Who’s your mommy? (Surrogacy in the modern world)

By Siesta-friendly

Baby Manjhi has 3 mothers, probably even 6. Mommy # 1 is a Japanese woman who together with her Japanese husband, paid an Indian clinic to facilitate the surrogacy of their baby. Mommy #2 is the anonymous donor of the egg which was paired with Japanese husband’s sperm. Mommy #3 is the Indian surrogate (i.e, whose womb was used for gestation).

Mommy #4, if you will, is Manjhi’s Japanese grandmother who took care of Manjhi after birth because Mommy #1 had already then divorced the Japanese husband and wanted nothing to do with Manjhi while Mommies #2 and 3 had already performed their obligations and also did not want any further involvement.

Of course, there’s more to the story. Perhaps because Manjhi was not nursed by her biological mother nor taken care of by her surrogate mother, or perhaps because her grandmother who was then taking care of her was not careful with hygiene and sterilization, or more likely all of the above, Manjhi got seriously ill and required to be hospitalized. She was assigned a personal nurse while at the hospital who some may say is Mommy #5 and a new mother who served as her wet nurse is Mommy #6.

But, that’s not even half of Manjhi’s story. See, after Manjhi’s birth (which came after the divorce), Manjhi’s father and grandmother went to India to take Manjhi home to Japan but they were not allowed to do so because in India, a child’s mother must be present when the child gets his/her passport. Since the mother was not around and because India had no law on surrogacy, adoption laws were applied (yes, even as Manjhi’s father was her biological father) and India does not allow an adoption of a girl by a single father.

So for 3 months after her birth while a case was ongoing to determine custody, Manjhi had no birth certificate, effectively no nationality and in international legal limbo despite, or maybe because, she had so many mommies.

Fortunately, Manjhi is well now, in Japan, and is too young to be affected by the international legal controversy that surrounded her. But with an apparent burgeoning industry of cross-international-border surrogacy, Manjhi’s case may yet to be just the first of many. Unless more and more countries step up and enact laws to prohibit commercial (and international) surrogacy.

Custody

The case of Manjhi can occur in the Philippines. With also no law on surrogacy, we’ll be confounded with the same issues as the Indians if a similar case happened here. Although the Family Code covers artificial insemination, it only encompasses that of the wife and not of a surrogate nor does it cover an egg donor [see Art 164 of the Family Code].

In addition, what if the case were reversed? What if the Japanese mother, the egg donor and the surrogate all claimed legal custody? We won’t be prepared to handle such a case either.

No Human Trafficking

The legal wrangling even has an impact on human trafficking. Who’s to say that a couple who pays a clinic (or some online service or other) to get them an egg or a sperm or a surrogate, or all three, will not later – in a foreign country - exploit the child for profit, labor or sex, or all three? That may be an extreme case but not impossible to occur.

If the sperm or the egg, or both, belong to the would-be traffickers, who can stop them from getting custody of the child once the surrogate gives up custody since the traffickers are the biological parents? How does one prove trafficking in such an instance?

At least adoption laws are quite strict on background checks and other requirements to safeguard the child’s future well-being. But couples wanting to adopt can now forego that process via unregulated surrogacy. The government has no say at all in the matter. In fact, they most likely are unaware of who are involved, where they are, and/or what exactly they’re doing.

Do we really need to be also known for outsourced pregnancies? We ban the sale of organs, why not the sale of babies? We regulate overseas deployment of our workers to stem human trafficking, why are we lax when it comes to the most vulnerable members of our society? Other countries have banned commercial surrogacy, why don’t we?

Based on recent news reports, commercial surrogacy (the international kind to boot) is already offered here in the Philippines. We call on our legislators not to wait to mess up the life of another baby and enact a law specifically to prohibit commercial surrogacy and plug the loophole in human trafficking while they’re at it.

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Singing for your life (Turning State’s Witness)

By Obiter07

Imagine yourself to be formerly one of the staff of a high public official, maybe even that of a sitting senator of the Republic. You are party to the crime he has committed. You cannot deny it. Maybe you didn’t want things to happen but was helpless to stop it. And yet you don’t want to go to jail and pay the consequences. It could be that you even want to express remorse and make amends. What can you do?

One option available to you is to turn witness for the state and to sing against your confederates. This is pursuant to the following rule:

“Sec. 17. Discharge of accused to be state witness. – When two or more persons are jointly charged with the commission of any offense, upon motion of the prosecution before resting its case, the court may direct one or more of the accused to be discharged with their consent so that they may be witnesses for the state when, after requiring the prosecution to present evidence and the sworn statement of each proposed state witness at a hearing in support of the discharge, the court is satisfied that:

(a) There is absolute necessity for the testimony of the accused whose discharge is requested;

(b) There is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said accused;

(c) The testimony of said accused can be substantially corroborated in its material points;

(d) Said accused does not appear to be the most guilty; and

(e) Said accused has not at any time been convicted of any offense involving moral turpitude.

Evidence adduced in support of the discharge shall automatically form part of the trial. If the court denies the motion for discharge of the accused as state witness, his sworn statement shall be inadmissible in evidence.” [Rule 119]

Absolute necessity of testimony; No other direct evidence

The foregoing requisites have to be present. Absolute necessity is best seen in a conspiracy which is usually arrived at in secret. Only a co-conspirator can provide direct evidence of the commission of the crime for “who else outside the conspiracy can testify on what was concocted between the conspirators, but they themselves?” [Herrera, Remedial Law, Vol. IV (2001), p. 701].

Just recently, a gruesome murder was uncovered only through the cooperation of one of those hired to kill the victim. The witness’ statements implicated his 4 accomplices and the victim’s husband and the latter’s family as the masterminds. According to procedure, the witness has been charged with the crime together with the others he named but is expected to be discharged as state witness during trial. [Ramos, “Witness says 5 killers were paid P250,000,” Philippine Daily Inquirer, 06/15/2009, http://newsinfo.inquirer.net/inquirerheadlines/nation/view/20090615-210490/Witness-says-5-killers-were-paid-P250000]

Corroborating evidence

The third requirement is that there must be corroborating or supporting evidence. Your words alone won’t be good enough. For example, the testimony of the co-conspirator in a kidnapping was corroborated by the testimony of the victim himself.

“Neither does dela Cruz appear to be the most guilty of the accused. The trial court held that dela Cruz was not privy to the kidnap plan and was merely taken in later by the group because they suspected that she already knew too much. Did the lower courts properly consider the testimony of dela Cruz? It is a jurisprudential rule that the testimony of a self-confessed accomplice or co-conspirator imputing the blame to or implicating his co-accused cannot, by itself and without corroboration, be regarded as proof with a moral certainty that the latter committed or participated in the commission of the crime. The testimony must be substantially corroborated in its material points by unimpeachable testimony and strong circumstances and must be to such an extent that its trustworthiness becomes manifest. The testimony of dela Cruz was substantially corroborated by no less than the victim himself, Oliver, as well as Pedro.

The trial court's decision rested mainly on the harmony in the testimonies of Oliver and dela Cruz. During the direct examination, Oliver gave an account of how he was seized by four (4) armed men xxx PEOPLE vs. FAJARDO et al. [G.R. No. 173022. January 23, 2007.] [Formerly G.R. No. 144588]”

Witness appears not most guilty

You should not appear to be the “most guilty.” An example would be an accused who merely served as look-out in a killing:

“Moreover, the evidence presented by the prosecution in support of its motion to discharge Samuel as state witness shows that he is not the "most guilty." Said accused did not plot the killing of Jun Valerio like Antonio and Milagros. He did not volunteer to carry out the killing like his co-accused Martin Jimenez. Neither did he provide the vehicle which facilitated the commission of the crime like his co-accused Geronimo Quintana. At most, his participation appears to be limited to serving as a lookout. Surely, this act alone does not qualify him to be considered as the "most guilty." VALERIO vs. COURT OF APPEALS, et al. [G.R. Nos. 164311-12. October 10, 2007.]

Witness not guilty of moral turpitude

And then comes the last requirement, you should never have been convicted of any offense involving moral turpitude. This is described as an “act of baseness, vileness and depravity in the private and social duty which a man owes to his fellowmen or to society in general” as “everything in which is done contrary to justice, modesty or good morals.” Examples of crimes involving moral turpitude are estafa, abduction with consent, concubinage or murder. [Herrera, Ibid., p. 704.]

A lawyer was allowed to be discharged as a state witness in connection with the falsification of documents filed in official court proceedings against the accused and other court staff. Working together with all the accused, he had filed false documents with the court. He was allowed to serve as witness against all of them. PEOPLE vs. SANDIGANBAYAN, et al. [G.R. Nos. 115439-41. July 16, 1997.] It seems lawyers get the better end of the deal even when they are part of the crime.

And what do you get for your incriminating words against the accused? Your freedom.

“Sec. 18. Discharge of accused operates as acquittal. – The order indicated in the preceding section shall amount to an acquittal of the discharged accused and shall be a bar to future prosecution for the same offense, unless the accused fails or refuses to testify against his co-accused in accordance with his sworn statement constituting the

basis for his discharge.”

And if freedom is not enough, you get to assuage your conscience to some degree, such that despite your guilt, you have helped to make those who are most guilty serve their time in jail.

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Independence Daze

By Siesta-friendly

There are quite a few “moments” of Philippine Independence. The Philippines having been colonized twice: Spain from 1565-1898, the U.S. from 1901-1946. Plus, there were a couple of occupations: of Manila by the British from 1762-64 and of the entire nation by the Japanese from 1941–1945.

But official Independence Day is June 12 for it was on June 12, 1898 when the Act of the Declaration of Independence[1] was read in public and the Philippine Flag and the National Anthem (then instrumental) were formally adopted. So, it was more than independence from Spain that we declared that day but independence as a state as well.

Who cared?

Beyond Filipinos, apparently no one. The Spanish-American War was ongoing at the time (as a consequence of Cuba’s fight for independence from Spain and the U.S.A.’s willingness to help Cuba to feed its own desires for world dominance (what else is new). This is relevant to the country’s independence because the U.S. also wanted to annex other Spanish territories: Guam, Puerto Rico and the Philippines. This eventually happened upon the signing of the Treaty of Paris on December 10, 1898.

Incidentally, prior to the war, U.S. news reports had accounts of Spanish cruelties in Cuba. This fueled the American public to favor war. And eventually the U.S. invaded Cuba. Sound familiar?

To this day, the U.S. still owns Guam and Puerto Rico. Cuba, obviously not; although there’s this Cuban bay called Guantánamo over which it has jurisdiction and control even as the U.S. promised never to occupy Cuba. Well, okay, the promise may have referred to Cuba as a whole and not just a piece of it. Fine. The Philippines you ask? Well … yes and no but that’s another matter.

Going back to the independence issue: and so, whatever the Filipinos were doing in the Philippines (oh just the minor detail of winning its revolutionary war against Spain and declaring independence) was against U.S expansionism.

Mock and Draw

In their fight for independence, what did the Filipinos in was their trust of the Americans (again, what else is new). They were initially informed that they and the U.S. would form an alliance to fight oppressive Spain and to gain their freedom. Such naiveté. They even followed U.S. instructions to hold off their attack of Manila – which they had already surrounded and of which they were on the verge of taking control – to wait for their American allies (who unknown to them were forging a settlement with Spain).

Spain and the U.S. then staged a mock battle to allow Spanish soldiers to pull out of Manila and ‘surrender’ to the American soldiers thus excluding the Filipinos from the transfer of control.

If the Filipinos weren’t then surprised by the devious surrender, their complete shutout from the Treaty of Paris negotiations must have opened their eyes wide open to the reality of American annexation.

Treaty of Paris[2]

There are quite a few Treaties of Paris. But there was only 1 in 1898. And only 1 that forever changed the independent course of Filipinos. Since it is this treaty that ushered American era, influence and control (well beyond their official departure in 1946).

It is also the treaty that serves as a nationwide slap to Filipinos who were led to believe that their so-called allies were trying to help them gain independence. In truth, as embodied in the treaty, their ‘allies’ paid Spain $20M to buy their beloved Philippines.

American rule

Hence, with the capital, Manila, in their control, and the deed of sale (okay, treaty) in their hands, the Americans officially took control of the Philippines and for the next 5 decades, lorded it over the islands.

The Filipinos, of course, waged war against the new colonizers. But against U.S. military might and in the face of genocide (reportedly over 1 million Filipinos were killed amongst a population of 7 million), the Filipinos inevitably surrendered after 3 years.

The U.S. would later acknowledge Philippine independence (in the Treaty of Manila) but set the date to be July 4, 1946 the day they officially agreed to surrender control and relinquish sovereignty over the country.[3]

Regardless, the Philippines in 1964 enacted a law declaring Independence Day as June 12.[4]

President Manuel L. Quezon famously said he would prefer a government run like hell by Filipinos to a government run like heaven by Americans. Whatever you may think of his granted wish, it marks a people’s independence: that they can choose their own leaders and their destiny.

---

[1] Act of Declaration of Independence. Retrieved June 12, 2009, from Philippines-Archipelago Web site: http://philippines-archipelago.com/politics/documents/1898_declaration_of_independence.html.

[2] Treaty of Peace Between the United States and Spain; December 10, 1898. Retrieved June 12, 2009, from The Avalon Project Documents in Law, History and Diplomacy Web site: http://avalon.law.yale.edu/19th_century/sp1898.asp.

[3] Treaty Of General Relations Between The United States Of America And The Republic Of The Philippines. Signed At Manila, On 4 July 1946. Retrieved June 12, 2009, from United Nations Treaty Collection Web site: http://treaties.un.org/doc/Publication/UNTS/Volume%207/volume-7-I-88-English.pdf .

[4] Republic Act No. 4166, “An Act Changing The Date Of Philippine Independence Day From July Four To June Twelve, And Declaring July Four As Philippine Republic Day, Further Amending For The Purpose Section Twenty-Nine Of The Revised Administrative Code”, August 4, 1964.

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The Story of Stuff

In commemoration of World Environment Day (June 5), and to continue our efforts to inform, we present ...
Please take time to watch the video and learn more about what we've done to the environment, how we've allowed it, and how we can save the planet and ourselves. The 20 minutes you spend watching the video could be the most useful 20 minutes you've spent in a while.



Now, you've just learned some valuable lessons. Time to act.

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