While the previous chapters have dealt with the contents and similarities and differences of the 2016 Bill and the Standing Committee Report, this chapter aims to critically engage with their understanding and approach to commercial surrogacy using the perspectives of morality and autonomy, economic freedom and risks, as well as health approaches and the disability movement’s response to commercial surrogacy.
A Feminist Analysis
Surrogacy may influence the ways in which society views reproductive rights and enables them to be exercised. From this perspective, surrogacy may be a form of (patriarchal) alienation of women’s bodies and reproductive potential and performance, but also of a woman’s right to self-determination over her own (reproductive) body.
In India, as in the majority of countries, women are socially expected to become mothers and to ensure the descendance of the family. “Motherhood is central to the social construction of womanhood in India”; all other women’s roles are subordinate. In Indian culture, one of the objectives of life is also to transmit (genes) to the new generation, attaining immortality through reproduction. “Socially, the value accorded to biological parenthood within heterosexual marriage is far superior to the value accorded to voluntary childlessness, adoption or alternative family structures.” Even within that, the concepts of “fatherhood” or “parenthood” are not frequently or popularly used in the Indian context. Thus “mothering” or “motherhood” is a gendered notion that assigns a gendered role of procreation to women. Therefore, as in many other countries in the world, infertility in India has several negative consequences, especially for women: stigmatized marital instability, emotional harassment, low self-esteem. “When the continuity of a pure bloodline is threatened, individuals are likely to lose out on the incentives and since purity of bloodline is linked to women’s sexuality and reproductive functions, they are the ones who face the greatest stigmatization, discrimination, trauma and exclusion due to their infertility.” [1: Sama-Resource Group for Women and Health [2008], “Assisted reproductive technologies : autonomy or subjugation ? A case study from India”, Women’s studies international forum, n° 31, p. 319-325] [2: Dasgupta S. [2010], “Motherhood jeopardized: reproductive technologies in Indian communities”, in Chavkin W., Maher J.-M. (dir.), The globalization of motherhood. Deconstructions and reconstructions of biology and care, London, Routledge, p. 131-153.] [3: Sharma S. (dir.) [2013], Can we see the baby bump please? SAMA-Resource group for women and health, India, Magic lantern movies LLP, English/Hindi, 49 minutes] [4: Marwah V., Sarojini N. [2011], “Reinventing reproduction, re-conceiving challenges : an examination of assisted reproductive technologies in India”, Economic and political weekly, vol. 46, n° 43, p. 105] [5: Unisa S. [1999], “Childlessness in Andhra Pradesh, India : treatment-seeking and consequences”, Reproductive health matters, vol. 7, n° 13, p. 54-64] [6: Jejeebhoy S.J. [1998], “Infertility in India – levels, patterns and consequences : priorities for social science research”, The journal of family welfare, Family Planning Association of India (FPAI), vol. 44, n° 2, p. 15-24] [7: Banerjee S. [2012], “Emergence of the ‘surrogacy industry’”, Economic and political weekly, vol. 47, no 11, p. 29]
Commercial Surrogacy in India is viewed as a problem, and the State plays a patriarchal role, trying to ‘protect’ women from exploitation, however, ends up trying to control their sexuality and free choice. Both, the Parliamentary Committee Report as well as the Bill are of the paternalistic view that surrogacy is inherently exploitative, if there is any commercial interest involved. This assumption has often also been seen in arguments against legalizing sex work, since that tends to ‘exploit’ women. The existing view is that women cannot choose to remain in sex work just as women cannot choose to sell their womb for a price. This de-recognizes women’s exercise of agency with regard to their own bodies. It is an extremely important part of the patriarchal agenda to deny women agency over their sexual as well as reproductive labour, in order to control women more comprehensively. [8: Walby, Sylvia. “THEORISING PATRIARCHY.” Sociology, vol. 23, no. 2, 1989, pp. 213–234. JSTOR, www.jstor.org/stable/42853921.]
On the other hand, feminists have critiqued the usefulness of the corrective approach to equality as opposed to the protective approach, as the latter is often paternalistic, and restricts women’s right to life and liberty. The protective approach adopted by the 2016 Bill to a large extent, and the Parliamentary Standing Committee report to a smaller extent, denies women the right to choice and autonomy over their own bodies and reproductive labour, in the name of protecting them from exploitation. In contradistinction to this, they could have addressed the exploitative circumstances and made other stakeholders accountable, so as to disable the tendency to exploit surrogates. [9: Young, C. and Weiss, M. (1996). Feminist Jurisprudence: Equal Rights or Neo-Paternalism? [online] Libertarianism.org. Available at: https://www.libertarianism.org/publications/essays/feminist-jurisprudence-equal-rights-or-neo-paternalism [Accessed 6 Apr. 2019]]
The transactional process of surrogacy is often viewed as exploitative, or as immoral work. It is not counted as work economically either. There is social morality involved, where the ethical issues related to surrogacy are raised, and the economic pragmatism, wherein the modes and ethics of compensation are involved. The neo-liberal state that is otherwise into profit-making has suddenly come down to prohibit commercial surrogacy, which will decline the profits derived from medical tourism. There is a fear that because surrogacy will disrupt the patriarchal notion of family and motherhood that law, and the Indian state carry. Prohibition in the name of protection of surrogates can actually lead to further vulnerability and violation of rights of surrogates. Also, while there are attempts to mainstream surrogacy as a mode of parenthood, there is a passivity (as opposed to agency) accorded to the surrogate mother and a devaluation of her gestational labour. This goes against the grain of women’s empowerment. [10: Accessed from https://www.thehindu.com/news/national/medical-tourists-flocking-to-india/article24497896.ece on Apr 9th 2019 at 4:10PM]
A nine-judge bench of the SC unanimously affirmed privacy as a fundamental right under the Constitution. The bench recognised privacy as an inalienable right, grounded in values such as dignity which underlie all our fundamental rights, and it categorically located privacy in the individual. While judges phrased their conceptions of privacy differently, the bench commonly held privacy to cover personal autonomy relating to the body, mind, and to making choices – decisional privacy, as well as informational privacy. [11: Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors. WRIT PETITION (CIVIL) NO 494 OF 2012]
A key aspect of this personal autonomy is the gamut of sexual and reproductive rights, which entails rights to make sexual and reproductive decisions, as recognised by the 1994 United Nations International Conference on Population and Development (UNPIN 1994).
The prohibition on commercial surrogacy not only denies the willing surrogate the right to livelihood, and instead expects surrogates to perform reproductive labour without compensation, but also denies her bodily and reproductive autonomy. This ban also denies these women their right to dignified labour, thus diminishing their dignity.
The moralistic view taken up by both, the Bill and the Report is based on an understanding that no woman should make surrogacy her job- which begets the question: why?
There is a popular conception in India that becoming a surrogate means having sexual relations with a man other than one’s husband or partner. In that sense, surrogacy may be compared to adultery, even prostitution, which is particularly condemned in Indian society, and therefore fuels the stigmatization of this activity. Some feminists do compare surrogacy with prostitution: surrogates sell reproductive capacities while prostitutes sell sexual capacities. [12: PATRONE, TATIANA. 'Is Paid Surrogacy a Form of Reproductive Prostitution? A Kantian Perspective.' Cambridge Quarterly of Healthcare Ethics 27.1 (2018): 109-22. Print.]
Because of this “public imagination”, surrogacy is not accepted in India as work. Some feminists also argue that neither surrogacy (nor prostitution) is a professional activity. The French philosopher Sylviane Agacinski considers that the body is actually a working instrument, and that it is the services and products this body generates that are generally paid for, and not what this body is. She cites Emanuel Kant in stating that things have a price, and humans have a dignity. However, all authors who have studied surrogacy in India, as well as the majority of physicians and experts on surrogacy, agree in interpreting surrogacy as labour, a “gendered, exploitative and stigmatized labour, but labour nonetheless”. [13: Pande A. [2009], “It may be her eggs but it’s my blood : surrogates and everyday forms of kinship in India, Qualitative sociology, n° 32, p. 379-397] [14: Agacinski S. [2009], Corps en miettes, Paris, Flammarion, 138 p.] [15: Marwah V., Sarojini N. [2011], “Reinventing reproduction, re-conceiving challenges : an examination of assisted reproductive technologies in India”, Economic and political weekly, vol. 46, n° 43, p. 104-111]
What the prohibition on commercial surrogacy denies to surrogate women, thus, is their dignity, autonomy, agency and reproductive freedom. While it can also be argued that surrogacy contracts can be biased towards commissioning parents and leave the surrogates at a powerless position, it makes the need for robust regulations instead of a prohibition even more apparent.
A Health Perspective
In the US, surrogates are given no more than two embryos for their safety, whereas in India, surrogates are implanted with up to five embryos in order to increase the chances of pregnancy. Using such a large number of embryos increases health risks for the infants and the mother. Chances of post-partum depression of surrogates are more with the child that grew in mother’s womb. Pregnancy, birth and the post-partum period includes complications such as pre-eclampsia and eclampsia, urinary tract infections, stress incontinence, hemorrhoids, gestational diabetes, life-threatening hemorrhage and pulmonary embolism. Multiple pregnancy increases the likelihood of requiring an operative delivery. A surrogate host of advanced maternal age has increased risk of perinatal mortality, perinatal death, intrauterine fetal death, neonatal death. There is a greater risk to the mother of pregnancy induced hypertension, stroke and placental abruption. When hormones or drugs the surrogate is instructed to take, all drugs have side-effects. [16: Anu, Kumar P, Inder D, Sharma N. Surrogacy and women's right to health in India: Issues and perspective. Indian J Public Health [serial online] 2013 [cited 2019 Apr 9];57:65-70. Available from: http://www.ijph.in/text.asp?2013/57/2/65/114984] [17: Kevin T. The ethics of surrogacy contracts and Nebraska’s surrogacy law. Vol. 41. Creighton Law Review; 2008. p. 185-206]
Many women undergoing artificial insemination also take fertility treatments, increasing the likelihood of an adverse reaction and risks involved with the procedure. Issues such as premature delivery, genetic malformation and infections which lead to increased hospitalization of newborn are important issues to be considered in surrogacy contract. Many surrogate mother’s breastfeed the newborns during the first few hours following birth. However, parents find difficulty in initiating the breast feeding and in establishing the bonding between mother and child in case of surrogacy. One of the major draw backs of induced lactation in most surrogates or adopting mothers rarely produced the same quantity of breast milk as a new mother immediately following child birth. This presents a problem in terms of infant nutrition. [18: Commercial surrogacy and fertility tourism in India, The Case of Baby Manji, The Kenan Institute for Ethics at Duke University. The case studies in ethics.] [19: Jacobsson B, Ladfors L, Milsom I. Advanced maternal age and adverse perinatal outcome. ObstetGynecol 2004; 104:727-33.] [20: van den Akker OB. Psychological trait and state characteristics, social support and attitudes to the surrogate pregnancy and baby. Hum Reprod 2007;22:2287-95.] [21: Jadva V, Murray C, Lycett E, MacCallum F, Golombok S. Surrogacy: The experiences of surrogate mothers. Hum Reprod 2003;18:2196-204.] [22: Kimbrell. The Human Body Shop: The Engineering and Marketing of Life. New York: Harper San Francisco; 1993. p. 101.] [23: Honjo, Arai S, Keneko H, Ujiie T. Antenatal Depression and Maternal-Fetal Attachment. Psychopathology 2003;36:304-11.] [24: Surrogate Motherhood in India. Available from http://www.stanford.edu/group/womenscourage/Surrogacy/moralethical.html (Last visited 5th Apr 2019)]
Commercialization of surrogacy creates several social conflicts. Given the extreme vulnerability, one-third of the Indian women due to poverty, exclusion from and marginalization in labour and job markets, patriarchal social and family structures and low educational levels, the financial gain through surrogacy become a key push factor. Since most surrogate mothers are not from well-off sections and the motive primarily is monetary so they are easily exploited by the agents working for commissioning parents. Secrecy and anonymity creates a negative environment that affects human relations within and outside families. Surrogacy carries social stigma in the society as it is equated with prostitution and by virtue of that it is argued that it should be disallowed on moral grounds. Surrogate mothers are kept in isolation from families and allowed to meet families in weekends, which are against basic human rights. [25: Niekerk AV, Zyl LV. The ethics of surrogacy: women’s reproductive labour. J Med Ethics 1995;21:345-9.] [26: Anu, Kumar P, Inder D, Sharma N. Surrogacy and women's right to health in India: Issues and perspective. Indian J Public Health [serial online] 2013 [cited 2019 Apr 9];57:65-70. Available from: http://www.ijph.in/text.asp?2013/57/2/65/114984] [27: Ibid]
Now that the Bill has proposed a prohibition on commercial surrogacy, it remains to be seen if the practice is pushed underground, and thus, leads to no safeguards for the health of women acting as surrogates. Even in altruistic surrogacy arrangements, the health of the acting surrogate would need to be maintained, an aspect that the Bill ignores.
The Disability Movement And Surrogacy
People with disabilities are affected by the surrogacy discussion but they are never at the forefront of the debate. Questions of assisted reproductive technology deeply affect people with disabilities, as their rights to procreate, to participate in surrogacy, and to be valued as full human beings have long been questioned. Discussions about surrogacy typically do not envision people with disabilities as either commissioning parents or as women acting as surrogates, but as fetuses or newborn babies whose existence will challenge the parameters of the surrogacy agreement. The primary question seems to be, what should happen when a pregnant woman acting as a surrogate receives a prenatal diagnosis that the fetus has a medical condition that may cause it to be born with a disability? [28: Conservatorship of Angela D., 83 Cal. Rptr. 2d 411 (Cal. Ct. App. 1999).] [29: ILL. COMP. STAT. ANN. 47 / 20(a)(4), (b)(3) (West 2012) (requiring both women acting as surrogates and commissioning parents to complete a mental health evaluation to establish eligibility to participate in a legally recognized surrogacy contract).] [30: Generations Ahead, A Reproductive Justice Analysis of Genetic Technologies: Report on a National Convening of Women of Color and Indigenous Women 8-9 (2009), http://www.generationsahead.org/files-for-download/articles/GenAheadReportReproductiveJustice.pdf;]
Other reproductive technologies, such as pre-implantation genetic diagnosis, or PGD, allow prospective parents and their health care providers to control certain genetic attributes in 9fertilized embryos before they are implanted in a woman's uterus. Ethicists and the media have raised concerns regarding 'designer babies,' suggesting the possibility that parents could predetermine the height, eye color, and other traits of their children.' But less frequently challenged is the rhetoric that equates disability with reduced human value, rhetoric that is pervasive in both surrogacy and abortion debates. [31: Mia Mingus, Disabled Women and Reproductive Justice, THE PRO-CHOICE PUBLIC EDUCATION PROJECT, http://protectchoice.org/article.phpid=140 (last visited April 6, 2019)]
Feminists are also at fault for this dehumanizing treatment of disability, particularly in the abortion context, as Alison Piepmeier demonstrates in her article, Disability and What's Wrong with Feminist Framings of Reproduction. After posting an article about having a child with Down Syndrome on a New York Times blog, Piepmeier was flooded with comments from users that said things like giving birth to a child with Down Syndrome (or any disability) was a 'crime,' a 'drain on society,' and cruelty. As Sujatha Jesudason and Julia Epstein explain, abortion rights proponents 'sometimes use disability to defend access to abortion,' using rhetoric that inevitably equates disability with tragedy.”[32: Alison Piepmeier, Disability and What's Wrong with Feminist Framings of Reproduction, 39 FEMINIST STUD. 159 (2013).] [33: Sujatha Jesudason&Julia Epstein, Disability and Justice in Abortion Debates, CENTER FOR WOMEN'S POLICY STUDIES (Apr. 9, 2019), http://www.centerwomenpolicy.org/news/newsletter/documents/REPRODisabilityandJusticeinAbortionDebatesJesudasonandEpstein.pdf] [34: Ibid]
Should the commissioning parents be permitted to force the woman acting as surrogate to have an abortion if a prenatal diagnosis shows that the child may be born with a disability, such as Down Syndrome? May the commissioning parents refuse to follow through with the contract? Will the woman acting as surrogate become the legal parent if the commissioning parents refuse to fulfill the contract, and if so, will the commissioning parents be legally obligated to support the child financially? [35: Sara Ainsworth, Bearing Children, Bearing Risks: Feminist Leadership for Progressive Regulation of Compensated Surrogacy in the United States, 89WASH. L. REV. 1077 (2014)]
Refer to the clause in the 2016 Bill on foetus facing disability and the consequent right of commissioning parents
Questions surrounding disability are never framed in a way that honours the humanity of people with disabilities. A woman's right to self-determination is a feminist imperative, but so should be the dignity of people with disabilities, whose lives should not be used as a rhetorical device or a justification for surrogacy policy. Even though the Bill prohibits commercial surrogacy, these questions remain just as relevant in terms of the altruistic form.
An Economic Critique
Empirical evidence suggests that prohibiting commercial surrogacy in its entirety can push the entire industry underground and lead to the proliferation of a black market for surrogacy devoid of safeguards, augmenting exploitation of the surrogates. Thailand, a popular destination for fertility tourism, suddenly clamped a ban on commercial surrogacy earlier this year, after a couple of disasters exposed the dark side of this industry. However, the result was chaos. Some surrogates in various stages of pregnancy were left in limbo. Commissioning parents did not know how to collect their infants. Consequently, the surrogacy industry was pushed underground. [37: Milgrom, P and J Roberts (1992), Economics, Organization, and Management, Prentice-Hall] [38: Head, Jonathan (2018), 'Baby factory' mystery: Thailand's surrogacy saga reaches uneasy end for BBC World. Available at https://www.bbc.com/news/world-asia-43169974 (Last visited Apr 5th 2019)]
According to the Confederation of Indian Industry, the annual value of the Indian surrogacy industry is currently over $2 billion, further giving a chance to the opponents of commercial surrogacy to argue that the wombs of poverty-stricken women are catering to the country’s GDP. However, they fail to consider that prohibiting commercial surrogacy might lead to a thriving black market. This can be directly compared to the case of organ transplants, particularly kidneys, in India. Under Indian law, only close relatives can donate their kidneys to patients. However, in a recently reported scandal in Mumbai, poor villagers who were acting as kidney donors were paid around Rs 300,000 ($4,500), and the kidneys were then resold by middlemen or touts at a massive profit. Thus, prohibiting commercial surrogacy might create a similar underground market, breeding illegal and disguised surrogacy. This is likely to further threaten the interests and rights of surrogate mothers. [39: Bera, Sayantan and Doval, Nikita (2016), India govt moves to ban commercial surrogacy for LiveMint. Available at https://www.livemint.com/Politics/iJaMugwI57XmKANE1juUnO/Cabinet-clears-bill-on-surrogate-motherhood.html (Last visited Apr 5th 2019)] [40: Chandran, Rina (2016), Mumbai police suspect poor targeted for organs in kidney transplant racket for Reuters. Available at https://www.reuters.com/article/us-india-trafficking-kidney/mumbai-police-suspect-poor-targeted-for-organs-in-kidney-transplant-racket-idUSKCN0ZZ1G4 (Last visited Apr 5th 2019)]
Studies have shown that surrogates are mostly financially-deprived women who are hired by the upper and middle strata of society. Privately-owned infertility clinics serve as intermediaries between surrogates and intending parents. These clinics charge desperate couples huge amounts — mostly foreigners and people belonging to the higher-income classes — who are willing to spend hefty amounts to have a baby. On the other hand, surrogates — who generally do not have an alternative source of similar income — are paid scantily. This Bill, when it takes effect, is likely to cause illegal surrogacy, which will aggravate the existing inequality, as surrogates will lose any right to payments. [41: Rimm, Jennifer (2009), “Booming Baby Business: Regulating Commercial Surrogacy in India”, University of Pennsylvania Journal of International Law,30 (4):1429-1462]
The regulatory mechanism under the Bill primarily focuses on surrogacy, ignoring various other assistive reproductive technologies. Experts point out that it is also exclusive in its stance, seeking to deny otherwise suitable individuals, who are within their rights to demand access to regulated surrogacy services, based on their sexual orientation or marital status.[42: Saravanan, Sheela (2013), “An ethno-methodological approach to examine exploitation in the context of capacity, trust and experience of commercial surrogacy in India”, Philosophy, Ethics, and Humanities in Medicine, 8(10)]
Since the demand for surrogacy is not expected to wane, such restrictions, regardless of well-placed intentions, may prove to be disastrous in the longer run as it will run the risk of pushing the business of surrogacy underground, endangering those the law seeks to originally protect—the mother and the child.
Concluding Reflections
The Bill’s main object is to prevent ‘exploitation’, however, as has been explained through this chapter, the understanding of this exploitation is extremely moralistic. Since the womb is considered sacred, a gift of God, and a blessing for a woman to fulfil her purpose of being born- procreation, it is hard to understand and accept it as a site of labour.
This non acceptance is what has led to the Courts favouring the commissioning parents’ rights over those of the surrogate mothers time and again. It is also this threat to the ‘natural’ understanding of motherhood that makes the government look at altruistic surrogacy as a viable option, since there is no ‘payment’ involved, but ban commercial surrogacy for fear of exploitation.
As has been mentioned even by the Parliamentary Standing Committee Report, women relatives can also be very deeply exploited in altruistic surrogacy arrangements. The Bill and the Report both discuss exploitation in a similar tone, but the Report goes a step further in recognizing the possibility of it in altruistic arrangements, and suggesting regulation of commercial ones instead of a blanket ban. The culmination of these critiques and final reflections follow in the concluding chapter of this dissertation.