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The surrogacy bill gets it all wrong
Bans create black markets and greater vulnerability, and take away an economic option from working-class women
At a press conference in New Delhi on 24 August, external affairs minister Sushma Swaraj announced cabinet approval for the new surrogacy bill, describing it as a “revolutionary step” towards women’s welfare. On the contrary, this bill vastly compounds the vulnerability of women who become surrogates, all the while privileging a skewed and dangerous notion of family.
First, the provisions: the bill bans commercial surrogacy, and allows altruistic surrogacy for certain Indian couples. The couple must be man and woman, married legally for at least five years and medically certified as unfit to reproduce. Unmarried couples, live-in partners, single parents and gay couples will not be eligible. Married couples who already have a child, biological or adopted, will also not be eligible. The surrogate must be married and a “close relative” of the couple, who has birthed a healthy child prior to the surrogacy. She is permitted to be a surrogate only once in her lifetime. Critically, she cannot receive any money for her “selfless” act.
Now, let us consider the women this bill is meant to protect. Who are the surrogates, and why do they enter these arrangements? They are usually garment workers, domestic workers, cleaners and the like, looking to earn a lump sum amount that may pay for the building of a pukka house, or the education of their children.
Surrogacy for them is a survival strategy, a small way out of the insecurity and precariousness of their everyday lives.
Since the 1990s, India has seen a fall in the labour force participation of women, and a rise in informal sector jobs that are characterized by poor pay and difficult working conditions. This is not to say that surrogacy is the answer to the problems of this class of women; if anything, research has also shown that these lives, lived on the margins of society, are too precarious to be greatly improved by one, or a few, lump-sum payouts alone. And yes, the working conditions for surrogates in India leave much to be desired.
However, bans are certainly not the answer to these problems. Bans create black markets and greater vulnerability. We know this from the kidney trade. And they also take away an economic option from working-class women, without doing anything to ease the crippling precariousness that characterizes their lives. All bans do, then, is alleviate our conscience with the thought that we have acted, when actually we may have done more harm.
We are also supposed to understand commercial surrogacy—done for money—as bad, while altruistic surrogacy—done for family—is good. This dichotomy is false. Commercial surrogates feel very altruistically about what they do; they are after all, enduring physical and emotional pain to provide a better life for their children. They see themselves as making the gift of life to others who yearn for children.
As for family, this bill perpetuates the myth that only one kind of family is legitimate, and also completely above reproach. The bill is deeply homophobic and misogynist in denying access to single people, unmarried and gay couples. In fact, if we know anything from the reams of journalistic, activist and scholarly writing on the family, it is that it can be the most exploitative space for women. Think sex selection, domestic violence, honour killing, dowry, child abuse, marital rape and the denial of education, nutrition and inheritance—all depressingly routine in our society. Allowing close relatives to be surrogates in no way ensures that the arrangement will be free from exploitation. What it will definitely ensure, though, is that so-called altruistic surrogates will now do for free the work commercial surrogates have done so far for money.
And this will not be the first time this government has jettisoned evidence to propound instead a dangerously romanticized idea about the family: the controversial child labour bill passed earlier this year allowed children to work in family-owned businesses and drastically reduced the list of banned jobs for children, defeating its very purpose.
To be clear, commercial surrogacy is not problem-free. Surrogates have little information about the procedures they are undergoing. Post-delivery they relinquish the baby immediately and do not receive follow-up care. They get no legal or psychological help. They sign contracts they don’t understand, and agents and doctors control how much, and how, they are paid. My intention is not to deny the exploitative conditions under which commercial surrogacy takes place in India. Many feminist scholars and activists would concur. But could the government not have organized the surrogates into a union and listed their rights as contracting workers? This would have given them much-needed bargaining power. To ban commercial surrogacy is a gross misreading and misdiagnosis of the problem.
At the press conference on 24 August, Swaraj said that commercial surrogacy is against our “ethos” in India. Taking away even the most modest means of survival from poor women, moralizing from a comfortable distance about how they should use their bodies, and valorizing women’s unpaid labour within potentially exploitative families—is this the Indian ethos?
Vrinda Marwah is a doctoral candidate at the University of Texas at Austin. She researches reproductive health in India.
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Business NewsOpinionThe surrogacy bill gets it all wrong
First Published:1 Sep 2016, 01:07 AM IST
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