In February 2015, news reports in India focused on a Supreme Court directive to the Union government to respond to a Public Interest Litigation (PIL) seeking a ban on commercial surrogacy. There were two other stories that grabbed attention in the same month: one, a woman in Meerut alleged that she was beaten up by her employer for refusing to carry his surrogate baby; and two, a girl from Jharkhand was forced to act as a surrogate mother in Delhi, who delivered six babies who were all sold off by traffickers. Notwithstanding this spate of negative news, surrogacy has also been portrayed favourably in the media. In 2007, the Oprah Winfrey Show featured an American couple who had travelled to Anand, Gujarat, for surrogacy, calling it a “beautiful” example of “women helping women”. In the last few years, even Indian celebrities like Shahrukh Khan and Aamir Khan have had babies through surrogacy, and this has been lauded in the media as inspirational.
Rather than these polarised representations, what is needed is a more cautious reporting on the industry, highlighting its ethical and legal dilemmas. What can we make of this new and booming business that is surrogacy? What constitutes its labour force? Can we think of surrogates as performing remunerative reproductive labour, an activity not necessarily recognised as such in relation to childbirth within marriage? How do we position our responses? It is critical to raise these questions today, especially when one considers that the regulatory framework for this industry in India – including the rights and duties of the various parties – is yet to be finalised. It is time to reflect on the need for regulation and the kind of regulation we want. And in order to do so, we have to be able to understand the key issues in this burgeoning industry. This is especially important in the context of Southasia, given the ease with which the industry can shift or informally expand, (and is indeed shifting and expanding to countries like Nepal), if the regulatory environment is seen as too strict in one country.
The surrogacy question
Surrogacy is an arrangement in which a woman agrees to carry another individual or couple’s baby to term – usually in exchange for money. It is enabled through the use of Assisted Reproductive Technologies (ARTs), a group of procedures designed to circumvent infertility by assisting in conception, or in the carrying of pregnancy to term. ARTs mainly consist of two techniques: artificial or intra-uterine insemination (IUI) wherein viable sperm is injected into the uterus of the woman, and in-vitro fertilisation (IVF) wherein sperm and egg are fertilised outside the body and the embryo is transferred into the woman.
There are no reliable national ART registries or monitoring bodies that can give an overview of surrogacy in India, but it is estimated that the industry brings in between USD 500 million to USD 2.3 billion annually. In addition to a lax regulatory environment, India has the comparative advantage of lower costs of medical procedures, a shorter waiting time, the possibility of closely monitoring surrogates, quality medical services, and large numbers of poor women willing to be surrogates. These are the ingredients that make surrogacy a booming business in India today.
Two studies conducted by Delhi-based women’s groups, apart from the work of individual researchers at universities, give a snapshot of the industry.
In 2011-12, the Centre for Social Research (CSR) conducted an exploratory study on surrogacy in Anand, Surat and Jamnagar areas of Gujarat, with the objective of examining the protections in place for the surrogate mother, the rights of the child in surrogacy arrangements, and issues pertaining to commissioning parents. The study, titled ‘Surrogacy Motherhood – Ethical or Commercial?’, is comprised of a sample of 100 surrogates and 50 commissioning couples and families.
The CSR report revealed that surrogate mothers are generally from poor families, with an average monthly income of INR 1000-3000 (USD 16 to 48). The majority are illiterate, and employed as domestic workers, construction workers or nurses. Most are married and live in nuclear families, and are approached by agents who have often themselves been surrogates before. Although the surrogates sign a contract, almost none had a copy with them. Compensation is determined arbitrarily by the clinic and is usually a fraction of what commissioning couples are paying the clinic for the service. In fact, the entire surrogacy arrangement is skewed in the interests of the foetus, while the surrogate mother is regarded almost as peripheral. If the commissioning parents do not wish to continue with the pregnancy due to some foetal abnormalities or sex preference, the foetus is aborted without the involvement of the surrogate in the decision.
Due to the stigma attached, most surrogates stay in surrogacy hostels to keep what they are doing a secret from their neighbours and community. Clinics for their part prefer this arrangement as they are better able to monitor surrogates in hostels. The CSR report found that women spend the money they earn through surrogacy chiefly on the education of their children, or on building pucca houses. The relationship between the surrogate and the commissioning parents tends to be harmonious but distant. Sometimes, even though husbands approve of their surrogacies, they and their families distance themselves from the women once the baby is born. The secrecy of the arrangement, having to live away from their families, and the handing over of the child, surrogates said, were the worst parts of the process.
The practice of surrogacy ‘splits’ bodies and parenthood in unprecedented ways, making it possible to ‘rent’ the womb, have more than one biological mother (separating the gestational from the genetic), and takes reproduction (usually seen as a private and domestic affair) into the realm of the market. As such, surrogacy presents new and critical challenges to ideas of labour, body and the family.
Interestingly, there have been calls to ban ‘commercial surrogacy’, and allow only ‘altruistic surrogacy’ – done out of sympathy and without monetary compensation, from some time before the Supreme Court PIL of February 2015. This has come for quarters ranging from Catholic priests to a section of feminists. At its heart, the attempt to ban commercial surrogacy imagines that reproduction is a special and intimate feminine activity that should not be corrupted by commerce, because babies are not products, and women should not be reduced to baby-producing machines. On the other hand, it has also been argued that reproduction is not a special and pristine experience for all women, and imagining it as such – conflating the idea of womanhood with motherhood – has been the chief source of women’s oppression and responsible for their relegation to the domestic sphere. The unequal burden of childrearing in turn compounds other inequalities, like differential incomes between the genders.
Additionally, it hides what is essentially unpaid care work within the family under a veneer of benevolence, drawing on the stereotype that women are inherently of a ‘sacrificing’ nature. A position privileging altruistic surrogacy over commercial surrogacy is also dismissive of how surrogates themselves think about it, and give voice to this form of exchange. For instance, many ‘commercial surrogates’ also simultaneously see what they do as altruistic – they see themselves as making the ‘gift’ of life to a person or couple who can’t have a biological child. By entering surrogacy arrangements, one must add women are indeed sacrificing so that their families and children can have a better life. We shouldn’t have to look for a sharp dividing line between altruism and commerce, as if questions of health, rights, and justice are valid in some contexts and not in others.
The argument could be further made that sex and reproduction has always been a form of commercial exchange or of a transactional nature, although it may not easily be recognised as such. Certainly sex workers, feminists and sex-work advocates have made this argument about sex. Within the institution of marriage, sex and reproduction is controlled and exchanged for, among other things, material benefits, social status and emotional comfort. If this is a valid and acceptable norm, why should a similar exchange in the context of sex work or surrogacy be viewed differently? If taking money to be a lecturer or a bricklayer is not in itself ‘corrupt’ or ‘alienating’, then why should taking money for sex or reproduction thought to be so? Sex workers and surrogates are selling what sells best given the circumstances of their lives. These are conscious choices that they have a right to make. This argument has nothing to do with trafficking, which by definition involves force or fraud. Human trafficking is done for many trades, including factory work and domestic work, and must be combated. However, surrogacy is not trafficking, and where trafficking has happened for surrogacy, there can be no doubt that it is a violation of human rights. To confront the real challenges in surrogacy, we must first abandon moralistic and patriarchal views of the decisions that women make in their attempt to survive, as well as steer clear of false equivalences and binaries.
‘Birthing a market’
From 2011 to 2012, Sama conducted a multi-sited qualitative study in Delhi and Punjab (of which this writer was a part), with the aim of understanding the experiences of surrogates, as well as uncovering the processes followed in surrogacy arrangements. The research report, titled ‘Birthing a Market: A Study on Commercial Surrogacy’ is based on the interviews of 12 surrogates, two agents, five doctors and one commissioning parent.
According to the research, the current operation of the surrogacy industry is unfavourable to the surrogates, who occupy the lowest rung in the industry. To be a surrogate, a woman must be married, with biological children or ‘proven fertility’, and must have her husband’s consent. For surrogacy, the more invasive IVF (using the eggs of the commissioning mother or a donor but not the surrogate’s) is preferred over IUI (which would use the eggs of the surrogate if viable). This is done in the interest of severing all genetic links between the surrogate and the child which may be imagined as the possible source of a future claim by the surrogate over the child. Surrogates are provided little to no information that multiple cycles may be needed to transfer the embryos (ARTs have a low success rate), or that multiple embryos may be implanted in one transfer (to increase chances of pregnancy). If many embryos are successfully implanted, some may be destroyed through a process called foetal reduction. The rate of C-section is higher in surrogacy, but again, surrogates are not usually informed about this.
The surrogate relies entirely on the agent or the doctor for information regarding the arrangement, including the payment process, drugs and medical procedures. Her ability to negotiate is severely constrained. She signs a contract that is drawn up by the intended parents in English, which is usually not explained to her well enough. She is not provided with any legal counsel, or any counselling for her emotional and psychological needs. The amount and pattern of payment is variable, and the agent’s commission may come out of the surrogate’s fees, which is not always clarified in advance. The health risks to the mother and baby in the womb from the drugs and procedures in ARTs are under-researched, and in the case of surrogacy, under-communicated. Post-delivery, the surrogate is asked to relinquish the child but has no control over the terms of relinquishment; for instance, breastfeeding the infant is generally not allowed. Surrogacy arrangements currently regulate key aspects of the surrogate’s life – her sexual and physical activity, mobility and diet, but not other important areas like the maximum number of surrogacies and the interval between them. There is inadequate post-delivery follow-up and care.
A lot of the problems highlighted in the two studies arise from the lack of comprehensive and effective regulation of the ART industry. Apart from a set of non-binding guidelines, there exists a Draft Assisted Reproductive Technology (Regulation) Bill and Rules (2010, 2013). This draft has been prepared by the Indian Council of Medical Research (ICMR) and is pending before the Indian Parliament. While all stakeholders agree that a law is necessary, provisions of this draft have come under criticism from doctors and activists alike.
The draft, for example, stipulates that surrogates and gamete (sperm or egg) donors will be supplied through an organisation called the ART bank. This bank will function independently of the ART clinics, thus cutting out agents and doctors who are currently involved in the recruitment process. The ICMR believes this will reduce malpractices like unfair payments to surrogates or the chances of babies being abandoned by commissioning parents. However, leading IVF doctors and professional bodies have expressed their discontent with this provision. They believe that if the government regulates the ART banks, recommends gametes and surrogates, doctors will have no choice and quality will suffer.
The draft also has several positive aspects. It sets necessary conditions and limits in the interest of the surrogate’s health and rights. The surrogate must be 21-35 years of age, with no more than five successful live births (including her own children). She can undergo no more than three cycles of embryo transfer for the same couple. Egg donors can donate up to six times, with a three-month interval between donations. The draft mandates informed consent, anonymity for the donor and surrogate, and the maintenance of records by clinics, and a central database. The draft is compatible with the anti-sex selection law in India – the Pre-Conception, Pre-Natal Diagnostic Technique (PCPNDT) Act – and makes it mandatory for the commissioning parent(s) to accept the baby irrespective of abnormalities. The draft also speaks of appropriate insurance and professional counselling; but these two crucial aspects need elaboration. Questions have been raised about the draft’s silence on the surrogate’s right to abort; this right cannot be suspended and must be in line with the Medical Termination of Pregnancy Act. Further, the draft should stipulate a fair and just mode of payment for the surrogate.
The present moment in which regulation is being drafted and adopted is a critical one for the surrogacy industry. Apart from the draft bill, other laws and judgments will also play a role in determining the operation of the surrogacy industry. In 2012, the Ministry of Home Affairs issued directives regarding foreign couples coming to India for surrogacy. These directives defined a couple as a foreign man and a foreign woman married for at least two years. Such a couple is now required to produce a letter from the government of the country of origin, stating clearly that the country recognises surrogacy and that the child born through surrogacy will be permitted entry into their country as the biological child of the commissioning couple. While these directives will certainly pre-empt legal tussles over citizenship and protect the rights of the child, they are blatantly discriminatory towards foreigners who are single, LGBT couples and unmarried couples. More promisingly, in March 2013, the Madras High Court held that government employees opting for children through surrogacy too would be entitled to ‘maternity leave’. Our laws and ethical frameworks, for the most part, are lagging behind the developments around the practice of ARTs. Care should be taken now to institute laws that are both timely and thoughtful, that incorporate the concerns of all stakeholders in ART provision in the fullest possible way, without compromising on the rights of the most vulnerable in the industry.
Surrogacy needs to be understood alongside the developments in India’s economy and labour market since the 1990s. The neoliberal model of development followed by the government has resulted in informalisation of labour and economic activity. With cuts in agricultural spending and an increase in urbanisation, the availability of formally regulated public-sector work has declined. The informal sector has grown, and temporary and contractual jobs for under-skilled labour have multiplied. Home-based work, sweatshop production, own-account work, casual and day labour provide employment for a majority of Indians. Women have historically been part of the informal sector, both rural and urban, with extremely limited access to resources like land and other assets; today the overwhelming majority of women are still employed in the informal sector. One can in fact detect a relationship between the restructuring of the global economy since the 1980s and the restructuring of reproduction. As public funding is rolled back, women are finding employment as maids, nannies, sex workers and cleaners – jobs that recast their traditional ‘capacities’ for nurture, maternity and sexuality as assets negotiable for the consumption of households where these services are no longer performed by educated, professional women. It is from these ranks that surrogates are drawn.
Unlike garment or domestic work, surrogacy also represents a particular intersection with science and technology. In a recent book, sociologists Melinda Cooper and Catherine Waldby contend that economies like India have moved away from mass-manufacture models that defined 20th-century industrial capitalism, and are instead dominated by the service sector, knowledge-creation and culture industries, financial markets, information capitalism, and biomedical production. Surrogacy, participation in clinical trials and gamete donation represent new forms of embodied labour that have proliferated at the lower end of the biomedical economy. The life-sciences industry relies on this extensive yet unacknowledged labour force, whose service consists of visceral experiences like experimental drug consumption, invasive biomedical procedures, tissue extraction and gestation. While all work is of the body, in these sectors the biology of the body and the risk it incurs is the work. Cooper and Waldby call such work ‘clinical labour’.
In labour like surrogacy, the problem is not the commercialisation of motherhood, but that no matter how ethically it is conducted, it draws on a structural inequality that at this moment it cannot combat, and that needs tackling on various other registers. Consider, for instance, that while surrogates receive relatively substantial compensation to bear babies for other more privileged people, their own reproductive lives stand in stark contrast: they are drawn from a class of women often targeted with population control and faced with high maternal mortality and morbidity. Consider also that as markets for clinical labour expand without an improvement in other livelihood options, we are confronted with a situation in which the poor who depend the most on the physical labour of their bodies have to risk those very bodies for survival. Further, while India’s ailing public-health system does not offer even basic preventive, curative and counselling services for infertility, the country is widely recognised as a global destination for ‘reproductive tourism’. These contradictions and injustices are beyond the scope of a draft legislation. Even as we debate the finer points of regulation for the ART industry, a larger, life-cycle view of women who do surrogacy must raise interrelated questions of education, health, nutrition, and right to work, without disavowing the voices and choices of the women themselves.
~Vrinda Marwah works with women’s rights NGOs and is based in Delhi.