Ban on commercial surrogacy: Notions of ‘choice’, ‘altruism’ need to be questioned

A wider discussion is called for on how to avoid the pitfalls of criminalising the economically and socially vulnerable surrogate.

Written by Kavita Krishnan | Updated: November 2, 2015 9:58:08 am
baby2 Yes, sex selection is the ‘dirty secret’ of commercial surrogacy.

The Union government has reportedly taken a position to ban commercial surrogacy completely and allow only surrogacy for ‘altruistic’ purposes for married Indian couples.

This marks a shift in the official position. For a long time now, governments at the Centre and States have encouraged and helped create a flourishing commercial surrogacy market in India. The Gujarat government under Modi has boasted of commercial surrogacy as part of its successful ‘development’ model.

All the while, it was an open secret that this global industry relied on the poverty and social subordination of Indian women. The supposedly huge payments were ‘generous’ only if one took the extreme poverty of women as a given, plus women had little bargaining power and next to no way to protest if they were not paid the promised amount. If they suffered medical complications and risks during the pregnancy, and demanded higher payment, this would be denied.

The notions of supposed ‘choice’, and ‘altruism’ of the women also need to be strongly questioned. Because women are hemmed in amidst an array of bad, devil-and-deep-sea ‘choices’ by a political economy, both global and domestic, of liberalisation policies, debt-traps, declining wages, poorly paid domestic work and other forms of ill-paid exploitative work available to women. The same political economy also promotes and nourishes both sex selective abortion and commercial surrogacy.

Yes, sex selection is the ‘dirty secret’ of commercial surrogacy. It’s meaningless to claim to ban sex selection but allow commercial surrogacy, because the latter is used as a means to facilitate sex selection (‘fetal reduction’ is the term, with the fetus that is discarded usually being female).

Going by media reports, the government is planning to bring in a law banning commercial surrogacy entirely. If this is so, it’s a step in the right direction. But the talk of allowing ‘altruistic’ surrogacy for ‘married Indian couples’ is dishonest, and an invitation to commercial surrogacy by the back door.

What will guarantee ‘altruism’? The government record of disciplining the medical industry in matters of sex selection is abysmal, as it is in the matter of sale of ova.

Gross medical misconduct and a brisk illegal industry in both sex selection’ and sale of ova continues with a feigned ‘helplessness’ on part of the government, police and administration. So, leaving open the ‘altruism’ door and claims of ‘regulating’ surrogacy to make sure no financial transactions or sex selection is involved, are highly suspect. And the restriction to ‘married couples’, too, makes one wonder if this provision is meant to cater to sex selecting Indian couples?

‘What if the women choose to be commercial surrogates’ is a question often asked. Women’s control over their own reproduction and wombs – and children they give birth to – simply can’t be assumed as a given. Families control women’s sexuality and reproduction; in particular, the marital family claims ‘ownership’ and control over a married woman’s womb, deciding the sex of babies that are born. And with the aggressive and paranoiac ‘population control’ measures including mass, often forced, sterilisation – that claim the lives of 15 Indian women every month – the Indian State as well as global ‘aid’ agencies also attempt to control and regulate women’s wombs. To assume, just for the purpose of surrogacy, that women have a ‘choice’, is misleading.

Let me make this clearer with an experience of our organisation, where we intervened in support of an adivasi woman whose husband and mother-in-law in collusion with doctors had subjected her to forced ovum sale and surrogacy. To quote a report our magazine carried in January 2014, “The case of Sakunthala, a 27-year-old adivasi woman in Salem district of Tamil Nadu, highlights how difficult it is to speak of ‘choice’ in matters like surrogate motherhood, ovum sale, and so on, in patriarchal society and in a rampantly commercialized context.

Sakunthala and her friend, CPI(ML) activist Selvi, were attacked with a knife by Sakunthala’s husband Navaraj at Komarapalayam in Salem (a centre for illegal organ racket). Shakunthala told the police in her statement that she was forced by Navaraj to donate her kidney in 2006 in a Coimbatore hospital, for which he got Rs 1 lakh. He also forced her to be a surrogate mother. And he and her mother-in-law forced her to donate her fertile eggs 18 times in various hospitals in Tamil Nadu and Kerala. The money earned wasn’t saved in Shakunthala’s or her daughter’s name.” And when Shakunthala took refuge in her friend and activist Selvi’s home, her husband attacked them both with a sharp object, grievously injuring them.

This episode brings home how domestic and dowry related violence against women as well as sex selection mark the field in which surrogacy – commercial or ‘altruistic’, takes place. The marital family sees a bride as a resource for dowry extraction and reproduction of sons, and claims ownership and control over this resource. Even if commercial surrogacy were officially banned and only ‘altruistic’ surrogacy allowed, it is more than likely that the ‘married Indian couples’ will be able to demand ‘altruistic’ surrogacy from women within the family, not only as a fix for infertility but as a means of sex selection.

There is much hand wringing in the liberal media over the pain and emotional trauma of infertility. ‘Let one woman be able to help another bear a biological child’ is the slogan of the medical surrogacy industry, articulated through the liberal media.

The vexed question here, that remains unspoken, is – to whom does a child ‘belong’? When a woman’s ova are sold, then does the baby born with her genetic material, hers? No, then the logic is that the baby belongs to the mother who bore the child in her womb. But when the genetic material belongs to the commissioning parents, it’s claimed that the baby does not belong to the mother who bears it in her womb, but to the ones whose genetic material is used! It’s simple – every time it’s the commissioning parents, the ones who bought the ova or the surrogate’s services who ‘own’ the baby! The question then must be faced – ova sale or surrogacy don’t solve the ‘infertility problem’ or the need to have one’s ‘own child’ since the child born actually belongs to the mother who does the risk-ridden reproductive labour of bearing the baby in her womb. The Indian government has reportedly admitted as much – they have assured the Court that the baby will belong to the surrogate, but that a surrogate can legally, ‘altruistically’, hand over the baby to a married Indian couple who will henceforth be its legal guardians. But, if this is the case, if we’re admitting that the babies belong to surrogates, then why isn’t adoption a solution for infertile married/unmarried couples, or for that matter gay couples or single parents? Why do we at all need surrogacy, ova sale and the like? The baby you want from a surrogate isn’t any more ethically ‘your own’ than an adopted baby, so why not just adopt? Why the obsession that the privileged and propertied have (surrogacy isn’t an option for the infertile poor after all), with bearing a child that is ‘their own’ in terms of genes or caste or race?

Alienation and commercialisation reach their dystopic extreme when a woman’s body is raided repeatedly for reproductive materials (eggs) and her womb is treated as a baby-factory, and she is told she has no rights to the babies born of her reproductive resources or labour.

A wider discussion is called for on how to avoid the pitfalls of criminalising the economically and socially vulnerable surrogate, but cracking down hard on the flourishing medical industry in sex selection, ovum sale and commercial surrogacy. Undoing the existing surrogacy industry in India won’t be easy – much more public discussion is needed to focus on this issue, so that we don’t just ban formally and push the industry further underground. Governments are notoriously soft on the medical industry that profits from sex selection and commercial surrogacy.

The question of surrogacy is not an abstract philosophical, scientific or ethical one. It has to be situated in the concrete social and economic matrix, specifically Indian women’s social subordination and economic deprivation, which patriarchies led by families as well as the Indian State and global market have a stake in maintaining and reproducing.

Kavita Krishnan is Secretary, All India Progressive Women’s Association and Politburo member, CPIML Liberation. Views expressed are personal.

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