Abstract
This concluding article, building from observations of the industry from 2008 onwards, examines the practices of commercial and altruistic surrogacy in India. Commercial surrogacy is built on atomized market relationships, where exchanges are mediated by money. The author shows how exploitation is at the heart of production in commercial surrogacy. Altruistic surrogacy is built on gift-like giving between social actors engaged in ongoing exchange relationships. While these sorts of exchanges might seem egalitarian, the author argues that domination is at the heart of exchange in altruistic surrogacy. The article concludes that banning all forms of surrogacy is not the answer, and provides policy recommendations that do not eradicate, but ameliorate exploitation and domination.
Introduction
No one could have predicted that commercial surrogacy, conceived, born, and thriving in the United States, would move to India and Thailand by the early 2000s. And, given how commercial surrogacy was flourishing in the tropical Asian milieu with international clientele, weak regulatory mechanisms, highly skilled medical labor, and economically eviscerated communities, no one could have predicted that India and Thailand would shut down, and the industry would move to Russia, Ukraine, and the Republic of Georgia in less than 15 years.
From when it was first commercialized in the mid-1980s in the US to how it is practiced today, surrogacy has globalized into diverse nation-state contexts, and deepened within the social milieu of communities, families, and individuals as evinced by the various articles in this monograph issue of Current Sociology. My colleagues have so far described surrogacy as an emergent labor practice for wages (Bandelli, and Yanagihara); the non-wage work mothers do in gestational surrogacy (Jacobson); surrogacy as disempowerment, and the remedial gestures toward recognizing the multiplicities inherent in motherhood to reclaim gestation from commodification (Corradi); and the many perceptions, beliefs, and anxieties that emerge because surrogacy commodifies reproductive labor (Sarkar, Camorrino, and Rodríguez-Jaume, González-Río, and Jareño-Ruiz). The articles variously examine how surrogate mothers make sense of their mothering responsibilities (Jacobson); the ways communities conceive of surrogacy and the anxieties wrought by these new forms of markets in life (Sarkar, Camorrino, and Rodríguez-Jaume et al.); and the responses of politics in policy (Yanagihara) and social movements (Corradi).
I do something different from the tenor set in the preceding articles. Having researched and written about surrogacy in India since 2008, and having observed the industry through ongoing friendships with surrogate mothers and individuals who facilitate intended parents’ cross-border reproductive travel, I express skepticism in all forms of surrogacy. Rather than endorsing surrogacy bans, I suggest that radical transformations in the possessive investment in children within nuclear families provide the possibilities for just reproduction.
The article unfolds in the following manner. First, I explain why I am skeptical of legal bans on commercial surrogacy. My skepticism about bans is not grounded in arguments about reproductive choice, which invariably draw individuals onto opposing sides, with each asserting the primacy of their rights over others, and the wrongs (in this case, of queer individuals or those living with infertility) that can only be righted through the abrogation of the rights of others (that of surrogate mothers). And, my apprehensions about surrogacy bans are most certainly not about restrictions on individual agency. That is, I do not privilege women’s autonomy to make decisions on how to dispense with their reproductive labor either within the patriarchal confines of the nuclear family and kinship networks, or the patriarchal expanses of the market economy. Instead, I explain that I find that surrogacy bans are insufficient to decrease women’s exploitation because bans in one country simply lead international surrogacy networks to find fertile grounds in other, more welcoming countries. Moreover, I argue that India’s replacement of commercial surrogacy with altruistic surrogacy deregulates the infertility industry. I then disaggregate the meaning of commodity exchange versus gift exchange. Commercial surrogacy perpetuates exploitation, as has been argued repeatedly. But altruistic surrogacy with its gift exchanges in reproductive labor and babies is not innocent of power dynamics either. Even without the property-like relations inherent in commodification, gift exchanges can endorse domination.
In conclusion, I note that altruistic surrogacy should not be seen as a panacea, and an ideal replacement for commercial surrogacy because it too is a problematic exchange. Rather than endorsing a ban on all forms of surrogacy, because such legislations simply drive the practices underground, and deepen women’s vulnerability to medical violence and economic exploitation, I believe that the utopic task of reproductive justice is to question, and reformulate the possessive investment in nuclear families that underwrite both markets and kinship networks, both sites of women’s disempowerment.
Surrogacy bans meant to deliver justice can deepen women’s exploitation
Inaugurated as a commercial practice in the mid-1970s in American upper middle class homes, legal offices, and medical clinics, surrogacy grew into a profitable business very rapidly. 1 Surrogacy’s development into a full-fledged reproductive industrial complex in the US was greatly facilitated by for-profit medical businesses that catered to the pronatalist proclivities of some upper middle class (mostly white) families. But even for upper middle class families, the expenses of infertility assistance spiraled out of control as they went down the rabbit hole of assisted reproductive technologies, which might begin with less expensive hormonal therapies to deeper medical interventions, from IUIs to IVFs, and finally into surrogacy. To cater to these families there were a plethora of financial instruments such as second mortgages on homes, and the emergence of boutique lending firms such as CapexMD and Prosper Healthcare Lending 2 that made loans available to cash-strapped clients. Thus, within 20 years of the writing of those first surrogacy contracts in the 1970s and 1980s, American repro-scapes (Inhorn and Srivastav, 2010: 69) were well established; reproductive imaginaries, financial arrangements, and technological expertise all came together on an uneven terrain, where some class- and race-privileged individuals and communities had greater access to reproductive services than others.
It may seem obvious in hindsight, but the uneven patchwork of surrogacy-related legislation across the US did not hinder commercial surrogacy from flourishing. If the US states of Louisiana and Michigan forbade surrogacy contracts, there were other states such as Colorado and Georgia with no legal prescriptions on surrogacy and which were somewhat surrogacy friendly, and even better, there were still others such as Arkansas and California that had surrogacy friendly laws (Markens, 2007). Baby-seeking American and international individuals and couples could pursue fertility packages offered by boutique infertility firms that spanned multiple US states, utilizing the patchwork of legal restrictions and comparative advantages to optimize services for their clients.
In her descriptions of what she calls ‘disruptive commercial surrogacy,’ anthropologist Andrea Whittaker (2018) says that the model of surrogacy that emerged in India and spread to other Asian countries was distinctive because it developed in countries with few formal regulations, offered options that were banned or regulated in other parts of the world, cost less than in developed countries, and endorsed medical practices that maximized client convenience. Moreover, the supply chain segmentation in human gametes, gestation, and medical services innovated in Asia was highly responsive to consumer demands (2018: 27). Yet, upon closer examination, these are all market innovations that were inaugurated, and perfected, on American soil since the early 1980s, until lower labor costs for medical expertise and for surrogate mothers, and lower pharmaceutical prices led to the expansion of networks from the US to India and Thailand. Commercial surrogacy has almost always been disruptive right from the 1987 notorious case of Baby M in the US, raising questions on fragmented motherhood, the disempowerment of women because of gestational labor, deepening medical technologies in reproductive matters, the emergence of markets in human ova and sperm, and the systematic recruitment of surrogate mothers who maintain they engage in such labor out of maternal love, and not economic need (Jacobson, 2016). The only disruption to surrogacy as usual was that Asia, particularly India, provided lowered labor costs associated with gestation that had already been fragmented, commodified, and disciplined as contractual work in the US.
When I first began research in 2008, six years after India had begun permitting commercial surrogacy, I had naively not imagined that this particular global reproductive industry, built on value-added commodity chains in sex cells and assembly-line like production of babies would become a multi-million dollar industry by the time I published my book, Discounted Life: The Price of Global Surrogacy in India (2015). With no laws governing commodified reproductive exchanges, commercial surrogacy in India had flourished between 2002 and 2015. 3 When the government restricted queer and single individuals from traveling to India for the purposes of surrogacy from 2012 onwards, they did not turn to legislation, but the State Department simply stopped issuing medical travel visas to concerned individuals. And when the central Indian government began toying with banning surrogacy for all, it again did not turn to legislation. Instead, a state directive was issued in late 2015 wherein Indian infertility hospitals were henceforth restricted to providing commercial surrogacy only to Indian (heterosexual) married couples (Rudrappa, 2018).
This new development left observers from all over the political spectrum astonished: no one had ever imagined that the highly profitable surrogacy industry in India was politically vulnerable. 4 The slow squeezing initiated by the right-wing Bharatiya Janata Party in 2012 with restrictions against LGBTQ cross-border reproductive travelers would lead, by 2018, to the ban on commercial surrogacy. The most recent Surrogacy (Regulation) Bill was introduced in 2016, and after debate, passed in the Lower House in 2019. Currently this bill is waiting at the Upper House of the Indian parliament, and upon presidential affirmation will become an Act, and subsequently, law (Timms, 2018). This conversion of commercial surrogacy to altruistic surrogacy is the closest India has come to successfully legislating commercial surrogacy.
What I have observed is that the networks of small transnational firms in the Global North, and the network of infertility specialists operating in India are incredibly agile. With the gay surrogacy ban in 2012 they briefly shifted their operations to neighboring Nepal, but that too came to a screeching halt when Nepal banned surrogacy after the earthquake in 2015 (Rudrappa, 2018). Then, India instituted its own ban in 2016. South Asia was no longer a viable destination for repro-travelers. Thailand too shut down surrogacy in 2015 after two highly publicized scandals where a Japanese man commissioned the birth of 15 children with multiple surrogate mothers, and the ‘Baby Gammy’ case involving a couple who abandoned the twin born with Down’s syndrome, but took the healthy twin back home with them to Australia (Whittaker, 2016). Surrogacy moved briefly from Thailand to neighboring Cambodia, until it was banned there too (Whittaker, 2018).
The banning of inexpensive Asian surrogacy, however, simply meant that it moved elsewhere. Let me explain how surrogacy moves from one country to another so easily. The legalization of surrogacy in the US, and then in India and Thailand for over a decade has facilitated the development and solidification of global networks that enable repro-travels. My observation is that once commercial surrogacy networks are established, regulatory checks and balances become mere suggestions for agents intent on making profits. Thus, when surrogacy bans in one country are instituted, these networks are not dismantled; instead, they turn their focus to less hostile territories, making effective use of the differential patchwork of legislations and regulations across nations, much like what surrogacy agencies have done within the US since the 1980s. The relatively small network of actors operating in India and Thailand, comprising proprietors of agencies that recruited intended parents, and medical business conglomerates scattered across the US, Australia, and Europe quickly restructured their business plans, and reached over to medical personnel across Russia, Ukraine, and the Republic of Georgia to start up once again the cycle of international clientele but now contracting with Russian, Ukrainian, and Georgian women as surrogate mothers. Thus, a few global actors and firms facilitate the rapid movement of the industry across a patchwork of nations, quickly making contacts with local medical personnel and moving clients into these new locations.
Efficient networking is also provided by not-for-profit organizations that are market nodes which, through regular workshops, bring in parents with surrogated babies, potential intended parents, surrogate mothers who talk about their experiences, law firms, gamete banks, infertility clinics, and even insurance brokerage firms that cater to couples undergoing assisted reproduction. An example is Men Having Babies Inc., a New York not-for-profit corporation in existence since 2012 that describes itself as a ‘leader in providing education and financial assistance for men choosing to start their families through gestational surrogacy. The organization . . . annually provides dozens of couples with over a million dollars’ worth of cash grants, discounts and free services from over fifty leading service providers.’ 5 Men Having Babies holds workshops in major cities around the world, including Taipei, Brussels, and Tel Aviv. Infertility businesses sponsor their events in these global cities, which facilitate the nurturing of networks among intended parents, and firms working with intended parents. Men Having Babies also provides lists of firms that subsidize surrogacy costs. 6 Another such example is Surrogacy Australia, which is incorporated as a charitable organization. 7
Networks built around surrogacy in countries such as the US and Australia, then, are not terminated when India or Thailand ban surrogacy. Instead, they facilitate the movement of the surrogacy industry from one banned country into other countries that provide more fertile grounds. The surrogacy ban in India, then, did not halt the practice, but exported the problem.
Still, some commentators maintain that at the very least Indian working class women are protected by the surrogacy ban (Timms, 2018). They note that concealed under the reproductive rights rubric that commercial surrogacy is an ideal market instrument for repairing the rights of those suffering infertility and those who are queer, infertility clinics, brokerage firms for intended parents, agencies that recruited surrogacy mothers, and subsidiary services such as sex cell banks made substantial profits. Some firms and medical personnel even cast themselves as social entrepreneurs bringing good to the world at large by making children possible for First World families that lacked them, and money possible for Third World families that were short on funds to raise children properly (Rudrappa and Collins, 2015). The unvarnished truth, however, was that surrogate mothers recruited from precarious households across India (Deomampo, 2016; Majumdar, 2017; Pande, 2014) may have enjoyed some liquid cash flow, but these funds quickly dried up under the onslaught of relentless neoliberal policies that have over the years made food, schooling, safe housing, and access to health care more restricted and more expensive, and everyday life barely tenable (Rudrappa, 2015). Moreover, the medical practices extant in India’s ‘reproductive assembly lines’ (Rudrappa, 2012) have brutalized surrogate mothers. Serial hyper-ovulation of women, unwarranted invasive medical interventions, caesarian surgeries, preterm deliveries, and lack of postnatal care for surrogate mothers (unless they paid for such care) were widespread in surrogacy clinics.
Commercial surrogacy bans, then, could be cast as beneficial because, supposedly, these sorts of brutalizing practices are halted. But yet. But yet it is critical to keep in mind that India’s 2016 Bill still permits altruistic surrogacy for Indian citizens. Thus, while globalized commercial surrogacy in India has halted, this shift to altruism effectively deregulates the practice of surrogacy because presumably, now, there are no commercial exchanges that require regulation (Rudrappa, 2018). Altruism can be operationalized to mean that surrogate mothers will receive no monetary compensation for their gestational labor, and often, they only receive the intended parents’ ‘good-will.’ While one could idealistically imagine altruism as something that happens between social equals, where a woman selflessly gestates, and gives that infant up as a gift to the childless, nothing could be further from the truth. There are exceptions, but many relationships between surrogate mothers and intended parents are hierarchical, with working class women providing highly subsidized gestational labor for the wealthy. The exchanges invoked in altruistic surrogacy are a myth built on the notion that it is a gift-like exchange among equals. The myth of altruistic surrogacy, like all myths, is a socially useful lie. Myths are generated by a few facts which get reinterpreted into events that are not verifiably true but have real social effects. The endurance of the myth of gendered selfless exchanges in altruistic surrogacy ‘derives from [its] claims to unquestionable authority’ by emptying reality of history, and masking ‘political situations with narratives of human essence and naturalized tautologies’ (Wright, 2006: 3).
Labor and exploitation
One way by which to make surrogacy more fair, an argument I have endorsed previously, is to respect it as a form of labor, and incorporate gestational labor as a commodity. Such an argument is not new as evinced by Amrita Pande’s concept of ‘mother worker’ (2014), and my own work on markets in life (Rudrappa, 2015). Such incorporation would need to be accompanied with protecting the rights of surrogate mothers through better wages, insurance schemes, and greater control over working conditions (Rudrappa, 2015; SAMA, 2012). But having observed the industry for so many years, I have come to realize that commodification does not guarantee reproductive justice. In the following sections I examine exchanges in contracts to question whether labor can be truly respected under commodity regimes.
Surrogacy as labor
Noel Keane, the US Michigan lawyer who wrote the very first surrogacy contract in 1978, admits that the payment of money for gestation was new and untested in the US, which is why such contracts needed to be carefully crafted in order to accomplish six major tasks. First, the contract had to establish ‘the paternity of the natural father’ (1983: 45). Second, it must ‘terminate the parental rights and responsibilities of the surrogate mother who has deliberately undertaken a pregnancy without the desire to become a mother in any sense beyond the physical’ (1983: 45). Third, he notes, the father’s rights to the surrogated child derive from his biological relationship, but the contract is the mechanism by which the ‘natural father’s wife’ (who in common parlance today is the ‘intended mother’) establishes a legal relationship to the surrogated child. Fourth, and the most difficult legal problem in Keane’s perspective, is that the contract must fix the compensation the surrogate mother receives in exchange for her expenses and services. Fifth, through the contract the surrogate mother relinquishes control over her body and her conduct. Keane notes that because she ‘carries a child who will be raised by another family, . . . she agrees to let them make some of the decisions which would normally be hers’ (1983: 45–46). And sixth, the contract allocates burdens to the various parties involved if the ‘child suffers from birth defects, if the surrogate is injured, or if the adopting couple die or divorce’ (1983: 46).
Four gendered aspects to Noel Keane’s surrogacy contracts must be noted. The women’s parental rights are questionable, and can only be determined through legal annulation in the case of the surrogate mother, or legal mandate in the case of the intended mother. On the other hand, the father has ‘natural rights’ to the child. Because he is the biological progenitor, his rights are established a priori. The implication is that paternal rights are independent of the laws of government because they are fundamental and inalienable. Third, monetary compensation provokes all sorts of social anxieties about the worth of feminine gestational labor: what are the moral implications of setting a price on priceless work? And lastly, Keane maintains that the surrogate mother must cede some control over her body and decisions to the intended parents.
The question of choice, raised in the last two aspects to commercial surrogacy, are worth examining more closely: supporters of surrogacy hold onto the sanctity of choice and maintain that it is up to the individual woman to sell her gestational labor. Anyone who protests surrogacy is cast as a meddlesome outsider who has no business telling a woman how to use her body. Calling ethicists ‘Chicken Little,’ Noel Keane maintains the inviolability of choice in surrogacy: The right of individual choice in matters of procreation is so highly regarded as to mandate constitutional protection under the right of privacy. It is particularly repugnant when a self-appointed Chicken Little cries out to prohibit the exercise of that right in order to protect the surrogate from herself. (Keane, 1989: 489)
Yet, Keane and other proponents of choice, who castigate ethicists as bad actors because they want to deny women the choice to become surrogate mothers, remain silent on the control the intended parents exercise over the surrogate mother’s body. That is, intended parents can disregard surrogate mothers’ choices, once they are pregnant. For commercial surrogacy proponents, why are some kinds of control over women’s bodies not valid, yet, and other kinds of control justifiable? The rubric of choice appears before the contract is signed (she has the choice to sell her gestational labor), and then curiously disappears during the contractual period (her choice in conduct during pregnancy is ceded to the intended parents).
These early surrogacy contracts written in the US from the 1980s onwards established commercial surrogacy and laid the groundwork for how it would be practiced around the world, but especially in India and Thailand: selling gestational efforts was a woman’s choice, but her choice took the back seat to intended parents’ decisions over her body once that contract was signed. By deciding to be a surrogate mother she had acquiesced to becoming just a vessel, suspending her rights to having autonomy over her own body. Surrogacy means she consents to being treated as res extensa or mechanical, inert material, rather than as an embodied, thinking person or res cogitans. Such objectification to commercial surrogacy supporters is not problematic because a surrogate mother chooses to abolish her own rights.
Markets degrade gestational labor
Opponents of commercial surrogacy in India argue that commercialization leads to setting prices on gestation, which is a priceless, invaluable social good. Such pricing, then, devalues not only gestational labor, but by extension, it devalues women. Indeed, the commercial surrogacy ban in India was set in motion on exactly these qualms when the Indian Supreme Court directed the central government to ascertain whether commercial surrogacy amounted to exploitation, and because of that, whether the practice was an affront to the dignity of womanhood (Rudrappa, 2018). The misgivings expressed in converting gestation into wage labor could potentially be read as the following: all wage labor is degrading, and by extension the laborers themselves are degraded. Thus the conversion of gestation into wage labor degrades pregnancy itself, and by extension, surrogate mothers are degraded.
Yet, this is not what objectors to commercial surrogacy are saying. If that were the case, then they would declare that all forms of wage labor are degrading. Market-driven relationships are such that the buyer of labor power has authority over the seller of labor power, which allows the former to set the conditions of work. The buyer decides what to produce, how much to produce, and the conditions of production; the seller of labor power has no choice but to comply to the conditions of work set by the person who purchased her labor power. As Marx so beautifully explains, under these conditions, the worker is alienated from her own labor power; alienated from the product she produces; she is alienated from herself; and, finally, she is alienated from the communities around her.
The objections persons have to commercial surrogacy do not extend to the selling of all other kinds of labor power, or even specifically, reproductive labor. Teachers, maids who clean homes, wash clothes, and cook, nannies, and eldercare workers are all deemed conventional workers; that is, it is perfectly acceptable to commodify these forms of reproductive labor. But somehow, gestational labor must remain sacrosanct. Women’s gestation must be recuperated into the nuclear family, kin groups, caste specific, and religious communities where exchanges must be outside commodity exchange, and organized by different sets of rules.
Gift-giving and domination
Unlike commodity exchange, which is mediated by strangers exchanging money for goods on abstract markets, gift exchange is driven by ongoing exchanges of goods, favors, services, and work between individuals. As Mary Douglas says, ‘[t]here are no free gifts; gift cycles engage persons in permanent commitments,’ and this cycling gift system constitutes family and community (1992: 157). Moreover, gifts are not neutral objects. Marcel Mauss notes: ‘the thing received is not inactive. Even when it has been abandoned by the giver, it still possesses something of him. Through it the giver has a hold over the beneficiary’ (1990: 15) and this hold obligates the receiver to reciprocate. The receiver is obligate to return the favor ‘because [she] is compelled to do so, because the recipient possesses some kind of right of property over anything that belongs to the donor. This ownership is expressed and conceived of as a spiritual bond’ (1990: 17).
In commodity exchanges, accumulation of money and wealth matters; but in gift exchanges the accumulation of honor matters. Thus, it is an honor to receive gifts, but also, there is an ‘absolute obligation to reciprocate these gifts under pain of losing’ that honor and authority (Mauss, 1990: 11). Gifts enhance solidarity because they bind people together; one cannot reject a gift, but has an obligation to receive gifts. And one is obligated to give gifts. A rebuttal of a gift, or a failure to give one in return is seen as a rejection of that social relationship. Mauss writes: ‘[t]o refuse to give, to fail to invite, just as to refuse to accept, is tantamount to declaring war; it is to reject the bond of alliance and commonality’ (1990: 17).
Altruistic surrogacy is often described as a kind of gift-giving exchange in reproductive services. This description presumes the following: there is an ongoing relationship between the giver and the receiver of gifts; because the surrogate mother gives the intended parents the most precious gift of all, a child, she holds great honor and authority over them; but simultaneously, the altruism assumption in surrogacy assumes that givers and receivers are socially equal. Not all of these three conditions are met, at least in most altruistic surrogacy cases in India.
Hierarchies in gift-giving relationships
The instant a gift is given, and recognized as such, reciprocity is established; an exchange, or the conditions for exchange emerge. The gift giver, notes anthropologist Soumhya Venkatesan, has satisfaction or pride in giving; and ‘the recipient recognizes the gift and feels obliged to make a return, thereby transforming the gift into a debt’ (2011: 51). Gifting involves misrecognition, and the debt aspect to gifts must be masked. In order to be successful, the receiver of the gift must not turn around and return a gift in equal (social) value, but must hold themselves in abeyance, suspended in a sense of obligation to the giver as a matter of trust and respect; but crucially, to misrecognize the sense of debt that is embedded in gift exchange. Upon the passage of a suitable length of time, the receiver then returns the favor. If the passage of time is collapsed in gift-giving either because favors are returned immediately, or long time periods have elapsed between receiving and reciprocating, ‘the gift is revealed not as a gift but as a component of exchange’ (Venkatesan, 2011: 51). What is masked at the root of gift exchange is a play of domination between giver and receiver.
This would mean that surrogate mothers have authority and power over intended parents; after all, they have given a gift of a child who is priceless, and therefore of immense value. But that is not true in many empirically examined cases of altruistic surrogacy, especially in India.
The late Dr Sulochana Gunasheela, who was among the team of experts who drafted India’s very first national guidelines for assisted reproductive technologies in 2002, told me in our interview that in her extensive experience as an infertility specialist in Bangalore since the late 1980s, she had come to believe that altruistic surrogacy in India tended to be exploitative (Rudrappa, 2015: 149–150). She described that under ‘altruistic arrangements’ intended parents from upper middle class families felt entitled to poorer women’s gestational labor. The women employed in the capacity of housecleaning or cooking staff, or poorer relatives in the extended family were unable to avoid the demands placed on their reproductive abilities, especially if their own families had histories of dependent interactions with intended parents. Many of Dr Gunasheela’s clients practicing altruistic surrogacy, she said, believed they had already assisted these poorer surrogate mothers by paying for their children’s schooling, or employing their husbands. Commercial surrogacy, Dr Gunasheela said, avoided such exploitative relationships because surrogate mothers could receive a salary for her considerable gestational labors. She did not believe that the amount of wages surrogate mothers received was adequate, but she felt that the gift-giving impulse that supposedly described altruistic surrogacy was far worse because it was deeply oppressive to working class women, and falsely posited it as womanly sacrifice (almost always such sacrifices coming from working class, less privileged women).
Altruistic surrogacy, as witnessed by Dr Gunasheela, was often an exchange between unequal partners, the surrogate mother in a greatly disadvantageous social location in comparison to the intended parents. Under such social relationships of dominance, the recipient (intended parent) need not even return anything because that gift can be perceived as tribute to them because of their greater status or power over the gift giver (surrogate mother).
Moreover, within families and kinship networks, women do not necessarily have control over their own gestational labor. They are seen as either producing offspring (preferably sons!) who accumulate honor and wealth for the husband’s lineage; or, the children themselves can be exchanged as brides to other families, or instrumental in bringing brides into the familial fold in order to cement social relationships. Women are not alienated from their labor within their families and kinship networks. Indeed, they receive deep joy and affirmation in birthing and raising children, and performing other housework tasks that are essential to sustaining life. But, however, in decisions over how the child is named (after the father), to whom the child belongs (the father’s lineage), and ultimately, whom the child represents (patrilineage), her labors are eclipsed (Strathern, 1988).
If markets are built on exploitation of men and women, kinship networks are built on gendered domination, and the traffic in women (Rubin, 2012). Marriage, so central to kinship, is a critical form of gift exchange, wherein women are the gifts, and men do the exchanging (the father walking the bride down the aisle to her future husband is an example). According to Rubin, the incest taboo facilitates the movement of women from one kinship group to the next, and the men who exchange them receive social power. In exchanging women, what is also exchanged is sexual access, reproductive capacities, genealogical stability, and dynastic continuity. The kinship system allocates rights differentially between men and women, often denying women the right to choose their own destiny. Thus, for Rubin, the exchange of women in families and kinship networks situates their oppression in the realm of society, and not solely markets.
Concluding remarks
To briefly summarize: in commercial surrogacy, exploitation is established in production. And in altruistic surrogacy, domination is established in exchange. Both market networks and kinship groups are underwritten by the possession of, and exchanges in women’s gestational labor.
Many commentators on surrogacy have suggested global agreements, such as the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, in regulating global surrogacy. However, such agreements are difficult to enforce. With vastly different kinship structures, repro-national histories, policies that simultaneously endorse pronatalism and anti-natalism depending on race/caste/religion of the communities concerned, deep social and economic inequalities between communities and nations, a singular surrogacy legal mold is not a panacea, but can deepen injustices especially for working class women hired as surrogate mothers in diverse nation-state contexts all the way from Laos in Asia to Colombia in South America. Surrogacy reforms need to be built around reproductive justice, defined as the ability of women (cis-gendered and otherwise) to determine their own reproductive destinies, which is linked directly to the conditions in their communities; the conditions of their communities are shaped by deep inequalities (Rose, 2006). In expanding reproductive justice, Loretta Ross says abortion cannot be isolated from all other social justice issues. Similarly, surrogacy too needs to be located within the context of issues faced by minoritized communities that include economic justice, climate change and environmental degradation, ‘immigrants’ rights, disability rights, discrimination based on race and sexual orientation, and a host of other community-centered concerns’ (Ross, 2006: 14).
The reader can be forgiven at this point for thinking that I am endorsing an abolition of all forms of surrogacy. Yet, nothing could be further from the truth. Surrogacy bans are not a panacea either because such embargoes can lead to the movement of surrogacy underground, creating even greater conditions for fostering the exploitation of women, accompanied with medical violence. Underground markets in kidneys are only one example. If I were to suggest any sorts of policies it would be the following. My first recommendation is that if surrogacy is already being practiced, especially commercial surrogacy, the best possible course of action is not ban it, but to regulate it more heavily. Such regulations can include strengthening bargaining powers of surrogate mothers through organizing cooperatives; providing women far better wages for gestational work; greater control over working conditions; and decision making over their bodies. The suggestions listed here are reformist, rather than transformational in nature. They do not eradicate exploitation but make exploitation more palatable.
My second recommendation is that if a country does not currently permit commercial or altruistic surrogacy, the best possible course of action is to keep it that way. Any forms of surrogacy facilitate the development of medical/commercial networks, as witnessed in the US, Australia, India, and Thailand, which become extremely difficult to terminate. These networks of individual actors and firms move from region to region, and country to country, seeking new grounds for surrogacy where it is legal or not regulated at all. Instead of surrogacy, infertile couples and queer families wanting children can opt to enter into open adoption arrangements with mothers, wherein the birth and adoptive parents get to know each other, and reach mutually agreed upon terms for conversations, email exchanges, and visitations. Open adoption is more like a gift relationship than what most adoption situations are like today, where an adopted child is completely alienated from her birth parents. But like my first suggestion above, this recommendation too is not transformational, but potentially preserves the hierarchical gift-giving exchanges between families/kinship networks.
Perhaps a more just, and fully utopian suggestion might be what feminist geographer Sophie Lewis (2019) suggests. She grapples with the many meanings of motherhood, as does Corradi in this issue albeit in different ways. ‘Full surrogacy, now,’ says Lewis is the only way by which to challenge the possessive acts in gestation and children within nuclear families. The task, then, is to not just wrest surrogacy out of commercial transactions and place it in gift-like transactions, but to question the possessive investment in nuclear families that underwrites both markets and kinship networks, both sites of women’s disempowerment.
Though most societies question the idea that anyone can own children, there are property-like practices around the young: who is responsible for their socialization and education; who has rights to engage with them or not; and who is responsible for their safety. Because nuclear families, and ultimately mothers, are identified as the essential care-givers, they are burdened with the extraordinary tasks of providing safe homes even under conditions of urban precarity, food insecurity, environmental toxicity, unsafe schools, and gun violence. The failure of a child to thrive, then, is solely her responsibility and not the product of deeply unequal social relationships that make racial/caste/religious/immigrant minority communities far more vulnerable to deprivation. In the interest of the deep well-being of women, men, and children, Lewis calls for a radical socialization of reproductive labor, whether such labor is gestation, or the caring work that goes into raising children and caring for the elderly (2019).
In agreement with Lewis (2019), I conclude that surrogacy reforms cannot split surrogate mothers from the children they birth, and from the families within which children eventually grow. Birth mothers, biological fathers, intended mothers, gamete donors, and children who emerge through surrogacy are not atomized individuals, but have social relationships to each other that are then excised legally and through markets in order to make nuclear families happen. What might it mean for surrogacy reforms to recognize and respect the multiplicity of social relationships that make birthing, and raising children possible?
Footnotes
Funding
The author received no financial support for the research, authorship, and/or publication of this article.
