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The Curious Case Of Commercial Surrogacy

By Sneha Banerjee

09 March, 2011
Countercurrents.org

The flourishing commercial gestational surrogacy industry in India has led to an intriguing debate which compels thinking about commercialization of women’s reproductive labour. Views in this context are sharply polarized and the phenomenon is often looked at in ‘boon or bane’ terms. However, when the issue at hand involves exploitation, it is imperative to consider the conditions that drive some women towards contractually ‘renting’ their womb – a choice which is often not a ‘respectable’ one in our society. But one may wonder, how is a contract among ‘consenting’ parties, exploitative? More so when it is apparently a win-win situation for all – the commissioning parents get their much desired ‘biological’ child and the ‘surrogate’ mother gets her much needed money! Firstly, it is exploitative because the social construction of ‘infertility’ often drives the commissioning parents to spend an insane amount of money to have a ‘biological’ child, while adoption is rendered an unfortunate option of ‘last resort’. Secondly, the woman who agrees to be the ‘surrogate’ mother is often unaware of the immense health risks involved in such a process but is consoled by the multi-billion dollars Assisted Reproductive Technologies (ARTs) industry in a rosy language that she is ‘helping realise the dreams of an unfortunate childless couple’, while using her uterus as a mere 'incubator'. Thirdly, while ARTs can be hailed as a boon for non-heterosexual people who can now have children through ‘surrogacy’, the Indian ART industry caters to demand only from foreigner homosexual couples while in India homosexuality is not legally recognised – clearly discriminatory.

Media reports about women who act as commercial surrogates indicate that they are not the poorest of the poor or street-dwellers, nor are they rich or middle class – they belong to disadvantaged sections in urban and semi-urban areas which has aspirations of a ‘good life’ where the children need to get education, there are aspirations of owning a house, some are on the look-out for the initial investment for an entrepreneurial aspiration, but on the whole there is a daily struggle to make ends meet. In such a situation, earning approximately Rs 3 lakh in just nine months using something every woman has – a womb – is hard to resist. But this in fact is an instance of commodification as feminists observe where biological reproduction itself, removed from the terrain of ‘love’ and ‘family’ assumes the form of a remunerative work (Spar 2005). Though, gestational surrogacy does not involve ‘sex’ but only artificial insemination – it does involve renting one’s womb, the so-called sanctum sanctorum of a woman’s body. This puts commercial gestational surrogacy in the realm of what feminists call ‘body work’, a reason it is often likened to commercial sex work.

Another important feature of this booming industry in India is the kind of ‘transnational outsourcing’ it embodies, where an increasing number of commissioning parents are foreigners and the women who offer to be ‘surrogates’ largely come from disadvantaged sections of the society, something which is not merely a curious coincidence. Front-runner in attracting business process outsourcing from the global North, India is a leader in providing outsourced commercial surrogacy services too, with its hub developing in and around India’s financial capital Mumbai. In a globalized world where movement of capital is much easier than movement of labour, commissioning parents find it much easier to reach women willing to be ‘surrogates’ in India, many of whom might not even hold passports. While women’s outward migration is an established trend, employers’ painstakingly reaching women for reproductive services is a new phenomenon with deep transnational socio-economic, politico-legal implications often with ill-equipped States at the helm of affairs as evident in legal cases worldwide and recently in Indian courts. In this context, the dissonance between the 228th Report of the Law Commission of India (2009), which addresses commercial surrogacy and the latest Draft Assisted Reproductive Technologies (Regulation) Bill 2010 drafted by the Indian Council of Medical Research (ICMR) under the Health Ministry deserve an in depth critique, public scrutiny and active civil society engagement. While the former recommends “prohibition” on ‘pragmatic’ grounds, the otherwise inadequate Draft Bill thankfully does not buy this argument. A particularly important point of concern, however, is the reason why should the ‘rights of the surrogate’ be a part of a law that basically seeks to regulate technology. When limited to just a fleeting reference in one of the chapters of the ‘ART’ bill, surrogates are reduced to what Janice Raymond (1993) calls ‘Women as Wombs’. Though women's groups in the country are ambiguous on the issue but one must concur with the few voices which argue that rights of the surrogates are labour rights, their rights as unorganised workers in an otherwise organised business/industry, and deserves to be recognised as such with due attention from the Labour Ministry in addition to the Health Ministry. A prohibitory approach towards commercial surrogacy is definitely not the way to go about regulating the ART industry. Once technological innovation initiates something and business interests have ‘tasted blood’ in a sense, there can be no looking back. Any move towards banning or prohibition only drives it under the carpet and makes it clandestine, compounding women’s vulnerability against exploitation.

The curious case of commercial gestational surrogacy emerging as another kind of remunerated work that some disadvantaged women in globalised India are engaging in compels feminists and women’s rights activists to grapple with the dilemma of commodification of reproductive labour on the one hand and economic agency on the other.

Sneha Banerjee is a researcher at Jawaharlal Nehru University, New Delhi, India

 


 




 


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