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An infantile idea

Banning foreign clients will not stop the exploitation of the surrogates.

Written by Amrita Pande |
August 16, 2013 12:01:58 am

Banning foreign clients will not stop the exploitation of the surrogates.

The latest addition to the surrogacy saga is the controversial recommendation by the directorate general of health services (DGHS) that the option of surrogacy be restricted to married,infertile couples of Indian origin. In essence,the DGHS proposal,if implemented,would ban foreigners,homosexuals and people in live-in relationships from having a baby borne out of surrogacy.

Before we dismiss these proposals as “draconian and archaic” or hail them as a pioneering attempt by a state to protect its citizens,let’s speculate a little about the government’s reasons for proposing such changes. The no-brainer answer: to avoid more international legal battles. The politically correct version: to better protect the right of the child and ensure that only people in stable relationships and from countries that agree to give the child citizenship are allowed to have babies through surrogacy. But the suggested changes reek suspiciously of a misplaced sense of morality. The assumption seems to be that only people in a heterosexual married relationship can be trusted to raise a child and only people of “Indian” origin can be trusted to raise “our” children. Not surprisingly,the people criticising these proposals pull out their liberal “right to parenthood” card — everyone should have the right to have a child of their own. I suspect that both camps are failing to prioritise a vital part of the story: the rights of the surrogates.

A debate about the proposed changes to clauses in the Assisted Reproductive Technology (ART) Regulation Bill should not take attention away from the ongoing debate about the existing clauses in the ART Bill. Feminist and health activists have criticised the bill for exactly the reasons I suggest above: it is totally inadequate in addressing the concerns of surrogates as workers,or in protecting their health and well-being. But for a minute,let’s assume that the ban on foreign clientele is to protect the rights of surrogates. Perhaps the government believes that opening up our borders to foreign clients increases the exploitation of Indian womb-workers? This is where we encounter the fundamental problem of top-down policies that attempt to regulate an industry without proper consultation with the workers themselves. Does the exploitative component of surrogacy in India emerge primarily from its transnational dimension? The workers in this industry — the surrogates — are likely to argue otherwise. Transnational clients pay more than Indian clients and often give extra gifts in kind. Moreover,banning transnational surrogacy in India will likely push this industry underground,eroding the rights of the surrogates.

Instead of a top-down regulatory bill that fails to consider the rights of the workers,perhaps the government should think about pioneering “fair trade surrogacy” regulations,that is,applying fair trade principles to international surrogacy in order to ensure that the benefits of surrogacy are most beneficial to those who are the “weakest in the supply chain” — the surrogates. If we are to truly aspire for fair trade surrogacy we have to realise that the unfairness of this trade stems from the lack of openness and transparency at each step of the surrogacy process,whether it is about the medical process and its effects on the surrogates’ bodies,minds and health,about payments made to the different actors involved in surrogacy and the inability of the surrogates to negotiate the amount paid to them. Moreover,instead of an “open” model for surrogacy (as in open adoptions),where clients and children are allowed to sustain a relationship,we usually see a closed model,which emphasises privacy. Relationships are cut short and the surrogates become faceless,disposable women in a supply chain for babies.

The reality is that surrogacy cannot be resolved as a national issue or by closing borders. A global issue like surrogacy requires a dialogue between nations. A formal international agreement (like the Hague Adoption Convention that establishes international standards of practice for inter-country adoptions) governing inter-country surrogacy might be one way forward. It is time for the Indian government to get real about resolving the exploitative potential of this industry — and this cannot be done without truly listening to the concerns of the women involved in it.

The writer teaches at the department of sociology,University of Cape Town,South Africa. She is currently writing a book based on her ethnographic study of surrogacy clinics in India

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