Distraction Free Reading

Enigmas of Corporeal Justice: Surrogacy and Legality in India

Over the last two decades, India has become a popular global destination for what is commonly referred to as reproductive tourism, wherein clients travel from one part of the world to another to seek biomedical interventions to help them have children. Breakthroughs in assisted reproductive technologies (ART), such as in-vitro fertilization (IVF), have led to a boom in surrogate pregnancies as a means of having children, with international clients (mostly from the Global North) flocking to countries in the Global South, like India, to avail of these services. Like much of the medical tourism industry, this movement is motivated by access to state-of-the-art medical facilities, skilled professional care, along with remarkably low costs and the availability of poor bodies to extract from.

An image of the scales of justice and gavel with the Indian flag in the background.

The supreme court and the Indian government addressing reproductive tourism (Wikimedia Commons)

The word “surrogate” comes from the Latin word “surrogatus” or “surrogare,” meaning substitute. A surrogate mother/worker is one who bears a child on behalf of another woman. With new developments in ART, the surrogacy industry has seen massive growth, with surrogacy clinics and agencies cropping up across the globe since the 1970s. In most parts of the world, gestational surrogacy is practiced, wherein the surrogate acts as a vessel to bear the child, bearing no genetic link to the child. She is impregnated via IVF using the gametes of the commissioning parent/s, or with gametes sourced from egg/sperm donors. On the other hand, traditional surrogacy is when the surrogate’s own gametes are used, and she is both the bearer and the genetic mother of the child. The surrogacy process is further complicated by another variable — remuneration, by which commercial and altruistic surrogacy are defined. Commercial surrogacy is when the surrogate is paid for the labor and service she provides, whereas altruistic surrogacy is when her labor is given for free, as a “gift.” All these permutations and combinations no doubt make the surrogacy process rather complicated, confounding social norms of parenthood, kinship, citizenship, and labor, and blurring the boundaries between “natural” and “artificial.”

The exchange/commodification of body parts and of social roles like motherhood in the surrogacy process give rise to legal anxieties as well. Since its legalization of transnational commercial surrogacy in 2002, India has become the “mother destination” (Rudrappa 2015) of surrogacy, estimated at a whopping $1 billion a year (Bindel 2016). Surrogacy contracts and clinics were to follow national guidelines laid down by the Indian Council of Medical Research, that aimed at the protection of surrogate workers’ rights, rights of children born out of surrogacy, and other required ethical standards for stakeholders. However, these guidelines were not enforceable by law. As a result, a host of international court cases and reports began to emerge, covering the exploitation (and sometimes, death) of surrogate workers, the abandonment of children born out of surrogacy, and their ambiguous legal status, especially in countries where surrogacy is prohibited. With growing alarm, the Indian state released a series of legislative measures, in an attempt to regulate the industry. The formulation of the Assisted Reproductive Technology (Regulation) Bill in 2008 was the first step in this direction, aiming to regulate ART procedures and clinics that were necessary to facilitate surrogacy. This bill has been reviewed and redrafted at least three times but is yet to be passed as law. In 2013, the state banned surrogacy commissioned by foreign queer couples and single parents, and by 2015, the state had banned surrogacy commissioned by international clients as a whole, allowing it only for domestic purposes. In its most recent legislation, the state has proposed to criminalize all forms of commercial surrogacy, under the guise of regulation. The Surrogacy (Regulation) Bill of 2016, with subsequent redrafts in 2019 and 2020, is currently being debated in the Indian Parliament, having been passed by the Lok Sabha (lower house) in 2019, and awaiting approval from the Rajya Sabha (upper house). Recommending a complete ban on commercial surrogacy, the bill legitimizes only altruistic surrogacy for heterosexual married couples.

Not only does the bill narrowly define “family” within the existing norms of heteropatriarchy, but it also actively augments the exploitation of surrogate workers. Stifling workers’ economic agency, the state takes away their capacity to engage in the (re)productive labor market. In the name of putatively protecting surrogate workers from the apparent exploitation entailed by the industry, the state is, instead, washing its hands off the protection of surrogate workers’ rights. In its current form, the bill reinforces paternalistic and patriarchal notions of control over the female body by deeming reproductive labor natural and altruistic. It also marginalizes bodies that do not fall within the framing of the conservative, heteronormative familial order, excluding queer couples and unmarried individuals from the possibility of having a child in this manner. This is especially discriminatory, considering that the Supreme Court of India legally recognizes same-sex and live-in relationships. The bill authorizes the state to determine who has the right to form a family and who doesn’t, institutionalizing stratified reproduction along the lines of gender, sexuality, and nationality.

The emergence of the surrogacy industry in India, and the state’s current push for criminalization, become particularly interesting when viewed in its politico-historical context. After having imposed strict anti-natalist policies soon after independence to forcibly control its (mostly rural) population under the garb of “family planning,” the state has been investing in the very fertility of these women. Previously seen as a detriment to the country’s economic growth, it is this fertility that the state now sees as an economic resource to be harnessed. While the women who act as surrogate mothers for wealthy couples often do not have access to the most basic healthcare in their everyday lives, they receive the best possible care and more, during the period of the surrogacy contracts. The surrogacy process is inherently an imbalanced and unequal power relation between surrogate workers and commissioning parents, stratified along the lines of class, caste, and religion. This is stratified biomedicalization (Clarke et al. 2003) at its best – the privileged and wealthy have access to advanced biotechnological forms of reproduction and “IVF Holidays,” while the rural poor barely have access to adequate healthcare.

Stratified biomedicalization is further exacerbated by the state’s move to criminalize commercial surrogacy. Commercial surrogate workers in India have been left in the lurch by the state, having no access to alternative forms of income generation. They lack access to basic healthcare in their everyday lives and often are unable to parent their own children in safe, healthy environments. By legitimizing only altruistic surrogacy, the state takes for granted women’s reproductive labor, deeming it a “labor of love,” albeit contractual. The state must recognize that the highly corporeal and gendered nature of this form of labor is indeed “work,” and not merely a “gift.” Criminalizing commercial surrogacy under the garb of regulation dismisses the labor involved, putting the workers at increased risk of being exploited. Notwithstanding the implementation of the bill, the billion-dollar surrogacy industry is unlikely to come to a halt. Instead, the bill opens up more avenues of abuse of surrogate workers, who are not only criminalized but also invisibilized as they are pushed outside the realm of the law. To achieve true reproductive justice, it becomes imperative for the state to decriminalize commercial surrogacy, regulate the working conditions of the industry, and move beyond the heteropatriarchal framework of legislation. These structural and institutional changes will empower surrogate workers as dignified laborers who are fairly compensated, give equitable access to healthcare, employment, and education, and facilitate upward intergenerational social mobility.


Works Cited

Bindel, Julie. 2016. “Outsourcing Pregnancy: A Visit to India’s Surrogacy Clinics.” The Guardian. http://www.theguardian.com/global-development/2016/apr/01/outsourcingpregnancy-india-surrogacy-clinics-julie-bindel.

Clarke, Adele at al. 2003. “Biomedicalization: Technoscientific Transformations of Health, Illness, and U.S. Biomedicine.” American Sociological Review. 68(2):161-194.

Rudrappa, Sharmila. 2015. Discounted Life: The Price of Global Surrogacy in India. New York University Press.

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