Socio-ethics of Surrogacy in India and Reproductive Justice

India had become one of the most popular global destinations for commercial surrogacy by the year 2015, providing standardised in-vitro fertilisation technology and English-speaking doctors for cheaper rate especially to couples seeking surrogacy from abroad. Surrogacy agents linking clinics in India with prospective parents abroad had mushroomed all over the world. However, it was only during my field work in 2009-10 that it became evident to me that intended parents from abroad were coming to India mainly because surrogate mothers had lesser rights over the child and over their own bodies as compared to Canada, USA and UK and also because of the unregulated manner in which surrogacy was practiced. I conducted my research in two clinics in India, one in a smaller town in Gujarat with three surrogate homes and one without a surrogate home in Ahmedabad between 2009 – 10. I interviewed five intended parents, 13 surrogate mothers, and five medical practitioners. Among these, I closely followed five surrogate mothers throughout their pregnancy (from embryo transfer to post relinquishment) and five intended parents using participant observation method and hence could interact intensively also with their spouses and family members.

Most women in my study were living on the edge of poverty wanting to provide for their children’s education, to pay for a dowry, marriage or sickness in the family, to buy a house and to avoid slipping further into poverty, while others were involved as surrogate mothers to provide their family with immediate basic human needs and adequate food. One important ethical concern of this practice is the development of biomarkets, in which certain bodies become more bioavailable within the existing global ornational structural inequalities. As Nepal, India, Thailand, Mexico1 and Cambodia limited or proposed a prohibition on commercial surrogacy, the practice has moved to Laos, Malaysia, Kenya, Nigeria, Ghana, South Africa, Argentina and Guatemala. This pattern of globally moving markets that is based on exploitative capitalisation and the control over human reproductive biomaterial2 by the rich using global inequalities and vulnerabilities is a form of recolonisation of women’s bodies and labour. It also raises globally relevant questions of geneticisation, alienation of the gestational role, human and child rights violations, trafficking and reproductive injustice. These markets raise ethical questions of exploiting the needs of the poor particularly where disadvantaged participants enter into unjust contracts, its relevance to informed consent, unequal distribution of health resource, unfair distribution of benefits, violation of good medical practices, and commodification of women and children. Such concerns are evident not only in the transnational movement for surrogacy but also in similar biomarkets such as gamete donation, organ donation, trafficking and prostitution. Along with the booming surrogacy market in India was a growing impetus for illegal activities and the nexus of trafficking young girls into this business. It has been noted that the same well-established nexus that has been used for trafficking young girls from poorer regions in India into domestic work and sex labour feeding into urban centers was also being used for surrogacy. The Government of India proposed prohibition of commercial surrogacy in Sept 2016, because of the deaths of surrogate mothers and egg donors, custody battles for children, abandonment of (disabled) children, exploitation of poor women and trafficking of women and teenaged girls for surrogacy. However, there are some continued concerns and loopholes in the new Surrogacy (Regulation) Bill 2016. This article raises some of these concerns with the present regulation of altruistic surrogacy in India. Theoretically, altruistic surrogacy means that the surrogate mother provides all the services as in commercial surrogacy, but without a remuneration. However, in practice there is evidence of several forms of money transfers.  In a TV debate in India, Dr. Nayna Patel noted “nobody would be ready to do surrogacy for someone else without money, among the 1120 babies born in my clinic through surrogacy, only 25 were within the family and they were not for free” (Time 2015). Presently India is following the British system in allowing altruistic surrogacy. While the entire globe should follow Sweden towards a complete prevention of surrogacy on the grounds of violation of women’s bodily integrity, human rights violation and non-conformance with reproductive justice. The altruistic surrogacy continues to be based on the necessitation of surrogacy as a need to solve infertility and naturalises genetic ties as the most desired form of child bearing and rearing. The surrogacy practice hence promotes deeply embedded pronatalist, patriarchal, racial and ableist hegemony.

The Global Indian Surrogacy Industry

Many intended parents poured into India seeking surrogacy even from countries where surrogacy was permitted or altruistic surrogacy was allowed such as Canada and UK. It is estimated that 60 – 80% of all surrogacy pregnancies in India were commissioned by foreigners (Bhalla and Thapliyal 2013). According to Dr. Sudhir Ajja from a Mumbai-based fertility bank that has produced 295 surrogate babies, he catered to 90% overseas clients and 40% same-sex couples, since it opened in 2007 (Bhalla and Thapliyal 2013). Dr. Nayna Patel boasted of 500 babies born until 2013 through surrogacy, two-thirds of whom were for foreigners and people of Indian origin living in over 30 countries abroad (Bhalla and Thapiyal 2013). Hence, surrogacy practice, just like the garment industry, is a specific form of classist and racist exploitation of reproductive labour directed at the vulnerabilities of women primarily from the Global South catering to demands in the Global North.

Intended parents were coming to India primarily because the surrogate mothers had minimal rights over their body or the baby, these women are also willing to abide by all the rules imposed by the clinic and the intended parents in their desperation to bring their families out of poverty. The clinics in India were drawing on this steady supply of socio-economically disadvantaged women willing to become surrogate mothers. Typically, the surrogate mothers have lesser employment opportunities with lower educational qualifications and were employed in the informal sector such as: domestic work or garment factory workers with no form of employment security or allowances. This situation meant that they had lesser bargaining power to fight for their rights within the surrogacy process as well. Surrogate mothers in India had to sign off all rights over the child in the contract. Surrogacy was practiced in a manner in which women had to sign off all rights over their bodies during the surrogacy process. Hence the surrogate mother could not question any medical intervention on her body such as selective abortions and caesarean sections but also social interference such as mandatory rules to stay in dormitories. Moreover, the women were also vulnerable due their substandard health status making them susceptible to maternal mortality and morbidity. There were violations of good medical ethics, clinics were also involved in several illegal activities trying to take advantage of the loopholes and ambiguity in the law. Women were detained in dormitories for almost one year, from the embryo transfer to the delivery and also post-delivery to breastfeed and provide nanny care according to the requirements of the intended parents or the clinic. In these dormitories, they were kept under strict conditions restricting their movement and meeting with their family members and children, rules on food intake in order to increase their weight and limits on the kind of music they could listen to and additionally were made to breastfeed the children and provide nanny care after birth. The surrogate mothers were paid according to their weight gain during pregnancy and their final payment depended on the birth weight of the child or preferred sex of the child. It is a concern and challenge how the present Bill will be able to monitor these known illegal practices within the surrogacy industry in India.

There were severe violations of good medical practices in the clinic in Gujarat. Although legally only 3 embryos were allowed to be transferred into the surrogate mother’s womb, up to 5 embryos were being transferred and in-utero selective abortions were conducted if more than two embryos progressed into successful pregnancies. Invariably all the deliveries were forced cesarean sections; even if the surrogate mothers developed labor pains they were rushed to the operation theatre for emergency cesareans. After several months of nanny care and breastfeeding, the surrogate mothers were suddenly separated from the children causing severe psychological harm. While for the intended parents, this was a justified move as they felt an ownership right over the child(ren) based on their genetic link or as commissioners of the surrogacy contract, the surrogate mothers perceived themselves as a mother based on the cultural context and the child as a sibling to their existing child(ren). The baby was also on sale with the payment based on the weight or sex of the child, every extra child in twins or triplets were priced extra, not double or triple but on a concessional rate. In essence, as I have mentioned in my book titled ‘A Transnational Feminist View of Surrogacy Biomarkets in India’, surrogacy in India had turned into a “bazaar where everything about women’s reproductive capacity and the children born has been marketed and priced; the woman’s body parts, her breast-milk, her labour as a nanny, the number of child(ren) born, the weight of the babies, the gender/(dis)abilities of the child and even the surrogate mother’s caste, body weight or religion was priced” (Saravanan 2018: pg. 6).

Childlessness is socially constructed as a malady, arising from patriarchal hegemony of social norms pressurising, especially women, to use ARTs. Women in different cultures face a diminished sense of identity and social standing in the community on experiencing infertility and are pressurised into using IVF technologies as a solution (Donchin 1996). This myopic social and medical focus on women’s body to solve infertility and the perpetuation of objectification and commodification of women’s bodies is to fulfil patriarchal and commercial ends (Raymond 1993; Corea 1985; Harding 1991). Infertility is socially stigmatised and reinforces pronatalist and heteronormative identities resulting in pressures to conform with it. Genetic selection identifies the gene as being central to human personhood, identity, and social relationships. When most court cases hand over the custody of the children to intended parents, based on the genetic determination of parenthood, despite a request of custody by the surrogate mother, it reiterates geneticisation. The significance given to geneticisation and genetic essentialism, the meanings given to genetic links through the ownership over the gametes and gestation, the gestating body, and the babies born, and such naturalisations of filiality, bring us face-to-face with the memories of nineteenth-century raciological biology that haunts rhizomic theories of hybridity. Geneticisation reinforces the concepts of race and ableism encouraging social differences and domination. During the surrogacy pregnancy geneticisation plays an important role in controlling the surrogate mother’s body and after the child is born, in prioritising the parenthood of intended parents while downplaying the gestational role of the surrogate mothers. I have suggested possible inclusions in the Bill that gives optional guardianship to surrogate mothers.

Ethical Concerns on Altruistic Surrogacy

Allowing altruistic surrogacy continues to raise ethical questions on altruistic surrogacy, extra-territoriality, selective prohibition and the possible ease in which NRIs and affluent people in India will be able to continue choosing surrogacy as an option both in India and abroad for fulfilling their childbearing desires. The Surrogacy (Regulation) Bill 2016 permits altruistic surrogacy in India if the surrogate mother is a close relative. Altruistic surrogacy has been considered a better approach to reduce commercialisation. However, altruistic contracts raise ethical questions of agency especially within families in India. It also has elements of structural inequalities and previous experience from other countries, like the UK, reveals that considerable amounts are transferred in the name of medical bills in this process. Other scholars have noted that affluent families can coerce or compel their poorer relatives or maids to engage in altruistic surrogacy for them which can deepen exploitation (Rao 2015). Ranjeeta Lal, a heart patient was forced into surrogacy by her in-laws for her elder sister-in-law to compensate for the less dowry she had brought into the family (Jaipuriar 2014). A woman in my study became a surrogate mother to be able to pay off dowry for her husband’s sister. Altruistic surrogacy that allows surrogacy within close family members glorifies family reinforcing inequalities. I have also heard direct reports of people bringing their domestic maids or any other poor acquaintance for surrogacy claiming that they are their close relatives. Regarding consent, although the bill restricts coercion of women into surrogacy, it would be difficult for women to prove it legally especially after signing the consent form. Altruistic surrogacycan exploit women who may be dependent on other family members such as the first famous surrogacy case of mother dependent on her daughter and carried her baby in Anand to become the first grandmother-mother to the grandchild. It is well known worldwide that most forms of abuse take place within close families and friend circle. It is 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). Feminists criticise altruistic surrogacy as a ‘compassion trap’ that glorifies the surrogate as a generous-loving woman offering a gift of love to lonely-childless couples.

Moreover, altruistic surrogacy also involves money transfers. Evidence from other countries, like the UK, reveals that considerable amounts are transferred in the name of medical bills in this process. UK was one of the main source countries in the surrogacy markets of India because the surrogate mothers in India have lesser rights over the child. Moreover, it has also been observed in countries that allow altruistic surrogacy that affluent citizens tend to move to other countries for accessing surrogacy. Extra-territoriality is another important ethical concern. These laws have been implemented in some countries imposing strict rules on citizens who travel abroad 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.The global pattern of surrogacy that is moving to Africa and South America after many Asian countries banned commercial surrogacy is a clear indication that global inequalities play a major role in this biomarket. India hence needs to tighten their extra-territorial laws to ensure that there is no scope for affluent couples to move out of India for surrogacy and return with children.

Corea (1985) strongly objected to surrogate motherhood as it creates divisions among women referring to this phenomenon as “segmented reproduction” that divides women into child-begetters, child-bearers, and child-rearers. She critiques this segmentation as if it were a mode of production of genetically superior women begetting embryos, strong-bodied women bearing the babies to term, and sweet-tempered women rearing the infants to adulthood. Colen’s (1995) concept on stratified reproduction is similar to Corea’s reference as it examines reproductive labour of bearing, rearing, and socialising children that may be differentially experienced, valued, and rewarded according to inequalities of access to material and social resources structured by hierarchies of class, race, ethnicity, gender, place, and migration status differences, aspects of which promote or interfere with socio-economic and political status. Surrogate motherhood is not a technique in itself, but a practice that technology exploits within the already existing hierarchies and hegemonic systems. The technologies that were used earlier on one’s own body is now used on another person’s body violating their freedom, dignity and integrity. It is likely to put another woman (the surrogate mother) through social stigma, psychological challenges, violation of her bodily integrity, and also put the surrogate mother’s health, freedom, liberty and even life at stake. Hence, surrogacy cannot be considered a socially justified practice and certainly should not be considered a constitutional right. Reproductive justice aims to reduce inequalities and not to use one person’s vulnerability to fulfil another person’s reproductive liberty.

The Surrogacy Bill 2016, Human Rights and Reproductive Justice

Despite the above-mentioned points, if India continues to follow the British system instead of the Swedish pattern, I would suggest some possible changes in the present Bill. The primary reason for the proposed ban of surrogacy in India was because there was exploitation and commodification of women and children. It is commendable that India is proposing to prohibit commercial surrogacy and the Bill has several aspects that aim at reducing exploitative elements in the practice. However, because surrogacy itself is inherently an exploitative practice the Bill needs to aim at reducing the ease at which surrogacy becomes an option to intended parents. Since surrogacy and other IVF possibilities are now easily available to the affluent in India, the adoption rates are declining rapidly (CARA 2018). The intended couples should be able to provide proof of: their inability to conceive, to have tried IVF on themselves wherever applicable and proof of having tried adoption as an option before they can choose surrogacy. Even medical clinics are meant to assess the reproductive capacity of the couple, suggest IVF wherever possible followed by suggesting adoption before the intended parents can choose surrogacy as an option. In my study, there were couples completely able to conceive and yet had opted for surrogacy. To some extent, this may also address the ease at which NRIs are coming to India for a short while and returning with children born through surrogacy. Hence, a detailed review of the Surrogacy (Regulation) Bill 2016 reveals that it has left some ambiguities and omitted certain other important elements. It is very important that these ambiguities and omissions are addressed before the practice takes over some of the existing loopholes.

A great deal of attention needs to be paid to the conditions of the surrogacy contract and to address the questions of exploitation once the contract has been made. The rights of the surrogate mother during the surrogacy; her right to eat and perform all her normal day-to-day activities, her right to remain free from any form of detainment or conditions by the doctors or the intended parents unless required for medical reasons and her right to choose the kind of contract. The surrogate mother should not be restricted from engaging in her non-reproductive aspirations during the pregnancy. The insurance support should extend into post-partum as it is known that most maternal complications occur during this phase. It is known that widowed and deserted women were getting involved as surrogate mothers, there is no clarity in the Bill on this.

Within the regulation, there should be a possibility of choosing an open or closed contract. An open contract is one in which both the surrogate mother and the intended parents desire to continue their relationship after the birth of the child. In case of the close relatives it would more often than not that the surrogate mothers will be known to the intended parents and would like to have an open contract for a continuous relationship. While the closed contract is one in which both the intended parents and the surrogate mothers are not obliged to engage in any further contact. Until now in India, the surrogate mothers were never asked their consent and a closed contract was enforced on them. The present Surrogacy (Regulation) Bill 2016 also follows the same pattern. Chapter I, 2 (zb) says, “Surrogacy means a practice whereby one woman bears and gives birth to a child for an intending couple with the intention of handing over such child to the intending couple after the birth” (Minister of Health and Family Welfare, Bill No. 257 of 2016:3). The Bill should include a clause that the surrogate mother can become a legal guardian of the child if she desired to. Even if the custody of the child is handed over completely to the intended parents it should be done after the birth of the child and with full consent of the surrogate mother. Even if she signs a contract of closed surrogacy, she should be allowed to revert into an open surrogacy after the child is born. Requiring a surrogate mother to decide even before pregnancy about her parenthood expressions, during and after birth, represses any feelings that may possibly emerge towards the child during pregnancy or childbirth, and also giving others the power to hold her guilty if she diverges is ‘alienation’ (Pateman1988). As questioned by Anderson, “What if, despite her initial intentions, she finds herself coming to love her own child?”  (Anderson 2000: 27).

International Coalition for Abolition of Surrogate motherhood supported by hundreds of organisations calls for recognising surrogacy as a human rights violation on the grounds of: gender equality, emancipation and autonomy of women; legal access to abortion and contraception; equality between heterosexual and homosexual sexualities. This charter and coalition was formed after several conferences and events were held all over Europe starting from 2011. Apart from this, there is an important consideration of the human rights of children. The only right mentioned in the bill is the right of the child to be considered equivalent to the biological child of the intended parents. However, there is a surrogate mother who carried the child, hence the child should have the rights to know the surrogate mother. Surrogacy consciously creates a state of abandonment by denying the rights of the child to know his/her origin and the rights of the surrogate mother over the child, to know about his/her well-being and maintain a long-standing relationship. There have been children who have suffered as a result of not knowing their personal history.3 The Rome Petition asked for a procedure to be set up for the recognition of the new-born, which shall be consistent with the rules on the rights of the child, especially with Article 7 (1) of the Convention on the Rights of the Child, which recognises the right of the child to know his or her mother and, as far as possible, to be cared for by her (The Rome Petition 2017). Hence, keeping the child rights in view, surrogacy not only violates the human rights of women’s bodies but also of children.

In the garb of reproductive liberty, the surrogacy practice promotes deeply embedded pronatalist, patriarchal, racial and ableist hegemony. The reproductive liberty argument is limited to individual level and is hence inadequate in analysing the complete complexity of global inequalities. Applying the reproductive justice framework, I argue that surrogacy is likely to put the surrogate mother through multiple forms of indignity and injustice along with life risk and hence cannot be considered the intended parent’s reproductive right. Any form of individual liberty that seriously impinges another’s health and freedom, violates another person’s dignity, integrity or economic needs does not conform to the reproductive justice framework.

References:

Anderson, Elizabeth S. 2000. Why commercial surrogate motherhood unethically commodifieswomen and children: Reply to McLachlan and Swales. Health Care Analysis 8: 19–26.

BBC News, Thailand bans commercial surrogacy for foreigners, Feb. 20, 2015,http://www.bbc.co.uk/news/worldasia-31546717.

Bhalla, Nita, and Mansi Thapiyal. 2013. Foreigners are flocking to India to rent wombs and grow surrogate babies. Reuters, Business Insider. https://www.businessinsider.com/india-surrogate-mother-industry-2013-9?IR=T

CARA 2018. Adoption Statistics.Central Adoption Resource Authorities, New Delhi.Ehttp://cara.nic.in/resource/adoption_Stattistics.html. Accessed on 13th October 2018.

Colen, S. 1995. Like a mother to them: Stratified reproduction and West Indian childcare workers and employers in New York. In Conceiving the new world order: The global politics of reproduction, ed. F. Ginsburg and R. Rapp, 78–102. Berkeley: University of California Press.

Corea, Gena. 1985. The mother machine: Reproductive technologies from artificial insemination to artificial wombs. New York: Harper and Row.

Donchin, Anne. 1996. Feminist critiques of new fertility technologies: implications for social policy. The Journal of Medicine and Philosophy 21 (5): 475–498.

Harding, Sandra. 1991. Whose science/whose knowledge? Milton Keynes: Open University Press.

International Coalition for the Abolition of surrogate Motherhood 2018. http://abolition-ms.org/en/home/

Jaipuriar, V. 2014 ‘Dowry cry in surrogacy death – Woman’s brother files FIR, accuses in-laws of conspiracy’. 2nd October, The Telegraph, Jharkhand. https://www.telegraphindia.com/states/jharkhand/dowry-cry-in-surrogacy-death-woman-s-brother-files-fir-accuses-in-laws-of-conspiracy/cid/320485. . Accessed 14 Oct 2018.

Meta, Kong. 2017. ‘Cambodian Surrogacy Law due in 2018. The Phnom Penh Post, Phnom Penh, 11th August 2017, Cambodia.

MoHFW 2016.The Surrogacy (Regulation) Bill, 2016.Ministry of Health and Family welfare, Government of India.

Pateman, C. 1988. The sexual contract. Stanford: Stanford University Press.

Photopoulos, Julianna. 2015. US couple ‘trapped’ in Mexico following surrogacy law change, BIONEWS, May 11. http://www.bionews.org.uk/page_522610.asp. Accessed on 19th October  2018.

Raymond, Janice G. 1993. Women as wombs: Reproductive technologies and the battle over women’s freedom. San Francisco: Harper.

Saravanan, S. (2013).An ethnomethodological 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.

Saravanan, S. (2018) ‘A Transnational Feminist View of Surrogacy Biomarkets in India’. Singapore:  Springer Nature Singapore Pte Ltd.

Time. 2015. Outsourcing surrogacy. Red Border Films.YouTube.https://www.youtube.com/watch?v=N9FPiNc6-dI. Accessed  on 14th Aug 2017.

The Himalayan. ‘SC turns down petition seeking to allow surrogacy’, Kathmandu 6th January 2018. https://thehimalayantimes.com/kathmandu/sc-turns-petition-seeking-allow-surrogacy/

The Rome Petition. 2017. 2nd NGO European meeting on the abolition of surrogacy. 27th February. European Women’s Lobby: piazza di Monte Citorio, Rome.

1 Mexico prohibited surrogacy in Tabasco state (Photopoulos, 2015). In Nepal, The Supreme Court (SC) of Nepal has issued an interim order to immediately halt the surrogacy (The Himalayan 2018). Thailand banned commercial surrogacy for foreigners (BBC 2015). India has proposed a ban on commercial surrogacy since Sept 2016 with the Surrogacy (Regulation) Bill (MoHFW 2016).Cambodia has proposed a ban on commercial surrogacy (Meta 2017)

2 Human biomaterial refers to the child making industry that is based on biological material such as oocyte, sperms, stem cell, tissues, breast milk and the surrogate mother’s womb.

3  European Court of Human Rights 2017; http://www.echr.coe.int/Documents/FS_Childrens_ENG.pdf

(Dr. Sheela Saravanan is a Research Associate at South Asia Institute, University of Heidelberg, Germany.
She is the author of the book ‘A Transnational Feminist View of Surrogacy Biomarkets in India.’)

(This article is carried in the print edition of November-December 2018 issue of India Foundation Journal.)