Emergence of the 'Surrogacy Industry'

COMMENTARY

b iological child of one’s own and ARTs as the panacea. It is important to make sense of legal engagement with this i ssue in a situation in which constantly evolving new reproductive technologies are sought to be regulated by state m achinery thereby attempting fi xity or standardisation. The Indian state’s attempt to regulate ARTs is particularly noteworthy since it is not in tandem with its general approach to engage with biological reproduction by its population. For the State, the fertility of its population has arguably been a “problem”, where it strived to “control” it and later to stabilise it. Given its concentrated approach towards tackling the population issue, whether through coercion or through a policy of incentives-disincentives, it is surprising that it looks positively towards ARTs (John and Qadeer 2009). Why does it legally engage with techno logies that seek to assist in reproduction since it is not to ban these technologies but in fact to facilitate their proliferation? In spite of infertility and ARTs not being a high priority health issue for much of the Indian population, the draft bill seeks to regulate it in the wake of mushrooming ART clinics with a substantive transnational clientele. Though not stated explicitly, the bill embodies the implicit recognition by the State that ARTs in India are largely being used in a transnational context with rising m edical/reproductive tourism.

Surrogacy per se is not a new way of human reproduction and a surrogate mother used to be a woman who substituted the wife and bore a child for the couple either consensually or coercively with or without a commercial transaction. Surrogacy traditionally involved sex outside marriage that evoked various moral apprehensions and hence surrogacy remained clandestine just like many other practices which are generally considered “immoral” but fl ourish nonetheless like pornography, prostitution, incest (abusive or consensual) and paedophilia. However, the case of surrogacy is slightly different from the other examples cited above since it involved reproduction where the child is regarded a legitimate biological offspring of the f ather and the social mother accepts the child as her own in spite of the fact that she was not the biological mother. With technological innovations to deal with infertility, there came techniques like artificial insemination which in the case of surrogacy helped mitigate the moral issues to a great extent since the woman acting as the surrogate could now get pregnant without having sex with the f ather of the child. However, even with artificial insemination the surrogate still was the biological mother of the child. Irrespective of whether the surrogate mother was related or unrelated to the social family of the child, or whether she took money from the child’s social parents – she remained the biological mother whose genes were carried by the child despite the fact that the “seed” was that of the father.

There was every possibility that the surrogate mother would feel attached to the child she bore, would refuse to hand over the child to the father and worse still, might stake a claim on the custody of the child. In other words, commercial surrogacy without artifi cial insemination would effectively make the woman acting as a surrogate a “prostitute” as well as a “baby-seller”; but if it involves artificial insemination, she becomes only a “baby-seller”. Naturally, in a patriarchal setting such a practice would be abhorrent, but nonetheless would continue to happen clandestinely even if on a very small scale, since there would always be women who would choose, or be forced to act as surrogate mothers because of their circumstances and there would always be couples willing to go to any length to have their “own” child.

Infertility Treatment Market

Once human reproduction is compartmentalised into egg and/or sperm donation, conception in laboratory, and gestation in a surrogate womb, it is possible also to geographically separate each component which are potentially transnationally commodifiable. This has given rise to an emerging market of infertility treatment with potential income for ART clinics, egg/sperm donors and women who agree to become commercial gestational surrogates. Significantly, most countries in the global

North have stringent regulations around commercial surrogacy since the 1980s owing to apprehensions about commodification of children and women’s reproductive abilities thus giving rise to outsourcing. India has witnessed an emerging trend of “reproductive tourism” for ARTs especially for the services of commercial gestational surrogates. Arguably, there are at least three reasons for this – high quality low-cost ART services provided by largely Englishspeaking doctors; cheap availability of women willing to be surrogates; and, permissive laws, thus giving rise to the ART industry of which commercial gestational surrogacy is a part (Law Commission of India 2009).

With globalisation and heightened marketisation various previously noneconomic activities have become commodified (Peterson 2003) and transnationalised. It is in this context that commercial surrogacy can be seen as an i ssue of political economy where the act of giving birth is construed as a relation of exchange in the market under particular circumstances and arguably assumes the form of an industry. Whether the m ilieu of transnational commercial surrogacy arrangements should be seen as an industry is a contested area with a prominent objection raised by Supreme Court judges on usage of the term industry for commercial surrogacy in the Law Commission report (Rajagopal 2009). However, as is evident from a preliminary survey of how these arrangements take place, they notionally do fi t the picture painted by an indicative defi nition of industry as contained in the Industrial Disputes Act, 1948.1

There are very few voices that seek to know more about the most indispensable stakeholder in the issue – the woman who acted as the commercial gestational surrogate. To suggest probing about that woman is certainly not to demand fl outing of confidentiality regarding her identity. It is to know more about the nature of the arrangement – the payment she received, the pre- and post-childbirth healthcare she is getting, and her casteclass-religion-ethnicity profi le. Many leading ART clinics also run hostels for women acting as surrogates for the course

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COMMENTARY

of their pregnancy under the supervision of the doctors and technicians (Pande 2010). While the express reason is to ensure good care and a healthy diet for them, the implicit reason is to keep these “poor” women under surveillance so as to put apprehensions of any kind of breach of contract, at bay and one wonders at the degree of coercion that can possibly be involved in such arrangements of physical confi nement.

These are important issues to critique the range of livelihood choices available for women in globalised India since acting as a commercial gestational surrogate is a choice that women mostly make in the face of economic hardship. However, a woman’s volunteering to act as a commercial gestational surrogate is often followed by a rigorous regime of medical tests to determine her “fi tness” to act as a gestational surrogate. To clear these medical tests, women must not have any medical history of complications during previous pregnancies and must be generally healthy. Even though no supporting data or statistics are available, these criteria can arguably explain why women from the poorest of the poor sections of the society may not qualify for gestational surrogacy owing to the high chances of their being anaemic and generally malnourished.

Pregnancy takes a toll on women’s health more so when it is technologically induced and sustained through administration of hormonal injections and medicines to prepare the woman’s body as in the case of a surrogate. Also given that IVF success rates are anything between 25% and 40%, a successful gestational pregnancy often results after a few failed attempts. Deciding how many failed IVF cycles are reasonable for a woman to beget a pregnancy often rests with the doctor and the guidelines do not go a long way in protecting women from such a health risk. Another important issue regarding IVF is the high probability of multiple births, and women acting as surrogates often undergo foetal-reduction. Furthermore, there is no standardisation of compensation for these women. There is no existing mechanism that holds commissioning couples and ART clinics liable for her well-being

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and all the arrangements happen in mere good faith.

Conclusions

In order to critically engage with this “industry” that cashes in on the patriarchal stigmatisation of childlessness and the socio-economic vulnerabilities of women, the voices of such women need to be recovered. In order to understand whether infertility treatments including the phenomenon of surrogacy in a market situation improve the lives of women whether as buyers or sellers of reproductive services, it is important that feminists and the women’s movement engage with the issue on at least two fronts. First, advocacy related to the draft ART Bill where an important point of engagement should be to critique how the surrogate and her rights are addressed by it. Is it even appropriate to include her as merely a part of a chapter in a legislation that seeks to regulate ARTs? (Shah 2010). As a woman she is much more than her womb! Second, there is a pressing need for critical rethinking about the relationship of technology to the body intertwined with the question of “choice”.

While ARTs can be hailed as a boon for non-heterosexual people who can now have children through surrogacy, the Indian ARTs industry caters to demand only from foreigner homosexual couples while in India homosexuality is not legally recognised. This shows discrimination in terms of who can access these techno logies. However, queer people accessing ARTs and taking recourse to surrogacy forecloses the subversive potential of building families and relationships beyond heteronormativity. The movement has engaged with the adverse effects on women’s health infl icted by reproductive technologies. Sama Resource Group for Women and Health and Saheli are women’s rights collectives that have raised the infertility question and commercial surrogacy.

The woman who acts as the surrogate arguably makes a “choice” and her chosen method of earning remuneration for her reproductive services may be identified as a form of subversive “work” which blurs the production-reproduction

dichotomy. However, whether women make an informed choice regarding what gestational surrogacy means for their overall health and well-being needs to be understood. Of course, there are scholars and researchers who have identified probable directions for an engagement with these issues by the movement but a lot still remains to be explored.

Note

1 According to the Clause 2(j) of this Act, an “industry” means “any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicrafts or industrial occupation or avocation of workmen”.

References

Gentleman, Amelia (2008): “India Nurtures Business of Surrogate Motherhood”, NY Times, 10 March, viewed on 29 December 2011 (http:// www.nytimes.com/2008/03/10/world/asia/ 10surrogate.html?_r=1&pagewanted=print).

John, Mary E and Imrana Qadeer (2009): “Delivery Service”, The Hindu Business Line, 2 January, viewed on 30 December 2011 (http://www.thehindubusinessline.in/life/2009/01/02/stories/2009010250110400.htm).

Kohli, Namita (2011): “Moms on the Market”, The Hindustan Times, 13 March.

Law Commission of India (2009): “Need for Legislation to Regulate Assisted Reproductive Technology Clinics as well as Rights and Obligations of Parties to a Surrogacy Contract”, Report No 228, New Delhi.

Pande, Amrita (2010): “Commercial Surrogacy in India: Manufacturing a Perfect Mother-Worker”, Signs, 35(4): 969-92.

Peterson, V Spike (2003): A Critical Rewriting of Global Political Economy: Integrating Reproductive, Productive and Virtual Economies (London: Routledge), reprinted 2005.

Rajagopal, Krishnadas (2009): “SC Enters Surrogacy Debate, Asks If an Indian Baby Is a ‘Commodity’”, The Indian Express, 16 December.

Shah, Chayanika (2010): “Regulate Technology, Not Lives”, Infochange News & Features, December, viewed on 30 December 2011 (http://infochangeindia.org/index2.php?option=com_ content&do_pdf=1&id=8622).

Taneja, Poonam (2008): “Baby Tourism”, A 30 Minute Radio Report, Asian Network Report, BBC, 13 October, viewed on 29 December 2011 (http://www.bbc.co.uk/asiannetwork/documentaries/babytourism.shtml).

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