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Baby makers and big brother
Banning commercial surgery will certainly push surrogacy underground, leaving poor women even more vulnerable to exploitation
When I met Sultana at the Akanksha Fertility Clinic in Anand, Gujarat, a year ago, she was preparing to become a surrogate for the second time. The first time around, the mother of three of her own boys, had given birth to a boy for an NRI couple. With the ₹ 3.5 lakh she earned for her services, she and her husband, a mechanic, had bought some land. Now, she was gathering funds to build on it—which brought her back to the clinic.
I had gone to Anand, my head in a swirl of indignation over wealthy infertile couples who were looking to ‘buy’ baby incubators, which is what surrogates essentially are. But by the time I left after speaking to women like Sultana, I was more ambivalent.
All the surrogates I met had children of their own. All were requi-red to have their husbands’ consent because they were required to live dormitory-style at the fertility centre’s so-called Surrogate Ho-use, where they attended various ‘self-improvement’ classes like tailoring and hair-dressing and received regular check-ups (and more crucially, could not disappear with their precious cargo). Under the guidelines, none used their own eggs, so none could claim any genetic or legal rights on the baby. It was just heartbreaking to know that these women were aware that they were renting out their wombs, but had no right over the baby that would be born.
But all were also aware that the money they would be paid would be far more than anything they could earn in nine months. Many, like Sultana, were returning for a second round of surrogacy—the cap placed on surrogates by the clinic. “It’s hard to give up a baby even if it is not your own,” Sultana told me. “I am not doing it only for the money, I want to help couples who cannot have children. But, yes, the money will give my own children a better life.”
Assisted reproductive techniques (ART), including surrogacy, is one of the many marvels of modern medicine. But it has also led to ethical questions: How do you define parenthood of a child born from, say, a donor sperm, a donor egg and gestated in a surrogate? Should motherhood be commercialized? Is in-vitro fertilization just a fancy term for ‘designer babies’? What happens when a surrogate develops an emotional bond with the child she is carrying and doesn’t want to give it up?
There are no easy answers, and yet, these are questions we must ask.
Astonishingly, in the 20-plus years since ART has been around in India, there has been no law, only a set of guidelines. A bill has been languishing since 2010, and is expected to be finally introduced in Parliament this winter session.
Among its many provisions is a ban on both foreigners and commercial surrogacy. Under the current guidelines, foreigners who seek surrogacy services must prove that their countries will recognize children born under these arrangements. Barring one case of an Australian couple who refused to take a child born with genetic abnormalities, this arrangement has worked fine so far.
A blanket ban on foreigners proposed by the bill is perplexing, particularly for a country that is officially promoting medical tourism. If the concern is exploitation, then that exploitation will hold equally true for Indian citizens: Commissioning couples will always be those who can afford to buy surrogacy services, legal protection and the best medical care, regardless of their nationality. Surrogates will always be women in more vulnerable positions, protected only by watertight contracts. If the objection to foreigners is a thinly disguised effort to deny gay couples rights available to straight couples, then it is a reprehensible step and must be removed.
The traditional feminist argument opposes commercial surrogacy because it treats the bodies of women as commodities. This is true and, like commercial sex work, there is nothing remotely palatable about the commodification of women’s bodies. But what about the agency of women who choose to sell their bodies? What about those who enter into contracts with informed consent? A ban denies these women the right to autonomous choice.
The proposed ban on commercial surrogacy also endows the government with a paternalistic role at a time when too many governments already exercise too much control on the bodies of women. In China, the government has just scrapped its one-child policy. In the US, pro-life politicians still dominate far too much of the narrative. And in India, it’s not government so much as patriarchal family pressures that come to bear on women’s choice to have children (boys, preferably) and to be breeders for the family name.
The government told the Supreme Court this past week that it will permit ‘altruistic’ surrogacy. How will it determine that altruistic surrogates are not, in fact, receiving compensation—as surely they must in lieu of lost pay, medical costs, additional nutritional requirements and so on? Monitoring surrogacies to determine whether they are altruistic or commercial will create a new filter of officialdom, more red tape and more opportunities for corruption to the new gatekeepers of women’s fertility.
Banning commercial surrogacy in favour of ‘altruistic’ surrogacy could also result in family pressure on poor female relatives to step up. It will certainly push surrogacy underground, leaving poor women even more vulnerable to exploitation, bereft of any legal recognition, let alone protection.
Doctors in the field of fertility say surrogacy represents only a minuscule part of their total practice. Yet, it is the one that gets the most press. If you read the ART bill in its entirety, minus the sensationalism of surrogacy, then there are other features that are of concern. The bill gives powers to authorities to visit fertility clinics without advance notice and demand access to hospital records, including confidential information about couples seeking treatment. A genuine error can result in the clinic being sealed and the doctor being sent to jail. Clinics will be held responsible for complications, even if they have nothing to do with the fertility treatment.
“The purpose (of the ART bill) should have been to avoid malpractice and third-party exploitation,” says Mumbai-based ART consultant Dr. Parikshit Tank. “Instead, you have a bill that verges on being intrusive.”
From no law to a bill that plays big brother, maybe it’s time to go back to another old-fashioned concept. It’s called adoption.
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First Published:2 Nov 2015, 12:36 AM IST
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