The recently proposed ban on commercial cross-border surrogacy will allow only altruistic surrogacy for “needy infertile married Indian couples”. Given the government’s previous attempts, in 2012 and 2013, to restrict commercial surrogacy to married couples of Indian origin, the ban is not a shocker. But the call to ban commercial surrogacy per se and allow only its altruistic variant is more surprising. This call is probably based on moral abstractions about the ethics of monetising acts assumed to be based on love (child-bearing and -rearing). The reality is that these acts have been commodified historically and cross-culturally, whether in the form of informal surrogacy arrangements, wet nurses or nannies. At the same time, allowing only non-commercial surrogacy is unlikely to resolve any of the existing problems of this industry. Altruism is a gendered notion — it reinforces the stereotype of women as “naturally” nurturant and selfless. In essence, altruistic surrogacy forces women to provide services for free, under the guise of a moral celebration of their altruism.
I have argued against an imposition of a formal ban for two connected reasons — the effect of such a ban on the most vulnerable in the supply chain (the surrogates), and the naivety of trying to resolve a global problem through restrictive national legislation. The demand for genetic children is unlikely to diminish, and poverty in India is unlikely to disappear anytime soon. Women, often responsible for putting food on the table at the end of the day, will continue to choose from the limited range of alternative economic opportunities available to them. The proposed ban will just push the whole industry underground, and reduce the rights of surrogates even more by pushing them to “illegal” activities, unregistered clinics and possibly unhygienic conditions. Such a ban is also as likely to shift the industry to another developing country. For instance, the 2013 stipulations restricting surrogacy in India to married heterosexual couples effectively pushed all cases of “gay surrogacy” to Thailand. After a spate of international surrogacy scandals, Thailand banned cross-border surrogacy in 2014, pushing surrogacy to another neighbouring country, Nepal. The industry in Nepal flourished unnoticed before the earthquake brought media attention to the “scandal” of gay Israeli men supposedly abandoning the surrogates after the earthquake. But what no one discussed was this: Most Indian surrogates in Nepal reported feeling abandoned not by their Israeli clients, but by the Indian government. The ban had pushed them to make a living in Kathmandu instead of Delhi, Anand or Mumbai. Their status in Nepal was paralegal and most did not have the money to purchase a ticket home. Indian authorities would not sign release papers for a child commissioned by gay parents. So what would happen to the child they were gestating, their contract and payment, even if they managed to return home? The Indian state banning their labour option is what made the Indian women more vulnerable, not the fact that their clients were international, or gay.
These events highlight the ineffectiveness of restrictive national laws. A global and complex issue like surrogacy cannot be resolved within national borders. It urgently needs a global dialogue and a consultative resolution. Much like cross-border adoptions have been regulated internationally, cross-border surrogacy needs similar standards that all signatory countries adhere to.
A global dialogue needs to be based on a ground-up local, consultative process. Instead of demonising international and unmarried clients, the need is to focus explicitly on the rights of surrogates. If the government is serious about protecting the rights of surrogates, it needs to start by recognising that these women are workers. For many surrogates, “positive change” implies not just an increase in the payments they receive, but an affirmation of their dignity as labourers. For any policy to address the fundamental problems of this industry, two things are critical: To stop viewing surrogacy as morally reprehensible and two, to view the surrogates as workers, and not as national (natural) resources or voiceless bodies being exploited by foreigners. It might be time to start consulting these women workers and allow them to participate in dialogues with third parties that seem to want to save them from their own choices.