view, it is similar to offering “wombs to hire, sell or rent” and “a method of exploitation”, and even a form of “abuse and human trafficking” (Profesionales por la Ética 2015). However, from other side, it is a merely physical mothering, i.e., having pregnancy for others (Purdy 1996, p.184). From a simple neutral view, it could be formulated as “to create children for the purpose of transferring them” (Tomlinson et. al 1984, p.43). From a legal point of view, it is briefly a “contracted pregnancy” (Purdy 1996, p.184-185) that costs a considerable amount of money from almost 30,000 euros to more than 100,00 euros (Profesionales por la Ética 2015, p.3). To put it in a more conceptualized manner, it is defined as a “social arrangement” (Purdy 1996, p.183) “whereby a woman agrees to carry a fetus for another individual or individuals and deliver it after birth” (Margalit 2016, p.44). It is mainly presented as a type of medically assisted reproduction (Profesionales por la Ética 2015, p.1). Nonetheless, pursuant to Council of Europe, Principle 15, “any contract or agreement between surrogate mother and the person or couple for whom she carried the child shall be unenforceable” (Texts of the Council of Europe on bioethical matters 2014, p.107).
The reasons why individuals desire to resort to the surrogacy vary. It may be due to biological reasons such as infertility, or legal reasons such as long-drawn-out procedures for an adoption. It could also be for psychological reasons. For example, while some women enjoy their pregnancy, others do not (Purdy 1996, p.185). In addition, surrogacy may serve the creation of a traditional family such as same-sex couples or single people (Purdy 1996, p.185). One of the main reasons for the surrogate mother to go through this process is generally to gain financial rewards, i.e., to earn money (Profesionales por la Ética 2015, p.2: Salama et al., 2018, p.1284). For instance, a Thai surrogate mother utters that “my husband agreed because we didn’t have money to pay our debt and I didn’t need to have sex with another man” (Murdoch 2014).
Surrogacy is indeed an outcome of the advent of scientific, technological, communication and traveling possibilities that render possible the division of the different roles of motherhood such as biological, gestational (carrying the baby in the uterus), and social (childrearing), which is traditionally carried out by a woman on her own (Engel 2014, p.1-2). Therefore, depending on how much components of motherhood is provided by the surrogate mother, it is mainly divided into two types as traditional surrogacy and gestational surrogacy. While in the traditional surrogacy she provides two components of motherhood which include the genetic material of the ovum and the gestational contribution, in the gestational surrogacy she makes only the gestational contribution (Ladomato 2012, p.247; Margalit 2013, p.426).
At the outset what is of importance according to the law is how much, at least genetically, the surrogate mother contributes in bringing a child to the world. In other words, gestational surrogacy where the child does not carry any genetic relation with the surrogate mother includes more legal challenges. And secondly, and most importantly, it is impossible to prevent de facto application of surrogacy due to surrogacy’s cross border practice that owes the divergences among jurisdiction on the recognition of child, e.g., foreign birth certificate or court decision. That being the case, the responsibility of law- makers, is to regulate surrogacy in detail by the codes, not executive actions, and to ensure that the rights of the child and all parties are respected (Hakeri 2018, p.600; Ünver 2015, p.336).
From the standpoint of the rights and duties of individuals who are becoming part and outcome of surrogacy, some crime types may come to the surface. These individuals read as below, e.g., “child”, “surrogate woman”, “the family of the surrogate mother”, “requesting people” and “healthcare professionals”. Besides, depending on whether the ones of the requesting individuals are not used, “egg and sperm donor” can be added to this table. Furthermore, in some cases, the woman may be dragged into surrogacy by an individual or within a criminal organization.
Table 1. The schema of possible actors, contributors, and those affected of surrogacy practice
It is the law-maker’s choice and policy to decide who will be punished or protected by means of criminal law among the individuals above. For instance, in Turkey’s surrogacy legislation (art. 15 of the Organ and Tissue Transplantation Code), surrogate mother and the requesting people do not face criminal sanctions, whereas healthcare professions, egg and sperm donor do face.
3. Cross-border commercial surrogacy practice
Commercial surrogacy is listed among the cross border reproductive care, shortly referred as CBRC or fertility tourism have been gaining a widespread practice as “fertility treatments have become more global” (Salama et al. 2018, p.1277-1278). To illustrate this, an Australian couple goes to Thailand (Murdoch 2014); an Italian couple goes to Russia4; a German couple visits the USA5; a Turkish couple goes to Georgia (Hakeri 2018, p.588- 589) to undergo a surrogacy procedure. As a matter of fact, surrogacy, to a large extent, is prone to global practice. Firstly, because in many countries it is partially or wholly prohibited, whereas in others it is partly or wholly tolerated or even expressly permitted. For example, it is allowed in Albania, Georgia, Greece, Netherlands, the UK, Ukraine and Russia, whereas it is expressly prohibited in Germany, Austria, Spain, Italy, Switzerland, France and Turkey etc. (Profesionales por la Ética 2015, p.8; Salama et al. 2018, p.1282; Council of Europe, Committee On Bioethics 2018, pp.5-11). As for the major global market in commercial surrogacy, it consists of the USA, India and Russia (Salama et al., 2018, p.1282).
In addition, there are also diverse opinions regarding the legal recognition of the child in the country of the requesting individuals, which may legally recognize the child even surrogacy is prohibited. For example, although Germany explicitly prohibits surrogacy, which is considered a crime, the German High Court recognizes that the child belongs to the surrogate requesting German couple by considering the best interest of child and examining whether recognizing the other country’s decision may violate ordre public in Germany. Pursuant to the Court, in examining whether the decision violates ordre public, the rights guaranteed by the European Convention on Human Rights is to be taken into account6. In 2014 case in which a homosexual couple applied to a surrogate mother in the USA by using the sperm of one of the individuals and anonymously donated eggs, the German Federal Supreme Court (BGH) approved the decision of the California Superior Court, by stating that the requesting couple was to be considered legal parents of the child born through surrogacy7.
In another case, a German married couple that could not conceive a child got involved in a surrogacy agreement in the USA in 2011. The surrogate mother was implanted with embryos produced using anonymously donated oocytes and sperm cells of the requesting man after having agreed on basic and additional payments by taking into account the case of twin pregnancies. Immediately after birth, the District Court, County of Boulder, issued a decision that the applicants are parents of the children, with all rights and obligations of children born. The German couple traveled back with the children to Germany. The children have been living with them since. They applied for recognition of the foreign judgment in Germany. The paternity of the man was “practically proven” with a plausibility level of 99.99%. In the first instance the Court rejected the demand, but the German Federal Supreme Court recognized it by arguing that “a foreign decision granting the parents of a surrogate mother the parent status does not infringe the ordre public, as long as the child is genetically related to one of the requesting couple”8
4. Surrogacy as an issue of criminal law at large?
Surrogacy appears to be as controversial as incest among consenting adults or prostitution, and can be considered either as a crime or as legal, depending on a particular country’s decision. For example, Germany punishes surrogacy as a form of misuse of medically assisted reproduction (art.1 of the Federal Embryo Protection Act) and Turkey does punish the practice in the form of organ and tissue transfer, thus in art. 15 of the Organ and Tissue Transplantation Code, whereas Greece permits the practice of surrogacy by the civil code in art. 1458.
In Germany, surrogacy is stipulated as a crime in art.1 of Embryonenschutzgesetz [Federal Embryo Protection Act 1990] which states that “Anyone who undertakes to perform an artificial insemination or to transfer a human embryo to a woman who is prepared to leave her child permanently to a third party after the birth (surrogate mother) will be punished with imprisonment up to three years or a fine”9. Another significant example of the criminal status of surrogacy is from Italian law which states under Article 12 (6) of Law no. 40 of 2004, that “Whoever, in any form, produces, arranges or advertises the sale of gametes or embryos or surrogate motherhood is punished with imprisonment from three months to two years and a fine ranging from 600,000 to one million euros” (Council of Europe, Committee On Bioethics 2018, pp.6-7).
In Turkey, surrogacy is not separately regulated as a crime, i.e., within the crime against the integrity and health of the lineage since 2018. It reads as “anyone who donates, vaccinates, retains, uses, stores, and transfers embryos and reproductive cells in a way of contrary to this code, and also regarding embryos and reproductive cells, those who buys, sells, mediates for buys and sells, acts as a broker or motivates, leads, gives announcement and advertisement shall be punished with imprisonment for a term of three to five years and a fine of one thousand to two thousand days unless it does not constitute criminal acts that require a heavier penalty”10.
Several ways indeed exist from the aspects of the law to either prohibit or allow the practice of surrogacy. The regulations remain silent, or expressly permitted by putting its conditions. Either it could be explicitly forbidden by the law, but without any sort of sanction, or it can be stipulated in a form of crime. What is certain is that surrogacy contains uncertainties. Even these uncertainties merely capture the interest of criminal law. Hence, the main question is whether criminal law is to intervene in this issue or not. In the practice of surrogacy, of course, various types of crime such as coercion and human trafficking, prostitution or neglecting the child may occur. Apart from this, the question arises whether any legal reason to prohibit or punish surrogacy exists or not.
4.1. Distortion of new generations on their genome in a particular society or around the globe
A child who is born through surrogacy may have more than 6 parents. The egg owning woman, the sperm owning man, the surrogate mother, the husband of the surrogate mother and the woman or man who raises the child or indeed a totally different legal mother and father. This may ruin “the bases of social order” (European Institute of Bioethics 2011, p.2). As a matter of fact, for example, in the future, the sperm donor may be get married with whom carries his sperm in her genetic. This could be a genetic unforeseeable consequence of the surrogacy. The same consequence applies to the case of incest in which it is considered a crime in certain countries, such as in Germany, where it is not only a sexual crime, but also poses a threat to the new generation of German society (art. 173 of German Penal Code11). However, the acts of incest between consenting adults is not regarded as a crime in Turkey. On the other hand, the same applies to all type of the sperm or egg donation, even if they were only at disposal of the married couples. Therefore, in Turkey, surrogacy is not separately regulated as a crime, but, within the crime against the integrity and health of the lineage that includes donation of egg and sperm.
Even if surrogacy could be accepted as a cause for the distortion of a genome, this is not listed as a crime against humanity by the art. 7 of Rome Statute of the International Criminal Court, in art. 712 that sets forth the crimes against humanity which include murder, extermination, enslavement and torture etc. Hence, solely cross border surrogacy practice does not refer to a crime against humanity. However cross border surrogacy would be regarded as a crime against humanity if it were applied through sexual slavery, enforced prostitution, forced pregnancy, or any other form of sexual violence of comparable gravity, stipulated in art. 7/1- (g).
4.2. The woman’s body as a means to satisfy a desire
“The human body and its parts shall not, as such, give rise to financial gain”
reads art. 21, as “prohibition of financial gain”, of Convention on Human Rights and Biomedicine by Council of Europe. In this regard, surrogacy explicitly breaches this prohibition since the human body is used for commercial gains. However, the phrase “turns women into baby-making machines” (BBC 2015) in terms of surrogacy is objected by referring the right to self-determination as well as reproductive rights (Ünver 2015, p.334). Furthermore, arguing that rather than resorting to surrogacy, an adoption possibility exists is not a sufficient argument. In that regard, it is highly noticeable that there is a significant difference between adoption and surrogacy in terms of their orientation end. While in the purpose of an adoption is to “give a family to a child”, surrogacy aims to “give a child to a family” (European Institute of Bioethics 2011, p.2). Therefore, resorting to surrogacy may be directed to satisfy their desire in child such as having certain physical characters or carrying their genetic information even if it is partially (Metin 2012, p.10). This is explicitly contradicting to what the German philosopher Immanuel Kant wrote “humanity itself is a dignity; for a human being cannot be used merely as a means by any human being (either by others or even by himself) but must always be used at the same time as an end” (Kant 2005, p. 173). By doing so, the body of a woman serves to satisfy another person’s desire to have a child (Profesionales por la Ética 2015, p. 12).
The question lies on whether a woman can give her consent for this. The same applies to the case of a prostitution which is not considered crime in Turkey as long as it is practiced by a consenting individual. In the case of prostitution, individuals offer their bodies, in particular their sexual organs, to satisfy the desires of others, mostly in exchange for money, albeit for a shorter period than in surrogacy. For this reason, in many countries, women who choose to be a surrogate mothers are also prostitutes (Profesionales por la Ética 2015, p. 1). Therefore, if there is an agreement based upon a consent, merely offering or resorting to a woman’s body is not a crime. In other words, it is not possible to argue that commercializing a woman’s body, with her consent, should be formulated as a criminal activity. However, this brings us to another issue concerning surrogacy: the child who is not eligible to decide, even though she or he is the unique aim of the surrogacy.
5. The probable criminal law reactions where surrogacy is not allowed
5.1. Seeking Legal Recognition at Home
5.1.1. Fraud on paternity and filiation
Every legal system has its own understanding of paternity and filiation. For example, in Roman law-oriented countries which includes the majority of countries in Europe, filiation for motherhood is built by basing on who gives birth. In Turkish law, for example, the father of the child is the husband of the woman giving birth. Unless he does not reject the paternity, the biological father cannot recognize the child (art.295 of the Turkish Civil Code13). Within this understanding, a baby who is registered to a woman other than the one who gave birth constitutes fraud on paternity and filiation. Even if the legal mother is registered as a surrogate mother but the legal father is registered as the requesting individual, this may constitute a crime, if the surrogate mother is married. Therefore, if a surrogate mother is not married, the requesting man can recognize the child simply by notifying the judicial authorities. It would be crime in case the sperm does not belong to the requesting man, however.
Why is criminal law involved in protecting the accuracy of paternity and filiation which is defined by the civil code? Especially seeing that there are many types of paternity and filiation such as biological, social or judicial, e.g., adoption cases in which social filiation is present (Çakmut 2008, p.20) surrogacy cases can be considered under one of them as well. Therefore, a legal loophole exists to some extent. To illustrate, the case in which a married woman conceives a boy from her lover and has him registered as the son of her husband is not identical to the case in which the requesting man is registered as the father of the child to whom the surrogate mother has given birth. There is a difference in terms of gravity of unjust acts. Hence what the civil law establishes and recognizes plays a determinative role also in criminal law. It is noticeable that the current form of the crime, called as fraud on paternity and filiation, primarily protects the family order, but the interest of child comes secondarily. For instance, in the former Turkish Penal Code, applied between 1926 and 2005, which was codified from Codice di Zanardelli, this type of crime was regulated under the section titled as crimes against public morality and family order. When the civil code regulates family order in another way, the content and scope of this crime would change. Therefore, by merely relying upon surrogacy, it is not possible to argue that surrogacy itself implies fraud on paternity and filiation.
5.1.2. Fraudulent misrepresentation and forgery of documents
The automatic consequence of cross border surrogacy is to register the child in order to have the legal right to bring the child to one’s own country. After receiving the child from the surrogate mother, the requesting couple resorts to the competent authorities to get legal documents by presenting them as if the requesting woman had given birth herself or if the requesting man was the husband of the surrogate mother, or in some cases if he had had a sperm provider. As the case of Paradiso and Campanelli v. Italy14 shows that requesting couples applied to their own consulates abroad.
5.1.3. Breaching mandatory reporting statutes
It is obligatory to give notification of birth and death to the state authorities. In surrogacy cases, the parties of a surrogacy arrangement may avoid the notification of the birth of a child or a stillborn child. More importantly, there are mandatory reporting statutes especially for healthcare providers, for instance, physicians, nurses or midwives whose breach constitutes a crime, when they come across the clues showing that a crime is committed and do not inform of the judicial authorities (art. 279 and 280 of Turkish Penal Code15). The similar regulation exists in German Penal Code, but depending on unfulfilled some conditions (art. 139), healthcare providers are only obliged to inform about crimes that are planned (art.138). Therefore, where the surrogacy is considered a crime, healthcare providers may face these sort reporting duties.
5.2. The breach of legal duties to protect the child
In criminal law there are many provisions where the breach of the legal duties of parents or guardians of a child are stipulated as a crime. The main one is neglecting the child. By doing so, the child may be injured or even die, which is coined as a crime of commission. The other significant example is exposition infantum, or child abandonment. The children who were born in the arrangement of surrogacy are more likely to be under threat of the breach of these legal duties than those born in a traditional way, because the role of motherhood is divided among more than two people. By doing so, not everyone may have a strong enough adherence to fulfilling their legal duties. Besides, the legal duties are not regulated or even not recognized by the civil code for every participant of these surrogacy arrangements, at least not like as it were de facto applied. As the child is seen as a commercial product in an arrangement set up by spending considerable amount of money (Profesionales por la Ética 2015, p.1,3), if the requesting couple is not satisfied, for various reasons including undesired gender or a disability, the child may face abandonment. In this case who will be held as responsible in the case of death or injury of the child? Would it be the surrogate mother, the requesting couple, the egg owner, the sperm owner, the physician who performed the in vitro fertilization, or the physician who was involved in the delivery of the child?
5.2.1. Healthy and desired newborn
At first glance, it would seem unproblematic when the child was born healthy and desired in a surrogacy arrangement. The surrogate mother gives the child to the requesting couple in exchange for money and they all are satisfied. However, the fundamental challenges appear in not only definition of the law, e.g., motherhood, parental filiation etc., but also in presumptions of law such as expecting that mother giving a birth also cares for that child. This expectation receives its root on the natural gestational period, which is described as “the psychology of becoming parent” (Tomlinson et. al 1984, p.43). In other words, “when a child is conceived within a marriage, the law presumes that the biological parents are able and willing to look after its welfare, and we grant them the right to do so” (Tomlinson et. al 1984, p.42). To develop maternal instincts for the surrogate mother is not allowed. This implies particularly to the fatherhood, because biological father stands in a natural situation in which he can develop the necessary commitments by the time his child is born (Tomlinson et. al 1984, p.42).
This bring us to a challenge in terms of an ancient crime, which originated with Christianity, called expositio infantum, or child abandonment, which is a crime naturally bound to the woman who gave birth. To illustrate, at least in Turkish criminal law, in the case where a woman abandons her newborn, she will be punished, but it is not sought to determine whether her partner should be criminally liable or not as long as they do not live together or her partner was not present at time of the abandonment.
Assume these two hypothetical following cases: in the first one, because the requesting couple changed their mind, the newborn is abandoned by the mother who gave birth but who does not have any genetic relation to the baby. In the second one, the requesting couple receives the child from the surrogate mother, however, they later lose interest in the child. Who will be criminally liable if the child’s health is damaged or if it died? These cases may be considered as harming or killing through omission, failure to act, the crimes called commission by omission, when the abandonment occurred with intention or at least with dolus eventualis. In this regard, the question on who holds the legal duty to act arises. The duty to act serves as a normative component of these crimes, but is determined by the civil code. When the civil code does not recognize this parental shift in reality, the criminal code would be satisfied with formal truth, and would not seek the material one which is the main aim of criminal law. Otherwise, in order to reach material truth, the criminal law would be liberalized from the other branches of law, e.g., the civil code.
5.2.2. Unhealthy and undesired newborn
The probability of abandonment or failure to act to care and protect the child is more likely to happen where the child is born handicapped, and the object of the contract will not satisfy the requesting couple (European Institute of Bioethics 2011, p.2). Because people spend a considerable amount of money and the children turns out to be a commercial product and hence subject to a quality control (Profesionales por la Ética 2015, p.1, 3), does the surrogate mother have a right to abort? (European Institute of Bioethics 2011, p.2).
A woman in Thailand struggling with debts was offered to be a surrogate mother for an Australian couple. After the injection of a fertilized egg into her uterus, she surprisingly become pregnant with twins. However, during the routine control it was discovered that one of them had down syndrome. The surrogate mother was told to have an abortion, but she refused due to her religious beliefs. After the birth, the Australian couple took the healthy girl and left her the boy with down syndrome. Nevertheless, the surrogate mother, under the threat of not being paid, lied to the Australian embassy in Bangkok that made it possible for the Australian couple to travel with the healthy newborn. The unhealthy one was left to the impoverished Thai surrogate mother. This is a case from 2014, reported as “Australian couple leaves Down syndrome baby with Thai surrogate” (Murdoch 2014). This is actually the point where the traditional criminal law approaches do not entirely capture the reality behind the formal accomplished facades. Therefore, in Thailand, law-maker pushed for a new legislation as “Protection of Children Born through Assisted Reproductive Technologies Act” (Hongladarom 2018, p.1).
5.3. The risks to life and health of the surrogate mother
Having a child is the unique aim in a surrogacy. The health of the surrogate mother is important only when it affects the child's health, i.e., during pregnancy. If a baby is born handicapped or if the gender is undesired, the surrogate mother may be forced to have an abortion. In other words, involuntary abortions may be performed, which constitutes a crime in every modern and democratic jurisdiction. Additionally, although many jurisdictions have a time limit of 10 to 12 weeks for the performance of voluntary abortion, these limits may be exceeded in surrogacy cases, which may expose threats to the surrogate mother. Besides, the woman may face health risks during pregnancy, while giving birth and even after the birth. As the child is a desired outcome, after the birth the surrogate mother must deal with health problems caused by the pregnancy on her own.
6. The necessity on creating international legal documents
Surrogacy, due to its cross border practice, has already captured attention of international, i.e., interregional organizations, Council of Europe. In 1989, in its Report On Human Artificial Procreation, in principle 15, titled as surrogate motherhood, it is prohibited by enabling exceptions under two conditions. The relevant provision follows as;
“However, states may, in exceptional cases fixed by their national law, provide, while duly respecting paragraph 2 of this principle, that a physician or an establishment may proceed to the fertilisation of a surrogate mother by artificial procreation techniques, provided that:
a. the surrogate mother obtains no material benefit from the operation;
b. the surrogate mother has the choice at birth of keeping the child” (Texts of the Council of Europe on bioethical matters 2014, p.107).
As for cross border application of surrogacy falls directly to the scope of Convention on Human Rights and Biomedicine by Council of Europe is of importance, as it aims to “protect the dignity and identity of all human beings and guarantee everyone, without discrimination, respect for their integrity and other rights and fundamental freedoms with regard to the application of biology and medicine” (Art. 1). With this purposes it includes provision on the consent, human genome, scientific research, particularly the research on embryos in vitro and organ transplantations, but not any medically assisted reproduction, inter alia, surrogacy as it is mainly practiced cross-border. What is more significant, is that it prohibits financial gain through the use of the human body and organs by stipulating that “the human body and its parts shall not, as such, give rise to financial gain” in art. 21. Therefore, this Convention, as opposed to the Medicrime Convention16, and is the most appropriate platform to deal with cross border surrogate motherhood as it primarily concerns civil law and ethics. This, by rendering its scope precise, would serve the compliance to the prohibition of financial gain through the use of the human body.
Conclusive Remarks
The legal goods protected by criminal law may be impaired in the application of surrogacy such as the right to life and health of the surrogate mother and the planned child, even if surrogate motherhood firstly appears as an issue, legal consequences related to civil law, inter alia, family law and criminal law entails a subsidiary character. Apart from applying surrogacy through forced pregnancy or human trafficking, cases in which surrogacy is applied with consent may fulfill the elements of several crimes, such as fraud on paternity and filiation, forgery of documents, or child abonnement etc. Due to surrogacy’s cross border practice that owes the divergences among jurisdiction on the recognition of child, e.g., foreign birth certificate or court decision, it is impossible to prevent de facto application of surrogacy. Therefore, on a national level, in order to protect the child and all parties involved, the surrogacy practice should not remain unregulated. As a matter of fact, the law- maker is to precisely regulate surrogacy by the parliamentary acts and not to leaves that issue to the executive power. By doing so, all negative consequences of surrogacy cannot be prevented, however, a large part could be. Further, such a regulation may facilitate an international cooperation in surrogacy’s widespread cross border practice. In any case it is better than turning a blind eye to the practice either within the country or abroad. Indeed, the application of criminal law tools may create immoral or unethical situations, e.g., the taking baby who was born in surrogacy from the requested people may be read as confiscation of a human being as a crime profit which itself surrogacy brings out.
Footnotes
ECHR 2017, Paradiso and Campanelli v. Italy [GC], no. 25358/12.
ECHR 2017, Paradiso and Campanelli v. Italy [GC], no. 25358/12, para. 9-50.
Idem, para. 216.
See ECHR, Paradiso and Campanelli v. Italy [GC], no. 25358/12, 2017.
BGH 2018, no. XII ZB 224/17.
BGH 2014, no. XII ZB 463/13, p.479.
Idem, p.484.
BGH 2018, no. XII ZB 224/17, p.54.
Das Bundesamt für Justiz, Embryonenschutzgesetz [Federal Embryo Protection Act 1990], viewed 16 March 2019 from https://www.gesetze-im-internet.de/eschg/BJNR027460990.html.
Art. 15 of the Law no. 7151 published in the Official Gazette of Turkey no. 30616/ 05.12.2018, viewed 22 August 2019 from http://www.resmigazete.gov.tr/eskiler/2018/12/20181205-8.htm.
Das Bundesamt für Justiz, Strafgesetzbuch (StGB) [Penal Code], viewed 22 August 2019 from https://www.gesetze-im-internet.de/stgb/BJNR001270871.html.
International Criminal Court, Rome Statute of the International Criminal Court, 2011viewed 22 August 2019 from https://www.icc-cpi.int/resource-library/Documents/RS-Eng.pdf.
Law no. 4721 published in the Official Gazette of Turkey no. 24607/ 08.12.2001, viewed 22 August 2019 from http://www.resmigazete.gov.tr/eskiler/2001/12/20011208.htm#1.
ECHR 2017, Paradiso and Campanelli v. Italy [GC], no. 25358/12.
Law no. 5237 published in the Official Gazette of Turkey no. 25611/ 12.10.2004, in force 01.06.2005, viewed 22 August 2019 from http://www.resmigazete.gov.tr/eskiler/2004/10/20041012.htm.
Council of Europe, Convention on the counterfeiting of medical products and similar crimes involving threats to public health, Moscow, 28.10.2011 viewed 22 August 2019 from https://www.coe.int/en/web/conventions/full-list/-/conventions/rms/090000168008482f.
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#reproductive justice#surrogacy#cross-border#surrogate motherhood#biopolitics#biopower#criminal law#assisted reproductive technology#international law#comparative law#bioethics
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