The union cabinet has approved the Surrogacy (Regulation) Bill, 2016, according to which, commercial surrogacy is completely prohibited and foreigners cannot access surrogacy in India, but altruistic surrogacy is permitted only for needy married couples with the help of close relatives as surrogate mothers. Surrogate mothers will have more rights over the child and will be offered legal support. Similar policies exist in Thailand, Israel and Denmark. In support of the bill, external affairs minister Sushma Swaraj said it will protect women from exploitation, especially by the rampant medical tourism industry.
Read interview with Prof Mohan Rao | “Banning commercial surrogacy is the only way forward”
During my research on surrogacy in western India (2009-10), I observed that surrogacy was becoming a money-making business for the medical sector and the agents involved in the industry were exploiting not only surrogate mothers but also intended parents. Surrogate mothers in India are especially vulnerable to unjust contracts due to their comparatively disadvantageous socio-economic position. They are detained in dormitories, subjected to violation of good medical practices, imposed with extreme ways of separation from the babies born, without a fair share of benefits or protection from insurance or law, many of which are a violation of basic human rights. There is a commodification of children too as the bulk payment is made only after the handing over of the baby, without additional payment in case of a miscarriage; some payment is made on the basis of the weight of the child and disabled children are treated like defective products and left in orphanages or even on the street.
The government took years to respond effectively but has finally taken a commendable stand with an understanding that this entire industry is based on structural inequalities, exploitation and commodification of women and children. Recently a journalist in Sweden wrote, “India and Thailand do not want their female citizens to become the baby factories of the world. Now it is time for Europe to take responsibility. We need to show solidarity and stop this industry while we can.” (Ekis Ekman K 2016). Later, this year, Sweden completely banned surrogacy. Most countries in Europe prohibit all surrogacy agreements, including Austria, Bulgaria, France, Germany, Italy, Norway, Portugal, Switzerland, Spain, and Sweden. Germany, for example, has banned this practice as the surrogate mother is considered the birth mother. However, the partial ban on surrogacy in India and also in Thailand has some grey areas; the glorification of altruistic surrogacy paves way for exploitation and the present selective ban discriminates against certain groups of people in the society.
Altruistic surrogacy glorifies family and reinforces inequalities
Altruistic surrogacy also involves money transfers and previous experience from other countries, like the UK, reveals that considerable amounts are transferred in the name of medical bills in this process which can be exploitative to intended parents and surrogate mothers. Altruistic surrogacy can exploit women who may be dependent on other family members. Surrogacy within family members does not make the practice less exploitative than commercial surrogacy. Altruistic surrogacy within families, “romanticizes the family as the foremost place for protection” (Raymond 1993: 54). It is well known worldwide that most forms of abuse take place within close families and friend circle. It has been known that women in India tend to put other’s need and priorities before their own, which was evident among surrogate mothers in India who wanted to sacrifice their lives for the sake of the family (Saravanan 2013). With altruistic surrogacy, women within the extended family can be exploited to fulfil the reproductive needs of their affluent relatives, while women who refuse may face ostracism. Feminists criticise altruistic surrogacy as a ‘compassion trap’ in which infertility is portrayed as a desperate need and the surrogate mother is posed as a generous-loving woman offering a gift of love to lonely-childless couples. There is a moral celebration of women’s altruistic role framed in the language of ‘selflessness’ (Raymond 1993).
Problems with a selective ban
India prohibits surrogacy to certain groups of people (homosexuals, single parents, live-in couples). This doesn’t solve any problem, as it was only the affluent people from various sections of the society who could afford surrogacy in any case. This policy is certainly patriarchal and homophobic and fundamentally discriminates against some sections of the society. Similar laws have been imposed on other reproductive technologies too. For example, Germany restricts sperm donation for unmarried and homosexual couples. There are further problems that need to be taken into consideration. In case of a ban, it has also been observed that affluent citizens tend to move to other countries for accessing surrogacy. Extra-territoriality laws have been implemented in some countries imposing strict rules on citizens who travel for fertility treatments not permitted in the source countries. The law in the source country decides about the citizenship to children born through surrogacy outside their jurisdictions and the parentage of the individuals who have travelled abroad to have these children. The countries which do not have clear extra-territoriality laws have been criticised for protecting their own citizens while allowing vulnerable citizens from other countries to be exploited.
Surrogacy: a solution to poverty and infertility
Liberals consider surrogacy a solution for poverty and infertility. It is important though to understand who is defined as ‘infertile’ and whose infertility issues are being addressed through surrogacy. Technologies such as surrogacy provide a wider reproductive choice only for the affluent people at the cost of the health, freedom and life of some others (mostly the less affluent women) while designating substantial control and power in the hands of intermediate agencies. The socio-economically disadvantaged people in the society regardless of whether they are married, single, infertile, same-sex couples or eunuchs cannot have children through surrogacy in any way whether it is India or any other country in the world. ‘Reproductive justice’ aims to reduce inequalities and not to use someone’s vulnerability as a solution for infertility.
From the neoliberal perspective, the use of technology to realise the intended parent’s ‘reproductive goals’ is considered a ‘constitutional right’ and hence the state intervention is seen an interference, some have even gone to the extent of calling it state ‘policing’ on people’s private life. This individualistic, outcome-based approach overlooks the social impact of surrogacy and the structural injustice, racial and colonial elements of this industry. Carmel Shalev, an academician and feminist from Israel, explains, “In the 1970s the issue was about reproductive freedom, about women’s choices to become a mother, ‘when’, ‘if’ and ‘how often’, access to contraception, abortion and safe child-birth. These were private decisions; hence state intervention in these was resisted. Having a right to be a parent is a positive right. But in recent days this is turning into an extreme version of consumer right, accessible to the rich. It goes rapidly from becoming ‘a wish’ to ‘a desire’ to ‘a need’ to ‘a right’ and ‘an entitlement’.” In the documentary film on assisted reproductive technologies ‘Future Baby’, Shalev asks “Does right to parenthood mean ‘by whatever means’?” Sushma Swaraj recently said, “The procedure that started as a necessity has become a hobby of sorts. We have many examples of celebrities who have their own children, still they have gone for a surrogate child.”
The neoliberals also argue that the state should not have the right to interfere into a woman’s choice and agency to participate in surrogacy. This ‘livelihood argument’ follows the “capitalist free-market approach” and believes that surrogacy markets can provide an efficient mechanism for poverty reduction. This approach follows the Kantian perspective that individuals can be ‘means to an end’. The surrogate mother’s desperate choice between poverty and surrogacy cannot be seen only from the perspective of her agency. A surrogacy contract out of dire economic needs cannot be defined as free choice. Surrogate mothers are subjects to all forms of exploitation, isolation, negligence and violation of bodily integrity. Any activity that violates a person’s dignity or integrity and involves economic exploitation cannot be considered a constitutional ‘right’.
Furthermore, Dworkin (1983) notes that it is “the state (that) has constructed the social, economic, and political situation in which the sale of some sexual (prostitution) or reproductive (surrogacy) capacity (becomes) necessary for people’s survival.” This situation denies people of a host of other possibilities, from education to jobs to equal rights before the law. Hence there should be more focus on providing women with all these basic entitlements and human rights so that she doesn’t have to sell her body in the first place (Dworkin 1983: 182). “But it is the state intrusion into her selling of sex or a sex-class-specific capacity that provokes a defense of her will, her right, her individual self” (Dworkin 1983: 182). Protest needs to be directed towards enhancing the essential needs of people in transitional economies like India and not towards encouraging women into surrogacy.
A ‘reproductive justice’ framework includes recognising the histories of reproductive oppression in all communities and aims to change structural power inequalities by identifying and addressing multiple oppressions of race, class, gender, sexuality, ability, age and immigration status. It is noted that those seeking surrogacy arrangements face social stigma, psychological problems, physical stress of infertility treatment and violation of bodily integrity. However, opting for surrogacy is likely to put another woman (the surrogate mother) through the same set of problems; social stigma, psychological challenges, violation of her bodily integrity and also, put the surrogate mother’s health, freedom, liberty and even life at stake. Any form of individual liberty that seriously impinges another’s health and freedom does not conform to the reproductive justice framework.
One opinion is that surrogacy has been ongoing for millions of years, just like prostitution, and hence it should be permitted. The other is that, if banned, like prostitution, surrogacy too will go underground and flourish in black market with increased exploitation. Both these arguments uphold the idea of normalising the violation of bodily integrity for paid sex (prostitution) and reproduction (surrogacy). Both these practices have involved systematic and structural exploitation of women’s bodies and have linked with trafficking of women and children. There are many such practices like prostitution, devdasi, nata-pratha and child marriage that violate women’s bodily integrity and have been a norm in our society but do not conform to human rights or reproductive justice framework. Legalisation has encouraged the black-marketing that supports both the ‘sex’ and ‘reproduction’ industry. Examples of this can be found in the prostitution (trafficking, rape, abduction) and surrogacy markets (sale of ‘extra’ babies, sale of illegal passports, birth certificates, violation of medical practices, illegal sale of genetic material). One case of comparison for controlling black-markets would be the example of the ban on sex determination and sex-selective abortion in India. More than two decades after the Pre-conception and Prenatal Diagnostic Technology (PNDT) Bill was passed, its effectivity can be seen in a recent analysis using treatment-effect framework. A possible absence of the law would have led to at least 1,06,000 fewer girl children in India (Nandi and Deolalikar 2013). What is lacking though alongside the PNDT Act is social reform to change mindset and reduce gender bias.
For surrogacy, the big challenge facing India would be to develop the law further and an effective implementation. Further focus on gender development is needed so that women can lead more productive life goals and not sell their bodies for ‘sex’ or ‘reproduction’. Poverty alleviation and reduction of inequalities is also needed so that women are not pressured to compromise with their dignity to bring their family out of poverty.
Dr Saravanan is with the Department of Anthropology, University of Heidelberg, Germany.
(The article appears in September 16-30, 2016 edition of Governance Now)
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