Abstract
As the industry of international fertility tourism has continued to grow around the world India has become a hotbed of controversy around the practice of commercial surrogacy. Some estimates claim that over 5,000 babies are born every year in India via surrogacy. With transnational surrogacy becoming a more widely known reproductive alternative, there are ongoing debates both in academia and the media regarding the extent to which women are empowered while also protected in the current structure of surrogacy. The resulting arrangement between intended parents, healthcare providers, surrogates and other agencies has become incredibly complex and wrought with challenges. As Shome & Hegde (2002a) have pointed out, the current state of globalization creates processes by which economic and cultural power lines shift rapidly. In light of the industry growth, the government and the Indian Council of Medical Research proposed guidelines and legislation aimed to regulate the Assisted Reproductive Technology industry that benefited from specific medical tourism trends. This manuscript discusses the business of surrogacy and explores the implications of the proposed policy amidst a controversial ban of commercial surrogacy for international patients through a critical discourse analysis of the policy, bolstered by direct interviews with health providers and surrogates. The analysis explicates the complexity and paradoxes of the arrangement highlighting the agency of each stakeholder involved. Unsurprisingly, the analysis shows a lack of protection for individual surrogates and a privileging of intended parents interests and needs. However, there are also important opportunities for potential regulation that works towards all needs.
Introduction
Contemporary advances in reproductive technologies have provided new opportunities for people who previously may have not been able to conceive naturally or produce genetic offspring on their own. Through processes like intra-uterine insemination (IUI) and in-vitro fertilization (IVF), couples and individuals have been able to work around fertility challenges and attain the family they have always dreamed of. Like many new technologies, these advances are not without cost and complication. It requires significant resources, time and energy to create a child with new assisted reproductive technologies (ART). For many, the reward is greater than the cost, but the complexity of these choices deserves attention. The regulation of ART differs greatly around the world, driving some prospective parents to explore international options. For a growing number of individuals in the last 13 years, this has landed them in India for surrogacy. Some estimates claim 5,000 babies were being born there through surrogacy every year.
Surrogacy is a complex relationship between many participants. A surrogate mother is a woman who carries to term and gives birth to a baby on behalf of others (Brinsden, 2003; Chang, 2004; Kandel, 1994–1995; Larkey, 2003; Spar, 2006). The individual or couple who hires a surrogate are referred to as the commissioning or intended parent(s). These parents may or may not have contributed genetic material depending on the type of infertility that is affecting them. If they are unable to contribute then an egg or sperm donor may be used. When engaging in commercial surrogacy, one where the surrogate is compensated for her labour, there may also be lawyers, brokers, as well as doctors and other medical providers involved in the procedure. The complexity of these agreements and the invasive nature of the procedure have led to some controversy regarding the rights of all individuals involved and how this process should be governed. In United States each state has unique laws and requirements for commercial surrogacy, as do many other nations around the world. These policies reflect the interconnectedness of culture, politics and the global marketplace.
Policy reflects entrenched cultural norms and social understandings. It can provide agency for those privileged in a law or bill and also impose further marginalization for those who it does not deem significant. This study aims to critically examine the implications of policy in the context of this complex relationship in surrogacy in India.
Assisted reproductive technology challenges traditional notions of family, childbearing and thus confronts cultural values as well. The politics of change are complex, particularly in a post-colonial democracy rising in global position. Cultural values influence decision-making and political policy and there are few issues that incite cultural debate more than reproduction and the female body.
Literature Review
Surrogacy in India
Commercial surrogacy agreements were recognized in India since 2002, and in only a few years, dozens of fertility clinics offering surrogacy services surfaced all over the country. The Times of India (September, 2008) reported that at least 15 per cent of Indians of reproductive age have fertility challenges. This percentage is higher than in the United States, which was estimated by the Center for Disease Control and Prevention to be around 10 per cent in 2015. While many Americans chose India as a site for fertility treatments and options because of the low cost, many Indians were unable to afford the services available in their own country.
Even with a growing local demand for alternatives for starting a family, a large amount of business seemed to be coming from outside of India. The Malpani Infertility Clinic in Mumbai 1 focuses their attention on foreign clients. They even offer information about where to stay, information about flights and the city, as well as suggestions to travel to the Taj Mahal or get an ayurvedic massage while on the trip to the clinic. Their website describes the convenience and cost saving as major benefits for coming to India for fertility treatment.
With increasing business in this area of medical tourism, some organizations like the Indian Surrogacy Law Centre have been calling for greater regulation of the surrogacy industry in India. 2 Initially, the Indian Council on Medical Research (ICMR), a division of the Indian Ministry of Health and Family Welfare, published a document titled, National Guidelines for Accreditation, Supervision & Regulation of ART Clinics in India. Chapter 3 of the guidelines describes conditions for surrogacy in assisted reproductive technology clinics. These guidelines were then used to construct the Assisted Reproductive Technology (Regulation) Bill presented in 2008 and updated in 2010, the focus of this manuscript. The Bill was finalized in Parliament in February 2011, but never quite made it through the approval process.
In late 2015, the ICMR and the government of India recommended a ban on surrogacy for non-Indian patients. The bill has not yet been updated, but fertility doctors across the country were contacted and told to no longer accept international patients for surrogacy services. As the industry has grown it has been under intense scrutiny from the public about the practice and there have been concerns about possible exploitation of Indian women who work as surrogates.
The Bill is the most comprehensive regulatory mechanism that has been suggested in India, but it is not the first time these issues have appeared in the courts. The Supreme Court of India upheld the legality of surrogacy agreements in the controversial and precedent setting case of Baby Manji in 2008. In this case, a Japanese couple hired a surrogate in Anand to carry an embryo created from the husband’s sperm and an anonymous egg donor. However, by the time the baby was born, the couple had divorced and only the intended father wanted to raise the child. There were no provisions under Indian or Japanese law to determine the parentage or citizenship of the baby in this case (Points, 2008). The case raised many questions regarding how surrogacy complicates issues of identity, nationality and parentage, in addition to the questions of regulation and standards of practice.
How family is defined legally is typically reflective of the socio-cultural beliefs and values surrounding family in a nation. In India, the value of genetic offspring and specifically of motherhood was confirmed by the legal requirement for Manji’s paternal grandmother to become part of the adoption process in order for the biological father to retain custody and return to Japan. Additionally, the continued development of industries that allow people to reproduce through medical intervention reveal the pervasiveness of the value of a genetic link to offspring. The ever-expanding definition of family is not the only location of cultural and political crossover.
The unique crossing of borders—internationally, bodily and legally—presents challenges of unpacking the cultural norms of parentage and the definition of family that is determined by law. Because reproductive processes are primarily connected to the female body there is an additional concern about the balance of agency and also protection for women involved in providing services like surrogacy.
Empowerment or Exploitation?
With transnational surrogacy becoming a more widely known reproductive alternative, there are on-going debates both in academia and the media regarding the extent to which women are empowered while also protected in the current structure of surrogacy. Critics question whether or not surrogates outside of the United States can willingly, as free agents, enter into the role of surrogate, given that they could be experiencing financial constraints (Sistare, 1994; Spar, 2006; Stephens, 1986). Some call the business of surrogacy in developing countries ‘baby farms’ (Dolnick, 2007). Others might argue that it is a unique economic opportunity for women in a location where there are few, if any, alternatives that could provide similar compensation (A. Malpani, N. Patel, personal Communication, 2009). In a country where a majority of the population is believed to live on US$2 a day, the surrogates make close to US$10,000 for one surrogacy. This would take her years to earn doing anything else (Nurluquman, Xin, & Lee, 2009).
Economic opportunity and reproductive health are two areas in which gender equality standards are often evaluated. In 2010, The Human Development Report ranked India 122 in their Gender Inequality Index (United Nations Development Programme, 2010). The Times of India (Sharma, 2010) reported on the ranking, noting that Pakistan and all other South Asian countries were ranked higher, with the exception of Afghanistan. The Index, while only one measure of the status of women in a nation, does provide cultural and political context for why women may opt to be surrogates in India. The financial opportunity and potential for empowerment are an undeniable draw. However, it is important to note that the Index also indicates high rates of mother mortality and a gap in reproductive healthcare for women in India, thus implying that the standard of care available for women carrying a baby as a job is greater than the average pregnant mother.
A baby can essentially have three ‘mothers’ when taking into consideration the intended mother, an egg donor, and a gestational surrogate all participating in the birth. Most laws are not prepared to define motherhood in a way that addresses the complexity of these agreements. Many of these concerns and complications are eliminated when employing a surrogate in India. The previous Indian regulation required surrogates to have already given birth to at least one of their own children with no complications. Additionally, no surrogate can have any genetic connection to the intended child. Doctors from the Indian Council for Medical Research argue in their 2010 bill that this ensures the surrogate has much less connection to the baby. Unlike the United States where surrogates often have the right to claim parentage, in India surrogates have no legal rights to the baby, and the law generally recognized surrogacy agreements geared in favour of the commissioning parents.
While going to a country like India may decrease some of these challenges for the intended parents, it also gives rise to new concerns. Since surrogates are sometimes positioned in the process in a way that gives them little power, they are vulnerable to exploitation. Their bodies are employed for the service of Western/Northern couples who have the time and resources to outsource a pregnancy. Some areas and clinics, however, do cater to Indian couples. The historical position of India as a colonial subject only strengthens some of the objections to this arrangement.
Today the intersections of business, government policy and women can be seen in the commodification of the body or its specific parts and their utility. As in the case of transnational surrogacy, decisions enacted by women privately and companies publicly lead to the regulation by governments and sets industry practices. These industry practices then determine the positioning of women as economic agents or commodities themselves within their own cultural structure.
The current state of globalization creates processes by which economic and cultural power lines shift rapidly (Shome & Hegde 2002a). However, the subject of gender and specifically globalization’s effects on women’s lives is absent in much of the discourse regarding these blurring boundaries (Shome & Hegde, 2002a). Business has been redefined with changes in technology that allow for increased trade across national borders more than ever before. In order to stay competitive as an industry it is important to identify any global audience or customer and determine how to meet their needs differently than in a solely local context. This is no different for the surrogacy industry. The largest economic benefit is coming from outside of India, and many clinics and peripheral businesses in the work of surrogacy have found a way to market and serve the needs of these foreign clients.
Surrogacy complicates the issue of agency and with the growing industry of fertility tourism the number and nature of the players involved continue to expand. The voices of women who work as surrogates have not been given the same space as other aspects of the industry as of yet, and the opportunity to collaborate with scholars from different areas of research and geographical locations as well as observe the surrogacy process first hand is invaluable to investigating new information regarding women’s global positions. Culture and social structure are often foundational in the decision-making process that leads to national or local policy (Dalton, 2006).
Policy
In initial investigations into surrogacy in India it is easy to be confused about the legality of the practice. While many stories highlight that it has been legally recognized since 2002, there is a level of complexity involved in the policy concerns and regulatory practices that is often ignored. While surrogacy has been an unofficially accepted practice in India in many circles, the official regulation never made it to actual legislation. The ambiguity and lack of formal recognition have been hotly debated in the medical community in India as well as the media. The law defines the rights of individuals in relation to the government structure that monitors behaviour of people and quality of services. Most policy is imperfect and part of political systems that often have competing interests, but they are important sources of information for how rights, protections, or lack thereof are communicated by government and medical systems.
The legalities only increase in complexity when taking into account the global position of India and local reality of women in the country. The image of a woman who is pregnant, not by her husband, in a village in India or on an Army post in Indian does not just become material in pregnancy. The process of surrogacy has symbolic, transnational, economic and personal implications. It is an example of everyday local acts or decisions of individuals (or families) having a range of effects in international relations, policy and cultural definitions of family. It is a new kind of alliance that crosses all kinds of borders—states, oceans, ideologies and bodies. Discursive materialism takes into account a certain ‘reality’ as well as the complex and often contradictory interpretive elements.
Precedent: The German Twins
In January of 2008, twins Nicolas and Leonard were born to an Indian woman named Martha in the city of Anand, India. Two years later the twins were at the centre of an international media controversy regarding where they belong. For months, news coverage in India was flooded with headlines about the complex nationality issues for the German twins.
Initially, the Gujarat High Court ruled that the twins would receive passports as Indian nationals because the surrogate mother was Indian. This ruling was stayed by the national government because there was no consensus on whether or not the Indian surrogate mother actually had parentage that allowed the twins citizenship under the Indian Citizenship Act. They were registered as children of foreign citizens when they were born. In India, unlike in the United States, you cannot become a citizen by being born within the country. The twins had no citizenship because Germany did not recognize their births and neither did India. Finally, in June of 2010, the German government issued travel visas for the family. The Balaz’s did have to navigate the complicated inter-country adoption system, but are now residing together in Germany.
This story exemplifies the challenges and complexities that exist within the commercial surrogacy process. While not the first major case to take centre stage in India, it has in many ways set precedent for future problems as the legal landscape changes with regards to surrogacy. Certain ambiguities in law and regulation have contributed to confusion and inconsistency in the responses to issues as they arise. Surrogacy complicates the definition of parentage, nationality and family itself.
Precedent: Baby Manji
In the same year of the twins’ birth, the Indian Supreme Court upheld a surrogacy agreement in Baby Manji Yamada V. Union of India (UOI). In the case of baby Manji, Ikufumi and Yuki Yamada, married doctors from Japan, hired a surrogate in Anand, India after being unable to conceive on their own. Japanese law does not recognize surrogacy, thus prompting them to seek the service outside of their home country. Working with Dr Nayna Patel at the Akanksha clinic, they hired Priti ben Mehta to carry their child. An additional complication was the use of an anonymous egg donor, whose identity was in speculation (Nepali or Indian). The sperm was Ikufumi’s, which left the father as the only genetic parent. Once Priti ben was pregnant, the Yamada’s returned to Japan to await the arrival of their child. However, during the months between conception and birth of Manji, the Yamadas divorced. At this point Yuki no longer wanted the baby who was not hers biologically, genetically, or legally. While Ikufumi still wanted to father his child, he ran into India’s Guardians and Wards Act of 1890, which prohibits single men from adopting girls (Points, 2008). Even though he was the genetic parent, he was still required to adopt Manji because she was born to an Indian woman in India. After quite a legal battle, the Indian government agreed to issue a birth certificate with only the father’s name and Emiko took her granddaughter home to Japan. Manji received a one-year visa on humanitarian grounds (Points, 2008), and it is unclear what her current status in Japan is.
The baby Manji case remains a cautionary tale of the complications of surrogacy as it ignited strong responses from many directions. One vocal opponent to surrogacy is Satya, a not-for-profit located in Jaipur. The organization filed a petition with the court for custody of baby Manji (Points, 2008). They claimed Dr Patel was engaging in child trafficking and that due to lack of surrogacy laws there was no clarity about who Manji’s parents really were. Because of this petition the case went before the Supreme Court who ultimately dismissed the claims and explained the passport decision was up to the Union government. These national cases only supported the call for a law to clarify many of the issues.
The regulation of these situations is not a simple matter. As Appadurai (1996) says, ‘…because the body is an intimate arena for the practices of reproduction, it is an ideal site for the inscription of social disciplines…’ (p. 67). The relationship between the body, consumption and habituation is apparent in many areas of cultural study if often exploited or misunderstood (see critiques of early anthropology, ethnography etc.). The core of consumption processes is located in the physical body. Even beyond the primary needs of clothing, food, shelter and hygiene, often secondary forms are experienced and positioned upon and within the body. In order to fully understand the implications of this relationship between cultural definitions of family, the consumption of the female body and policy-making, the actual legislation in examined in the following sections.
Method
I approached data collection from a qualitative perspective applying my broad interpretation of discourse. Differing realities and cultural constructions of experience can be examined by looking at discourse. Discourse can describe many types of communication including conversations, texts, narratives, language, interaction or the production of a society. Unfortunately, discourse cannot be defined in a simple and concrete manner. Fairclough (2003) describes discourse as ‘ways of representing aspects of the world—the processes, relations and structures of the material world, the “mental world” of thoughts, feelings, beliefs and so forth, and the social world’ (p. 124). Discourse reveals the meanings given to a subject in a particular context.
I wanted to capture as many perspectives as possible across the various stakeholders involved in surrogacy. My fieldwork India (consisting of two trips, one in 2009 and one in 2013) was primarily purposed with having recorded conversations with surrogates, healthcare providers, business people and policy-makers about surrogacy. Additionally, I wanted to see first-hand how the clinics operated instead of relying on their websites that were created with the intention of appealing to potential patients.
The data that resulted from this study included interviews, taped conversations and reflections, as well as printed materials provided by the participants. The result is a broad range of discourse around surrogacy. It is appropriate at this stage of investigation and awareness and will provide an important baseline to future studies. In addition to the interview data, key documents include The Assisted Reproductive Technology (Regulation) Bill of 2008 and 2010
Analysis of the Data
The tenets of critical discourse analysis (CDA influenced my approach to reading the interview data, and specifically my examination of the policy document. In more recent discussions of CDA it has been described as less of a specific method and more of a way of interacting with issues of power and the positionality in framing persons and actions (van Dijk, 2008). This is due to the increasingly broad nature of discourse and the variety of approaches to examining it in the social sciences. There are many commonalities among the various approaches that make it a common and useful tool for critical scholars.
CDA approaches language as a social practice. It stems from the fields of sociolinguistics, pragmatics and semiotics in the 1960s and 1970s. The evolution of this type of analysis has moved away from looking at single words or grammatical structures to examining entire texts and communicative events. Discourse is more than language it is also the action and interaction involved in communication (Phillips & Jorgensen, 2002).
Discourse analysis from a critical framework sees discourse as creating ideology and ideology as a means through which social relations of power are reproduced (Fairclough, 1992). CDA enables the study of the role of the social, cultural and cognitive contexts of language use. According to Foucault, one of the philosophers attributed with early use of CDA, texts constitute versions of reality in ways that depend on positionality in social structures and the objectives of those who produce the texts. Power is both produced by and produces discourse and it constitutes knowledge, bodies and, subjectivities. While, I do not claim to have fully engaged the CDA process in most of this analysis, it was an important foundation for my approach in subtle ways. I looked for multiple signs and symbols that positioned the participants of surrogacy in specific ways with regard to rights and responsibilities in the process. It is a subjective reading that was certainly influenced by my experience in the field and interviews with various individuals with different roles in the surrogacy process.
The cultural situatedness of any discourse or text is an important part of the historical context (Fairclough, 1992). Additionally, the researcher must be aware of their own position in society as well as their reasons for being involved in the topic they investigate. The researcher is the instrument in this method and must engage self-reflexivity systematically and continually throughout the process. CDA typically has fewer logistical challenges than international fieldwork, but it does present its own ethical dilemmas. While interpretive work tends to be descriptive, critical analysis explains. It is also highly dependent on a very specific piece of much larger issues and is therefore not particularly generalizable. This is typically not the goal of a critical research study, but it can make gaining credibility from other field more difficult.
CDA also runs the risk of using positions of privilege to speak for those we often presumptuously, define as oppressed. Alcoff (1991–1992) offers several ways to reduce these problems. First, the researcher must question and account for their location in relationship to what they are saying. Secondly, the researcher should always carry within him/her accountability for what they say and who they say it to. Finally, the researcher should evaluate the material and probable effects of his/her contribution to the discourse. In critical research, particularly when addressing issues of globalization or post-colonialism, the researcher’s relationship to their own bodily location and the bodies of others as well are enormously complex. There are competing and sometimes contradictory meanings and countless layers of historicity and power that create challenging and dissonant relationships (McKinnon, Chavez, & Way, 2007).
The Bill and the Stakeholders
The current decision to ban commercial surrogacy for foreign patients has sparked some controversy and many doctors who run fertility practices are opposed to the ban. Additionally, there remains some speculation about whether or not surrogacy will be available for Indian couples either. There are also many pregnancies currently in progress through surrogacy and intended parents have expressed concern about how their arrangement will be treated under the current climate. The language and structure of the bill as it stands reveals the strengths and weaknesses of each participant’s position. By closely examining the rights and responsibilities of each group of participants, in addition to what is missing from the legislation one can determine who is and in what ways they are privileged. The participants present in this study reflect most of the categories including (a) lawmakers, (b) healthcare providers, (c) surrogates and donors and (d) commissioning parents.
Lawmakers
The bill has called for the formation of a national advisory board to carry out the regulation of ART clinics. It describes the board as having a maximum of 21 members including a chair appointed by the Ministry of Health and Family Welfare (MHFW). Additionally, it was to include an officer of ICMR, a representative from the Ministry of Health and Family Welfare, a ‘member of an Indian professional society concerned primarily with assisted reproduction’ (Clause 3.2d) and up to 16 other experts nominated by the MHFW. The bill required that a minimum of six of the board members be women. Each state would then be required to form a similar, but smaller board. Most interestingly, any proceeding before a state or the national board would be deemed judicial, similar to a civil court. These bodies would be responsible for the formation, modification, regulation, and enforcement of the ART regulations. It is a powerful central location that does not necessarily have representation from groups that are most directly impacted—the surrogates, donors, and parents. It would be primarily comprised of members of the scientific biomedical field, while ignoring the implications for social, political, and cultural areas.
All ART clinics would then need to register with the boards for accreditation. The bill states, ‘The State Board may, subject to such terms and conditions as may be prescribed, register any assisted reproductive technology clinic on the basis of the techniques and procedures of assisted reproductive technology practiced at such a clinic’ (Clause 13.3). It leaves an open-ended responsibility for the state boards to determine the conditions without any uniform information regarding requirements for gaining accreditation or ways in which a clinic may lose said accreditation. The bill does not provide a checklist of preconditions required for accreditation. Neither does it include clear information about the process of losing accreditation. One would assume that there is a list of infractions that may incur a fine, while other more serious problems would entail the closing of the clinic or other legal consequences. It would be useful for these details to be included in the ART bill to synthesize all critical information for these businesses.
These boards would adjudicate the penalties for any lack of compliance in accordance with the bill. There is very little that specifically identifies these penalties or how the process of adjudication will look. The information on offences namely addresses the issue of pre-natal sex determination. This is illegal under all circumstances in India and would also apply to foreign patients receiving ART treatments. The offenses are listed as punishable by imprisonment and/or a fine without any specificity regarding amounts. Presumably the boards would also determine that during a judicial proceeding.
The health officials I spoke with in Gujarat were mostly concerned with the documentation and immigration of the babies that are produced through surrogacy. That has been the central issue in the two major cases that have been publicized thus far. Any further complications would presumably also be addressed after a problem emerged. Dr Desai of Civil Hospital explained.
In our country the issue comes first and then the law. In other countries the law comes first and then the issue. It’s a large country with a large population and every state has its own issues and health concerns.
Desai’s description of the political process reveals the challenges of historical and cultural influence on institutional work. In a newer democracy with a large population that is advancing technologically and globally the policy-making process may be more reactionary and then proactive.
Healthcare Providers
The clinics duties revolve mostly around record keeping, gaining consent and informing patients about risks related to procedures. However, with regard to surrogacy there are specific and sometimes contradictory rules. Clause 20.10 states, ‘No assisted reproductive technology clinic shall consider conception by surrogacy for patients for whom it would normally be possible to carry a baby to term.’ However, Form J—Agreement for Surrogacy opens with the surrogate stating, ‘I _________ (the woman), with the consent of my husband _______, of ______________ (address) have agreed to act as a host mother for _______________ who are/is unable (or do not wish to) have a child by any other means.’ This is a problematic contradiction about the fundamental decision as to whether or not surrogacy is appropriate. The Bill would seem to require a medical need for surrogacy as a fertility treatment rather than simply an alternative for a woman who does not want the physical strain of pregnancy to interrupt her life. However, the concern has been with people coming into India from other countries to hire surrogates it is difficult to ensure this need if they bring their own records or refuse to be examined by a local doctor.
In one interview with surrogate Sunita, she explained that she believed the commissioning mother in her case could in fact have her own baby. In other words, she did not have a medical need for surrogacy. Sunita speculated about why she might make the choice to hire a surrogate instead by saying,
Madame (Dr. Nayna Patel) explained to them, why aren’t you having a baby on your own? So I will ask them why they are hiring me. Well you never know, maybe she has a job and doesn’t have time to have a baby.
The proposed bill prohibits ART clinics from recruiting surrogates for their patients. It does, however, allow patients themselves to advertise as long as they do include ‘details relating to the caste, ethnic identity, or descent of any of the parties’ (Clause 34.7). With this stipulation, third party agencies such as Surrogacy India would be in high demand. These agencies are not clinics; they strictly deal with services associated with the international surrogacy process including travel, legal agreements, qualified surrogates, egg and sperm donation and assistance finding a clinic to work with.
The bill is silent with regard to any outside organization or business, such as medical tourism agencies and their involvement with any aspect of surrogacy. Clause 26.6, however, allows for semen banks to advertise for surrogates, ‘who may be financially compensated by the bank.’ Interestingly, the bill does not include semen banks under the category ART clinics, thus not requiring the same adherence to the rules of the bill.
Dr Malpani of the Malpani Infertility Clinic in Mumbai agrees strongly with this clause saying,
A better way is to let the doctors do the IVF, but to let the surrogacy be handled by an adoption agency. We already have a network of adoptions agencies around the country run by social workers who are not commercial, who understand the issues of family building and can counsel people. If you give them the responsibility they will counsel the surrogates and open the bank account for the surrogate. There would be a professional who is guarding the surrogates’ interests.
The doctors I spoke with, all insisted that they worked within the current ICMR guidelines and that they would only continue as long as the law allows. Dr Patel of Akanksha Clinic stated,
Lots of people want to do this, but don’t want to be known in the open. I am doing it and I am doing it in public the way the government wants it done, but the day they say it is illegal, I will not do it.
The doctors at Surrogacy India also said they would close their doors the minute the government said it was illegal for surrogacy. Dr Ajja spent a lot of time incorporating all of the ICMR guidelines into the structure of their business. The documentation and the stringent adherence to the guidelines differentiated their company from the clinics I visited. Dr Ajja explained his areas of concern,
What happens is when laws are passed it is a big deal and they are at the macro level but the guidelines are still incomplete. It does not really say who’s responsibility to choose the couple—whether the clinic, a third party. There has to be a need, a medical reason for surrogacy and if you don’t satisfy that we will not take you. It is unclear in guidelines. It is said it is not clinics responsibility to provide documents for baby, but whose responsibility is it? Couples are very emotionally charged. They want to have a baby, first ray of light they just jump, they say let’s have a baby and then see what to do, so who guides that? We have taken our own steps. We take a stand and we guide our patients.
The guidelines and the growth of surrogacy have initiated debate within the medical community in India. Dr Patel described a public forum that occurred a week before my interview with her,
We had a debate in Mumbai that was going on ninth of December where there was one patient of mine who had done surrogacy. The auditorium was full. When the whole thing was over when the audience was asked if they thought surrogacy should be done—95% agreed it should be done. But those same people walk out saying India is portrayed the wrong way and why should Indian women be surrogates?
Mr Patil of Trivector and Cryos International agreed with the general consensus at the meeting,
Last week we had a conference called Ovary 2009 and everyone agreed that it is helping everyone involved. It is helping the surrogates’ family getting some livelihood and she may be able to pay the school fees of her child or something like this.
However, he is not convinced that the guidelines are complete enough to protect surrogates:
There are a lot of grey areas yet—one of the reasons I’m not comfortable yet.
Surrogates
Most absent from the bill has been specific protections for surrogates. While there is an agreement form in the appendices of the bill, it mostly focuses on what the surrogate is doing for the commissioning couple rather than what might be required for her own well-being. For instance, the form reads, ‘I have worked out the financial terms and conditions of the surrogacy with the couple in writing and appropriately authenticated copy of the agreement has been filed with the clinic, which the clinic will keep confidential’ (See Appendix B). Nowhere in the bill are there guidelines for this negotiation or for compensation and care for the surrogate. The agreement itself is in the surrogates’ voice, with no additional form for what the commissioning parents are agreeing to. The agreement states, ‘I have been tested for HIV, hepatitis B and C and shown to be seronegative for these viruses just before embryo transfer.’ In other words, the surrogate is stating that she has no contagious diseases that could be transferred to the baby she will carry. However, there is not additional form where the parents providing the genetic material for the embryo that will be placed in the surrogate have been tested for such diseases. The agreement also speaks to a contingency in case the commissioning parents die or are unable to pick up the child, but has no information about the death of the surrogate. The bill is silent with regard to health insurance and legal assistance for surrogates.
These gaps are consistent with the current position of women in India based on the Gender Inequality Index. The surrogate is, however, guaranteed her legal right to terminate the pregnancy up to 20 weeks. She will not be compensated if it is her choice and may have to return any payment already made, but if the termination is recommended for medical reasons she will not have to turn payment over.
While a few of these individual rights remain intact, the surrogates themselves appear relatively unaware of the ICMR guidelines or any specific protections. Their information is limited to the narratives of friends or relatives who have also been surrogates or what the doctor or recruiter tells them. As Kapila, a surrogate from Akanksha Clinic explained,
They read [the agreement] out loud to us in Gujarati because we cannot read. The doctor makes agreement.
The filtering of information through a party like the doctor managing the surrogacy for international patients creates potential for a specific framing that reduces participation from the surrogate. This removes some of their individual agency by relying on hierarchical deference. The structural, class and educational differences create a patriarchal relationship between the surrogate and the doctor (or in the case of Surrogacy India, the managing director). The surrogates are put in the position of subordinates who must rely on information given to them by more powerful individuals instead of having stronger representation for themselves.
This relationship of dependence creates an environment ripe with the possibility of exploitation. While there are many doctors who do care about the well-being of the surrogates there are certainly opportunities for others to take advantage of the situation. The position of the educated and literate is one of postcolonial dominance. Globalization causes power lines to shift (Shome & Hegde, 2002a), creating planes of disempowerment where these women are concerned. As borders are crossed with increased frequency there is a blurring of power relations with the body caught at the centre. The surrogates are potentially vulnerable to abuses that may arise out of this relationship. It is vital to continue to consider their bodily health as well as their emotional and spiritual well-being.
Commissioning Parents
On the other hand, the intended parents, often a foreign couple (until recently), seem to have a great deal of autonomy under the bill’s current guidelines. There is extensive information about the screening of a surrogate and her suitability, while not including information on the screening for suitability of the commissioning parents. There is no apparent differentiation between local and foreign parents. The one distinguishing factor is the requirement of a local guardian responsible for caring for the surrogate when the parents reside outside of India (Clause 34.19). This clause essentially requires that the surrogate herself is in need of parenting, but no mention of care for the baby that is being born. Dr Desai commented,
Those foreign couples who are coming and those of the higher class, who know what they are going for, who are the beneficiaries of this—they are not worried for the women who are opting for these services, but the state should be involved in studying why these women are coming forward.
The commissioning parents, referred to as ‘patients’ by the fertility doctors are given significant leeway in terms of what they can request. At time this even goes against Indian law in a disturbing manor. While it is difficult to confirm these occurrences, one surrogate at Akanksha Clinic gave surprising information at the end of the interview. I asked, ‘you don’t know what sex [the babies] are right?’ as gender identification is illegal under any circumstance in India. One surrogate responded,
No, I don’t know because the couple wanted a surprise. If the party forces they can be told.
Allowing, the foreign couple to skirt the local laws, puts them in a position of unnecessary power that implies they are above the rules. In this instance, entrepreneurial values outweigh traditional notions of the body and cultural understandings of family as well as the political decisions that have made to preserve certain social structures. The doctors are very sympathetic to the circumstances of the infertile couple and focus on their need for reproductive choices. Dr Banker of Pulse Hospital, Dr Patel of Akanksha Clinic and Dr Malpani of Malpani Infertility Clinic all referred to fertility treatments as reproductive rights of the infertile patients. Dr Palshetkar, who has a private practice in Mumbai said,
I think you need to see the perception from all the sides. The women [intended parents] are shattered. They are traumatized by the fact that someone is going to carry their child.
These inconsistencies and lack of clarity in the roles of all the participants in commercial surrogacy cause concern from some. Dr Malpani describes his hesitations,
We get a lot of interest, but we do not do any commercial surrogacy. It is very easy to do, but my only concern is that the rules, the laws are not well defined. Everything is done on an ad hoc basis. Anyone can set up a guideline—it’s not binding and that’s what I’m not comfortable with
The doctors providing fertility treatments are personally and professionally invested in the success of surrogacy in India. The commercial surrogacy practice is vitalizing several industries in India as well as the United States and while concerns are expressed the dominant discourse is one of support for surrogacy to not only continue but to grow. Dr Patel’s final words to me about surrogacy were,
I would say that surrogacy in India I would consider as India’s gift to the world. The world should not look down on India. In fact, like you know the Indians are very helpful people all over the world and if by doing surrogacy the Indians are trying to help infertile couples inside the country and outside the country it should be recognized as such.
At the centre of the surrogacy process is the creation of a baby. This is often not a part of the discourse until it comes time to take the baby home from India. In the two major cases of baby Manji and Nicolas and Leonard many voice that the best interest of the baby should be considered. This is complicated by a lack of international agreement on how to handle such processes.
The Baby
The Bill does not fully address the problem of documentation and citizenship that became so controversial in its first two national cases. As Dr N.B. Dholakia of the Gujarat Ministry of Health stated in our interview, ‘The biggest complication is that sometimes we don’t know who the baby belongs to or whose name goes on the birth certificate.’ Clause 35.7 states, ‘The birth certificate of a child born through the use of assisted reproductive technology shall contain the name or names of the parent or parents, as the case may be, who sought such use.’ It is still ambiguous enough that in the case of baby Manji where there was an egg donor, intended mother and surrogate it may still be unclear. Understandably, the authors of the bill could never foresee every potential problem given the complex nature of arrangement. However, given that medical tourism is not a new phenomenon in India, some of the complications with regard to the identity of the baby can be addressed.
The baby is not a prominent part of the specifics in the ICMR guidelines. There remains some ambiguity as to who is ultimately responsible for securing documentation for the child or how care for the child should be handled once it is delivered. Again, a lot of control is placed in the hands of the doctors who are benefiting the most financially from the agreement. The positioning of each stakeholder in the proposed bill reveals their privileges and limitations. There is a lack of equity in responsibility and sacrifice. The surrogates take on much more of risk and sacrifice the most autonomy under the current provisions. While the ICMR guidelines have provided a useful framework for regulating the surrogacy industry, there are important changes that can provide a more equitable agreement. The protection of the rights of the surrogates is critical to any future surrogacy work in India.
The Future of the Bill
In less than 15 years of official practice, surrogacy has ignited international debate and controversy. The process requires complex medical procedures and good-faith agreement from very different participants and the business is moving faster than the law. There is no uniformity when it comes to regulating surrogacy. While India is attempting to create a unified regulation of the assisted reproduction industry, the current Bill is inadequate to fully address the needs of each participant—namely the surrogate and the child. When the bodily labour of pregnancy enters the public sphere through regulation and compensation it becomes a public health issue. The rights and agency of surrogates should not be minimized. The medical professionals involved in constructing the regulation of the ART industry in India are frequently private fertility experts. They and their colleagues have a lot to gain by promoting practices that bring business to India.
The guidelines should also be precise about the consequences for not adhering to the high ethical standards. The registration and regulation of ART clinics is much clearer than any regulation for additional agencies. As the industry gains momentum there will only be more agencies finding their way into the business. There are public hospitals and other medical professionals offering a wide variety of fertility treatments as well as law firms and travel agencies beginning to specialize in fertility tourism. These organizations and professionals should be held to the same ethical standards as the official ART clinics. The government will need to recognize the increasing number of players in the world of ART and adjust the regulation accordingly.
Additionally, the current draft of the bill limits who can recruit and advertise for a surrogate. Clause 34.7 states that commissioning couples may advertise as long as they do not include “details relating to the caste, ethnic identity or descent of any of the parties.” It also prohibits ART clinics from doing the recruiting of the surrogates for the couple. However, it does not define parameters for advertisement or recruitment from other agencies or the surrogates themselves. Neither is there mention of regulation or consequence with regards to the advertisements if they do not meet the standards they have included.
The information collected about the surrogates also reveals a problematic tendency towards eugenics in reproductive medicine. On Form M-2, Information about the Surrogate (See Appendix C) contains the requisite medical history and health information, but goes one step beyond critical physical characteristics. After height and weight there are questions about skin colour, eye colour and hair colour. A surrogate living at the Pulse Hospital revealed a similar trend when she was selected by her commissioning parents,
They asked me if I had a light child.
These considerations have no bearing on the child’s traits, as the surrogate does not provide any genetic material. While there are debates regarding the necessity of selecting traits from sperm and egg donors, there is no medical reason to privilege certain traits in a surrogate. The characteristics would only have social meaning and would promote discrimination against certain castes or ethnic identifications. The bill should do the important work of limiting these considerations to only medical reasons (e.g., if a couple wants a child to resemble them genetically).
This is inherently complex, and while these questions may privilege certain women there are culturally bound expectations given the historical roots of societal preferences for certain traits. It is an easy critique to make from a Western bio-medical perspective, but may be incredibly challenging to eradicate given the entrenched norms that can be found in similar paperwork (i.e., adoption forms). Since the forms are found in the proposed policy they deserve examination. Questions remain regarding how this affects implementation and whether or not there are severe consequences for potential surrogates.
Finally, the guidelines should include more protections for the surrogate from the agreement process to the delivery. They should also have clear recourses if the commissioning parents do not hold up their end of the deal or if doctors mistreat them. Including representatives or advocates as part of the process would help lessen the power differences between the parties. Information needs to be disseminated to the surrogates by someone who does not have an emotional or financial interest in them taking the job.
The Positioning of Rights in Policy
By critically examining the proposed policy, I have identified gaps and contradictions that can be remediated for the interest of all parties. The current ban is a knee-jerk reaction to the growth of surrogacy without appropriate regulation in place. The future of surrogacy is dependent on the following general considerations: (a) implementation of clear guidelines and requirements for additional agencies, not only the ART clinics, (b) clearly defined legal consequences when those requirements are not met, (c) consistency in managing documentation and immigration of the children and (d) advocacy available for surrogates and for the babies who are at the heart of the industry.
The goal of this article was to introduce policy deliberations that heave emerged in India as the practice of surrogacy increase in popularity in order to highlight the increasing value on global commerce rather than political strengthening of the position of women. The political determination found in legislation reveals the value hierarchy in a culture. As societies advance economically and industrially, political issues are more linked to postmaterialism (Inglehart, 1990). Winston and Bane (1993) write,
Certain thematic contrasts pervade public policy deliberations. These contrasts include those between justice and compassion, autonomy and responsibility, equality and difference, competitions and cooperation, public and private, self-interest and the common good. (p. xi)
The construction of the Bill and the debates surrounding the recent controversies reveal a privileging of individual choice, the private experience and self-interest. The commissioning parents and the doctors remain the most powerful figures in the surrogacy process. The policies reinforce a structure that ensures the success of the commercial industry and a future of more patients seeking treatment in India. While the general direction of the Bill points to potential protection for surrogates and the babies, there needs to be more work done in this area.
There is no ignoring the very real gap that exists between the globalized ‘haves’ and ‘have-nots’, and continued focus on the daily actions of individuals (on their own or as members of groups) implies much more efficacy and agency than may in fact be available. Nothing about globalization in the cultural and political spheres is permanent. Flusty (2004) explains,
There are multiple versions of the world at play on the global field, and there are inarguably winners that claim the lion’s share of the spoils…. All remain engaged in continuous, polyvalent, and dislocated struggles for control over symbolic and literal terrains, all work to be concretized as globalities with the power to influence (or refuse) the order of the world…. It remains instead a persistently viscous planet, an arena where all manner of institutions and other hybrid social collectivities advance incommensurable globalities, plutocratic and otherwise, of their own devising. (p.131)
There are inherent contradictions found in the modernization of medicine and reproduction and the process of government regulation of these personal experiences. While there is an argument for commodification of the body and problematic corporatization of childbearing, a more hopeful perspective may see transnational surrogacy providing an opportunity for a type of resistance to traditional ways of seeing families, communication across culture and globalization in general, or the construction of a new cultural and political understanding of the family.