Study of the Phenomena of Commercial Surrogacy in India and Analysis of Legal, Political and Economic Responses to It

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Introduction

Assisted reproductive technologies (ARTs) have revolutionized infertility treatment in the last century. It has given hope to hapless couples, and enabled children to be conceived, who have no genetic relationship to one or both of their parents. ART is also being used by persons without infertility problems to minimize the risk of transmitting certain genetic disorders such as in the case of people who are recessive carriers of abnormalities, such as sickle cell anaemia, thalassemia, and Tay-Sachs disease. Surrogacy comes to the rescue, which is part of ART. The term “surrogate” literally means “substitute.” A surrogate mother is therefore a “substitute mother.”[footnoteRef:1] [1: 1Shah, D; Rasool, S; Nagarajan, N. Assisted reproductive technologies in the global south and north: issues, challenges and the future. In: Rozee, V; Unisa, S, editors. Surrogacy in India: the good, the bad and the ugly. 1st ed. London: Routledge; 2016. P.103-111.]

India has been dubbed the “surrogacy capital of the world” and the law seeks to address concerns that surrogacy in India is an unregulated business. At present, the industry is estimated to be worth more than $1bn a year.[footnoteRef:2] The move to ban commercial surrogacy hasn’t come as a shock in India, as the decision to pass the Surrogacy (Regulation) Bill, 2016 is a culmination of a process that began in 2009, when the Law Commission of India in its 228th report recommended a prohibition on commercial surrogacy, a procedure by which a woman accepts a fee to carry an embryo to term for another couple[footnoteRef:3]. The statement and objects of the law declared that India had become a hub for commercial surrogacy and several incidents of women being exploited had come to light. The law seeks to end such exploitation and regulate non-commercial or “altruistic surrogacy”. [2: Nita Bhalla & Mansi Thapliyal, “India seeks to regulate its booming surrogacy industry”, Medscape, Reuters Health Information, 30 September, 2013, available at https://www.medscape.com/viewarticle/811861?nlid=35152_2043&src=wnl_edit_medn_obgy&uac=149266AJ&spon=16 (Last accessed on 1 January 2019)] [3: The Law Commission of India , 228th Report on Need for Legislation to Regulate Assisted Reproductive Technology Clinics As Well As Rights and Obligations of Parties to a Surrogacy, (August, 2009)

(http://lawcommissionofindia.nic.in/reports/report228.pdf)]

1. Background

Surrogacy refers to the method ‘whereby one woman (the surrogate mother) becomes pregnant with the intention that the child should be handed over to the commissioning couple after birth’[footnoteRef:4]. This option is available to women who, in most cases, are unable to carry a child, or bring a pregnancy to term, or to produce eggs that can be fertilised and gestated by them, and, thus, employ a surrogate to do it for them. It is an agreement between the commissioning parents and the surrogate mother, a practice by which a woman becomes pregnant and gives birth to an infant in order to hand over the same to someone who cannot have biological children. Commissioning parents may seek a surrogacy arrangement when pregnancy is medically impossible, pregnancy risks present an unacceptable danger to the commissioning mother’s health, to avoid manifestation of a genetic abnormality, or can be a same-sex couple’s preferred method of procreation.[footnoteRef:5]Any developments in medicine, social customs, and worldwide have paved the way for modern commercial surrogacy. [4: Jackson, E., ‘Medical Law- Text, cases and materials’, Oxford University Press, 2nd edition, 2010, p.828.] [5: Available from: www.dolphnsix.com/news/India-propose- commercial-surrogacy-ending-lucrative, accessed on 15-09-2018]

Surrogacy: A Global Overview

Many countries including the United Kingdom that have experimented with altruistic surrogacy (explained in ‘Operative Definitions’ below) have realized that banning commercial surrogacy only tends to push the whole transaction underground. A woman who bears a child for another one is performing a service and needs to be compensated for it. If altruistic surrogacy is enforced, the commissioning parents have to find some non-legal means to pay the woman who has spent a year or more of her life trying to ensure the birth of a healthy infant or infants. Here are some highlights of how other countries and regions have treated commercial surrogacy:

North America- An estimated 25,000 surrogate infants were born in the US from 1976 to 2007. A typical payment for a surrogate ranges from between US$ 20,000 and US$25,000. States that allow but regulate surrogacy are: California, Arkansas, Florida, Illinois, Nevada, New Hampshire, Texas, Utah and Virginia.[footnoteRef:6] [6: Surrogate Motherhood: Ethical or Commercial: Report by Centre for Social Research. Available from: http://www.wcd.nic.in/sites/default/files/final%20report.pdf Accessed on 21-08-2018]

Western Europe- Although surrogacy is legal in the United Kingdom, no commercial arrangements are allowed and the surrogate mother can only receive expenses – in thousands of pounds through the Surrogacy Arrangement Act – for medical and pregnancy related expenses. Most women become surrogate mothers for altruistic reasons. Only married couples can participate in a surrogacy agreement. Countries in the European Union who have banned all forms of surrogacy include Germany, Sweden, Norway and Italy.[footnoteRef:7] [7: Ibid]

South East Asia- Unclear laws regulating assisted reproductive services make Thailand, Malaysia and Philippines an ideal option for foreigners seeking surrogacy services in this part of the world. However, all forms of surrogacy are banned in Singapore.[footnoteRef:8] [8: Ibid]

East Asia- In Japan, there is no law to regulate surrogate births. Medical councils, including the Japan Society of Obstetrics and Gynaecology as well as the Science council of Japan have called for surrogacy to be banned. In 2008, it is reported that more than 100 Japanese couples have used surrogates to have children in the United States. Meanwhile, a law to regulate surrogacy is being studied.[footnoteRef:9] [9: Ibid]

1. Historical mapping of the official response to surrogacy in India- the legal and policy responses:

In last few years, surrogacy, which was started as an altruistic gesture for welfare of humankind, has taken the form of commercial surrogacy. Inter-country gestational surrogacy with monetary remuneration is one of the products of medical tourism.[footnoteRef:10]India is considered one of the world leaders in surrogacy, second only to Thailand[footnoteRef:11]. There are several factors working in favour of India, such as cheap costs of medical facilities, travel and lodging, large numbers of well-qualified doctors, and well-equipped private clinics.[footnoteRef:12] Medical travel is in fact a flourishing business. The Indian structure is closest to the liberal market model of surrogacy in California, where surrogacy births are primarily managed by private, commercial agencies that screen, match, and regulate agreements according to their own criteria and without state interference.[footnoteRef:13] [10: Rainskold L, Posner MP. Commercial surrogacy: how provisions of monetary remuneration and powers of international law can prevent exploitation of gestational surrogates. J Med Ethics 2013 Jun; 39(6):397-402] [11: Surrogacy Boom‘, article by Shuriah Niazi, October 14, 2007, by arrangement with WFS, Source: http://www.boloji.com/wfs6/wfs1027.htm] [12: Pande A. Transnational commercial surrogacy in India: gifts for global sisters. Reprod Biomed Online 2011 Nov;23(5): 618-625] [13: Teman, E. The birth of a mother: my theologies of surrogate motherhood in Israel [PhD dissertation]. Department of Sociology and Social Anthropology, The Hebrew University of Jerusalem;2006]

A set of guidelines[footnoteRef:14] was prepared by Indian Council for Medical Research (ICMR) in the year 2005, to protect the right of the surrogate mother, the newborn and the parents which made the practice legal, but did not give it legislative backing. This led to a booming surrogacy industry that had lax laws and no enforcement. Mushrooming of surrogacy clinics in India has created many social, ethical, and legal issues, which can be seen by studying various cases, one very prominent of which is Baby Manji’s case. [14: The ART (Regulation) Rules, 2010, Ministry of Health & Family Welfare, UoI. Available from: https://www.icmr.nic.in/sites/default/files/guidelines/ART%20REGULATION%20Draft%20Rules%201.pdf]

Baby Manji Yamada[footnoteRef:15] was a child born to an Indian surrogate mother for a Japanese couple who, before a month of the child’s birth, separated and the future of the child was left in dark. Supreme Court of India had to intervene and the child was allowed to leave the country with her grandmother. [15: Baby Manji Yamada vs. Union of India and Another (2008) 13 SCC 518]

To ensure that there is a law to protect the interest of the surrogate mother and the child who is born through surrogacy, the Assisted Reproductive Technology (Regulation) Bill[footnoteRef:16] was drafted in 2008 to look into the rights and duties of the surrogate mothers. But the loopholes which were present in the ART Bill were highlighted in the case of Baby Manji Yamada. [16: Artificial Reproductive Techniques (Regulation) Bill submitted by the Ministry of Health & Family Welfare, available at http://www.prsindia.org/uploads/media/vikas_doc/docs/1241500084~~DraftARTBill.pdf]

In August 2009, the Law Commission of India, in its 228th Report[footnoteRef:17] observed as follows: [17: The Law Commission of India , 228th Report on Need for Legislation to Regulate Assisted Reproductive Technology Clinics As Well As Rights and Obligations of Parties to a Surrogacy, ( August, 2009)]

The legal issues related with surrogacy are very complex and need to be addressed by a comprehensive legislation. Surrogacy involves conflict of various interests and has inscrutable impact on the primary unit of society viz. family. Non-intervention of law in this knotty issue will not be proper at a time when law is to act as ardent defender of human liberty and an instrument of distribution of positive entitlements. At the same time, prohibition on vague moral grounds without a proper assessment of social ends and purposes which surrogacy can serve would be irrational. The need of the hour is to adopt a pragmatic approach by legalizing altruistic surrogacy arrangements and prohibit commercial ones.[footnoteRef:18] [18: The Law Commission of India , 228th Report on Need for Legislation to Regulate Assisted Reproductive Technology Clinics As Well As Rights and Obligations of Parties to a Surrogacy, ( August, 2009), Para 4, Pg 6-7]

On the suggestions given by the Law Commission the government made certain amendments to the Assisted Reproductive Technologies (Regulation) Bill, 2010, for the first time attempt to plug the loopholes which prevail in the field of surrogacy. Both the couple or individual seeking surrogacy and the surrogate mother shall enter into a surrogacy agreement which shall be legally enforceable. It has been succeeded by the Surrogacy (Regulation) Bill, 2016[footnoteRef:19], that was tabled in the Parliament in August 2016, and subsequently passed, in December 2018.

According to the Bill, only Indian couples who have been married for at least five years can opt for surrogacy, provided at least one of them has been proven to have fertility-related issues. Also, the new Bill has put a complete ban on commercial surrogacy. Commercial surrogacy, abandoning the surrogate child, exploitation of surrogate mother, and selling/ import of human embryo have all been categorized as relations that are punishable by a jail term of at least 10 years and a fine of up to Rs. 10 lakhs.[footnoteRef:20]The Surrogacy Bill aims to prohibit potential exploitation of surrogate mothers and children born through surrogacy. [19: Surrogacy (Regulation) Bill, 2016, submitted by the Ministry of Health & Family Welfare. Available from: www.PMindia.gov.in ] [20: Ibid]

This has been followed by a report of the 102nd Parliamentary Standing Committee which closely examined the provisions of the 2016 Bill and held public consultations. The report, submitted in September 2017, has made various observations and recommendations,[footnoteRef:21] primarily in favour of commercial surrogacy but with safeguards for the surrogate. This research proposes to make a comparative analysis of the 2016 Bill and the Parliamentary Standing Committee report. [21: Parliament of India, Rajya Sabha, Report No. 102, on The Surrogacy (Regulation) Bill 2016, Presented to the Rajya Sabha on 10th August, 2017 available from http://www.prsindia.org/uploads/media/Surrogacy/SCR-%20Surrogacy%20Bill,%202016.pdf]

2. Literature Review

Commercial surrogacy is and has been most common in the US foremost the state of California, influencing the research on the issue. However in the last years as surrogacy has increased in India, scholars have done research on the subject from several disciplines and angles (Pande 2010, Sandoval 2010, SAMA 2012, and CSR 2010). The phenomenon has been discussed from identity standpoints (Pande 2010) and legal standpoints (McLachlan and Swales 2009) as well as the medical risks for all involved (Nakash and Herdiman 2007).

In commercial surrogacy the labour of carrying a child is moved from the private sphere, the institution of the family, where it is granted legitimacy and recognition, to the sphere of the market. As the norms of childbirth also transgress and apply to commercial surrogacy without change it results in categorizing commercial surrogacy as indecent (SAMA 2012:133). The norms of reproduction make commercial surrogacy illegitimate work that is stigmatized and undignified (ibid.). However the medical practice is motivated by the success rates of the clinics and the demand of the commissioning parents which leads to invasive procedures that affects the surrogates’ body both under and post pregnancy (SAMA 2012:137). The treatment of one party, the infertile couple, is risking the health of another party, the surrogate, and this poses great medical ethical challenge where the treatment of the financially privileged are directly damaging for the health of the unprivileged.

Pande also studies how the popularly used rhetoric of commercial surrogacy in the global North of gift, sisterhood and mission is used in India (Pande 2011:624). She concludes that the narratives of these concepts materialize inequalities between the surrogate mother and the commissioning parents that are based on class, nationality and race instead lessen the monetary character of commercial surrogacy (ibid.). The narratives surrounding commercial surrogacy reinforce the primary identity of the surrogate mothers as dependent mothers and not as independent workers (Pande 2009:141). Surrogates, intended surrogates, medical practitioners, government officials, commissioning parents and representatives of the civil society in India communicate surrogacy within three main definitions, as a medical intervention, with the technique and the infertile parents to be in focus, as a commercial enterprise, with the economic benefits of the parties and society in focus, and as altruistic exchange, where the process is communicated as charitable and as an act of solidarity.

The concept of sexual or gendered division of labour, derives from socialist feminists in the 1970s and 1980s and is used to illustrate how capitalism has taken advantage of inequalities created by patriarchal social relations and created hierarchal working practices (Kuhn, Wolpe and Hartmann in Ferguson 2013:1). At the same time Elson and Pearson analysed the gendered impact of the shift of production from the global North to the global South (Rai 2013:6). They show how export-oriented production built on cheap labour of the global South, foremost female labour, was seen as disciplined and pliable and with that reinforced gender hierarchies (ibid.). They, in line with the gendered international political economy, discussed how women’s skills are seen as natural and valued less than the skills of men that are seen as acquired (Rai 2013:6). Some feminist analysis of economics engaged in showing how the state-regulated and stabilized gendered divisions of labour and how activists challenged exploitation and developed alternative measurements and categorizations of work (Rai 2013:7). To recognize a gendered division of labour does not necessarily mean that women are always in a worse position than men but that labour markets are always gendered (Ferguson 2013:2).

Social reproduction is a central concept for investigating the consequences for women of the public/private divide (Rai 2013:3). Social reproduction can be defined as biological reproduction, unpaid production of services and goods and as reproduction of ideology and culture that stabilizes the dominating social relations (Hoskyns and Rai in Rai 2013:3). Excluding social reproductive work from national calculations of production and exchange leaves most of the reproductive labour outside of what is seen as production (Rai 2013:3). Not recognizing social reproductive labour makes the work hard to value and to compensate for its effects (Rai 2013:4). Most of the social reproduction is done by women and is not acknowledged as work (Rai 2013:3). Different views on how social reproduction should be viewed, as commodity production or if the concept is too complex to view as production at all have been discussed by feminist scholars (ibid.).

3. Statement of problem:

Commercial surrogacy in India is viewed as a problem, and the State plays a paternalistic role, trying to ‘protect’ women from exploitation. This approach, however, results in a violation of women’s right to sexuality, bodily integrity and sexual/reproductive autonomy. The transactional process of surrogacy is often viewed as exploitative, or as bad work. It is not counted as paid. It thus becomes important to view commercial surrogacy and its regulation from a legal, feminist and economic perspective as well to understand why gestational carriers are not seen as ‘workers’ or ‘labour’ and if they are, what is problematic about it. There exists a competing set of rights between surrogate mother and commissioning parents, and how the state has a responsibility to balance the two, even while addressing the economic and social vulnerabilities faced by the surrogate mother. The researcher aims to highlight the morality-driven approach of the Sate in this regard. The researcher will discuss how there is a fear that surrogacy will disrupt the patriarchal notion of family and motherhood that law, and the Indian state carry, and how such a prohibition of commercial surrogacy may potentially drive the practice underground, leading to increased vulnerability of the surrogate mother and further violation of her rights.

4. Aims and objectives

Overall Objective

To study the phenomena of commercial surrogacy in India and analyse the legal, political as well as economic responses to it, through a feminist lens.

Specific Aims

To understand the attitudes towards surrogacy and women’s’ reproductive choice as well as responses to commercial surrogacy by the judiciary, executive and legislature through a feminist lens; and
To analyse if the prohibition on commercial surrogacy that the 2016 Bill advocates, would be beneficial to promoting the rights of women in India.

5. Research questions

What have been the responses of the Indian judiciary, executive and legislature as well as other relevant stakeholders to the phenomenon of commercial surrogacy in India?
Are these responses consistent with / likely to lead to the promotion and protection of women’s rights in India?

6. Methodology

This study will adopt the feminist research methodology. As pointed out by Weiner (1994, cited in Burns D., Walker M., 2005), feminist research is critical, political and praxis-oriented. Sandra Harding (1987 cited in Burns D. And Walker M., 2005) has articulated three epistemological positions.

Feminist empiricism- The research that excludes women’s voices provides only partial understanding of reality. Inclusion of women’s voices is thus central to feminist methodologies.
Feminist standpoint- Harding claimed that, ‘women have a broader perspective on social reality because of their understanding of their own gendered oppression (their standpoint) and that the subjectivity of the researcher is crucial in the research design and must be taken into account in her interpretation.’ (Burns D., Walker M., 2005) Standpoint theory argues that some social situations are scientifically better than others to start off knowledge projects. (Harding, 1993)
Feminist postmodernism- this position challenges the understanding of ‘women’ as monolithic category and argues that there are many versions of social reality.

This will be Qualitative Research using the feminist lens, with reliance on secondary sources. Where required, quantitative aspects such as credible data will be incorporated and relied upon. The time constraint does not allow the researcher to engage in primary data collection, and therefore the researcher will be relying on secondary sources, such as books, articles, journals and pre-recorded interviews in order to carry out my research. The researcher will also be relying on feminist theories that highlight the protectionism v/s scientific liberalism and the corrective v/s protectionist approach conflict, and also, bring out clearly the neo-liberal and patriarchal bends of the State in its policies.

7. Operative definitions:

· IVF: IVF is a method of helping a woman to have an infant in which an egg is removed from one of her ovaries, fertilized outside her body, and then replaced in her womb. IVF is an abbreviation for ‘in vitro fertilization[footnoteRef:22]’. [22: Available from the HarperCollins English Dictionary at https://www.collinsdictionary.com/dictionary/english/ivf]

Types of Surrogacy-

A) On the basis of fertilization process:

Genetic surrogacy or partial surrogacy: This is the most common type of surrogacy. In this type, the egg of the surrogate mother is fertilized by the commissioning male’s sperm. In this way, the surrogate mother is the biological mother of the child.

Total surrogacy: The surrogate mother’s egg is fertilized with the sperm of a donor, not with that of the man among the commissioning parents.

Gestational surrogacy or full surrogacy: The commissioning couple’s egg and sperm have gone through in vitro fertilization and the surrogate mother is not linked to the child.[footnoteRef:23] [23: Available from: www.positive-parenting-ally.com/ethics-of- surrogacy.html]

B) On the basis of contractual/ monetary agreement (or the lack thereof):

Altruistic surrogacy: The surrogate mother is not paid for her services. She “offers her womb” as an act of altruism. Most often, there will be a pre-established bond between the surrogate mother and the commissioning parents. Typically, the surrogate mother is a friend or a relative.

Commercial surrogacy: In this type of surrogacy, the surrogate mother receives compensation from the commissioning parents for carrying the child. In most cases, the surrogacy agency deals with all the practical arrangements from finding a suitable surrogate to dealing with all the paperwork.[footnoteRef:24] [24: Available from: http://www.livemint.com/opinion/1e8HICp09ZjEeNPU5U/surrogacy-Bill-Modi-govt-sets-new terms.html]

Surrogates in countries like India form ties with commissioning parents that cross boundaries based on class, caste, religion, and sometimes even race and nation.[footnoteRef:25] [25: Pande A. “It may be her eggs but it’s my blood”: surrogates and everyday formers of kinship in India. Qual Social 2009 Dec;32(4):379-397]

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