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Surrogacy in India: the Fallacy of 'Choice'

Will laws to regulate surrogacy work in India?

Vaishnavi Sundar
Vaishnavi Sundar

India has been captured by woke politics, so waking up to misogynistic news has become rather customary. The gender industry has made strides by squarely kicking the women’s rights movement in the gut. The latest hit presents itself as a man who hopes to “mother” a child he would father. To achieve this goal, he has stored his semen at a fertility clinic before undergoing “sex-reassignment surgery to become a woman.”

The 25 year old Indian male, Dr. Dayara, who graduated from a Russian University, has returned to India hoping to practice medicine. “To become a mother, I will not be shy in seeking surrogacy options across the globe. I want to write a new chapter for myself and for others like me by becoming a biological parent,” he said during an interview in which he also claimed to be the “first trans woman Doctor of Gujrat.” My concerns about his grasp of science and medicine are high- given that he can’t even comprehend sexual dimorphism; that male and female humans are distinct forms of individuals within the same species and not a “spectrum.”

Many trans-identifying men are obsessed with the idea of womb implants in order for them to  “deliver” babies. But because such a grotesque technology is still being researched, men have to use a surrogate instead. Should such a procedure prove successful, it will result in yet another harmful industry that commodifies women’s bodies. As with ‘woke’ attitudes towards prostitution, the harvesting of a woman’s uterus would no doubt be deemed a matter of “choice” too. Demanding India allow trans-identified men to take the surrogacy path to parenthood, Dayara insists: “As a country, we need to be compassionate to each human’s biological desires.” I wonder what’s biological about believing oneself entitled to benefit from a woman’s deprivation.

As of 2020, India has remained one of the biggest markets for surrogacy. The cost of procedures are estimated to be between $20,000 to $45,000 USD in India, as opposed to $60,000 to $100,000 in the US. The number of surrogacy births in India tripled between 2007 and 2009. Low treatment costs, easy access to top medical professionals and favorable regulations for surrogacy treatment have seen the Asia Pacific surrogacy market capture over 28% of the revenue share in 2020. According to Global Market Insights Inc, the global surrogacy market is expected to exceed USD 33.5 Billion by 2027. Despite such untethered growth of an unscrupulous market, surrogacy has encountered little scrutiny or regulation.

Semantics

As of 2021, “commercial” surrogacy is banned in India, and this has garnered a variety of responses from citizens. A woman is put through a grueling experience that potentially wrecks her mind and body, but she is being “compensated” for this as if the said compensation would atone for the damage. The term “commercial” is thus a front for an unscrupulous business transaction where a family gets a baby, and the mother is not even allowed to see the child. She is deprived of good mental health while being pumped with hormones but is considered to be “profiting” off this transaction. So-called "women’s rights” organisations, activists, media and liberals alike are questioning the ban, arguing that “commercial surrogacy” provides financial independence at the very least.

“I wanted one copy of the contract for myself, but I didn’t dare to ask for one… one page was also blank which I signed and also the amount was not filled in. She (the agent) didn’t give us a chance to read the agreement,” Maya, (name changed) a surrogate mother said about her first experience.

Dr. Sheela Saravanan, an Associate Professor at the Centre for Women’s Studies, University of Hyderabad did an impact assessment study of 45 women who underwent surrogacy. She said:

“Once the money has come in, (after the first surrogacy) they buy themselves amenities and pay debts etc.. Soon the money is over and the woman is pushed to be a surrogate once more. It is only after the second surrogacy, the family is able to make some money after cutting their losses. I have known of a woman post surrogacy, who lost her house being pushed into further poverty and was living by a railway station, abandoned and with nowhere to go.”

So, the promise of economic empowerment holds no ground in ultra poor families, but it certainly appears to be a sweet deal if you conceal this aspect well.

Similarly, with the blanket usage of the prefix “altruistic,” the unpaid labor of surrogate mothers is normalized. Altruism is defined as a quality of a person who has concern more with the needs and wishes of others than with one's own. It pretends a woman is somehow choosing to wreck her body out of concern for an infertile couple. Usage of such terms is immoral and illogical. Even if a woman offers to surrogate a child out of the goodness of her heart, would it be acceptable to take advantage of the offer knowing the grave repercussions she would suffer? Isn’t it abusive to want to put someone through acute physical and mental trauma by exploiting their kindness? Incidentally, Dr. Saravanan said in an interview that when she asked the women if they would become surrogate mothers for free, they responded “no,” citing health risks.

Not only are these above-mentioned prefixes immoral, they are highly manipulative. Commercial surrogacy presents itself as a model that uplifts the surrogate mother, but the power rests squarely with the intending parents and their thick wads of cash. The child born to a surrogate mother is also called a “gift” to the intended parents which bolsters the notion of altruism. So many surrogacy websites wax lyrical about this practice with no regard to the woes of vulnerable women. I wish to clarify that I use these terms in the article to only refer to the law as it stands, I do not condone their use by law makers or those advocating for surrogacy.

Indian surrogacy laws

There are two Bills that are being floated in the parliament that could potentially be passed into law regulating surrogacy.

1 - The Assisted Reproductive Technology (Regulation) Bill, 2020: ART was introduced in the Lower House (Lok Sabha) on September 14, 2020. It plans to include all procedures and techniques that seek to create an atmosphere for  pregnancy where the sperm or the oocyte is preserved outside of the human body, the gamete or the embryo is then transferred into the reproductive system of a woman. Sperm or oocyte donation, in-vitro fertilization and gestational surrogacy come under ART. This Bill is yet to be passed in the Upper House (Rajya Sabha).

2 - The Surrogacy (Regulation) Bill, 2019 was introduced by the then Minister of Health and Family Welfare, in Lok Sabha on July 15, 2019 amid scathing criticism by Indian media. On 24 February, 2020, the Union Cabinet approved the Bill after making significant changes. The Cabinet approved the Bill after incorporating the recommendations of the "Rajya Sabha Select Committee" that proposed 15 major changes.

The Minister of State for Parliamentary Affairs Mr. Prakash Javedkar clarified that the Bill is only aimed at banning commercial surrogacy, allowing altruistic surrogacy. This altruistic surrogacy which was previously limited to an ambiguous term “close family member,” was after severe backlash, extended to any “willing” woman. Some of the other changes include permitting access to surrogacy for widows and divorced women in addition to infertile Indian couples. This too, is yet to be passed by the Rajya Sabha.

As a general recommendation, all surrogacy clinics should be registered. The Union/State surrogacy boards will regulate the practice. According to the Bill, a child born out of surrogacy will be considered the biological and legal child of the intended parents, and not the surrogate mother. Undertaking surrogacy for a fee, exploiting the surrogate mother will be punishable with jail for ten years and a fine of Rs. 10 lakhs (USD 13600).

Women’s bodies for sale

While it is true that Indian women have rallied against unconscionable anti-women practices and made impressive legal strides, little has translated into action. Surrogacy, among other evils like prostitution, caste-based sexual violence, marital rape, dowry and honor killings, has become a divisive topic. Lobby groups are gaining ground under the veneer of economic independence and choice. Such groups have managed to overturn even the rudimentary protective measures for marginalized vulnerable groups. It is also why these “choice” lobbyists vilify any dissenting voice that could swerve their avaricious agenda.  The state’s silence in regards to women’s sex based rights has been deafening, and it is therefore complicit in advancing the agenda of the aforementioned lobbyists.

India, along with Ukraine and Mexico was left in limbo during the first lockdown, thousands of surrogate babies were, and remain, unclaimed. Yet some of the popular fertility clinics in India made the most of the pandemic- raking in profits due to the extra days children stayed in the hospital waiting for their parents. Dr. Nayana Patel of the swanky, upscale Akanksha IVF and Fertility clinic in Anand, Gujarat believes surrogacy could “boost the economy” and is rather miffed about the parliamentary recommendations. “Instead of banning compensated surrogacy, India should open it up once more to everyone including OCIs (Overseas Citizens of India),” she said on a city-based news channel.

While it may seem like some of the proposed changes to the Surrogacy Bill are in favor of the mothers, India has a reputation of having its laws fall through the cracks of bureaucracy and corruption. Those who will bear the brunt will undoubtedly be the surrogate mothers. Not only are the existing systems a flagrant violation of women’s human rights, if the Bill passes in the Rajya Sabha, the entire industry could potentially go “underground.”

“A uterus does not make a mother, a loving heart does.” - an Indian trans-identifying man


During her research, Dr. Saravanan has also encountered “agents;” hospital nurses, or women who were surrogate mothers at some point. These women can’t go through with the procedure again for whatever reason, so they turn into pimps who scout families and canvass them into a deal. For bringing such mules in, they get a commission right after the delivery. Since their commission is dependent on the completion of the “deal” - ensuring delivery of a healthy child and handing it to the intended parents - they double down on the surrogate mothers to adhere to militant protocols and unreasonable routines.

Since the surrogacy business model is now in jeopardy due to the ban, Dr. Saravanan fears that it will continue outside the periphery of the law. Even when the ban wasn’t imposed, intended parents have revoked contracts for many reasons; a couple reneged on their agreement because they were getting a divorce, another pair chose only one of the delivered twins, and multiple people refused to take a child born with a disability or sickness. They got away with it because the Indian law couldn’t hold foreign nationals accountable. There were also cases of abandonment because the country of the intended parents does not recognize surrogacy as a legal mode to parenthood rendering the children stateless.

Countries like India and Thailand, where the market was once booming, have been forced to make the laws more stringent as commercial surrogacy was previously accessible to foreign nationals. Since there is no scrutiny over the criminal history of foreign intended parents, several instances of child sexual abuse surfaced in the news. In two such cases, the “fathers” were convicted sex offenders.

If this is the state of affairs when surrogacy is seemingly under the purview of the criminal justice system, I shudder to think what this ban is about to unearth. Children from ordinary families are already trafficked into the organ and sex trades, so what will happen to the abandoned surrogate children under organized crime? Since the demand for surrogate babies continues to boom, now by newer demographics like trans-identified men, illegal mafias will seize the market in women’s bodies- just like they do when they traffic and prostitute women in India.

Is surrogacy an LGBT issue?

The recommended changes to the Surrogacy Bill, especially those affecting the LGBT community, were met with scorn. Passionate long forms appeared online, arguing said changes to be archaic and unrealistic. This sort of reaction is not unique to India as many men worldwide lament their “social infertility” as a barrier to having families. For gay families in the West, there is also a matter of affordability. State Representative Liz Linehan is joining hands with surrogate organisations set up by gay men in the US and wants to make it accessible for everyone. “[Surrogacy] is also a fiscal issue, this is also about fiscal injustice. How will young L.G.B.T.s form families if they cannot afford it?” said Ms. Linehan. When wealthy white nations advocate for “affordable” surrogacy (fertility care) as if they are owed a womb at any cost, the weight is going to fall entirely on poor and marginalized women.

Julie Bindel, noted feminist from the UK did an in-depth study of the Indian surrogate market that caters to foreign couples, explaining in gruesome detail the terrible conditions in which clinics function. She talked of the lack of agency of surrogate mothers who are merely “vending machines” popping a baby out when you insert some coins. Despite being a lesbian, by actively opposing the inhuman practice of surrogacy, Bindel has been branded “homophobic” by many within the LGBT community. Yet, she categorically states that surrogacy is not a gay rights issue – it is a women’s rights issue. In a letter she co-wrote with Gary Powell for the Stop Surrogacy Now website, she writes:

“our community is leading the way now in normalizing, sanitizing, and destigmatising this practice. Those who are proposing that surrogacy should be legalized, using the arguments of ‘gay rights’ and equality, are subverting the core aims of the gay liberation movement, which is about dignity and respect for all, and not the abuse of other people’s rights.”

I face extreme social media abuse and general resistance from Indian liberals for pointing out the same. In addition to the accusations of homophobia, I have been called a TERF because I stand up for women’s sex-based rights. Surrogacy, as helpful as it may be for enabling gay/trans-indentifying men to have families, must not be utilized at the expense of women. “Caution should be exercised when we speak about surrogacy as an option for solving people's desires to have children, it overlooks the broader aspects of reproductive justice,” said Dr. Saravanan. Calling surrogacy a women’s human rights violation, she pointed out that:

“The right to reproduction should be limited to oneself and cannot be extended to the right of anyone who aims to put another human being’s life and health at risk. ‘Reproductive Justice’ aims to reduce inequalities and not to exploit a woman in the name of reproductive liberty.”

It wasn’t until 2018 that homosexuality was decriminalized in India; a tiny step towards the long-drawn battle for same sex marriage, inheritance of property, and civil rights. Similarly, Transgender Persons (Protection Of Rights) Act, 2019 was passed soon after to provide protections for “transgender” persons and their welfare. In a callous attempt to pin surrogacy to LGBT civil rights, activists and media are claiming that denying surrogacy amounts to a violation under the aforementioned laws. There is no avenue for discussing issues concerning women and girls in India without it becoming about men. The same group of people who rage on social media about the growing violence against women turn a blind eye to issues like this. The demand for women’s bodies is singularly created by men and a patriarchal society that services men. So it comes as no surprise that most urban, educated women hide behind the guilt of their privilege and parrot the same “choice and empowerment” manspeak.

The media does not portray the many painful stories of surrogate mothers who weep for the child that was plucked away. “I was still under sedation when they removed the baby. I never set eyes on it. I have no idea whether it's white or black, whether it's Indian or foreigner, I don't even know whether it's a boy or a girl,” Sumathi, a mother of four children, said of her surrogate baby. Sumathi spent three sleepless months after giving birth, thinking about her surrogate child and needed medication to regain her composure.

When the media champion celebrities announcing the arrival of their newborn, we don’t read about the likes of Sumathi. Full of hormones, injected with all sorts of medications to stop her lactating—or they demand that she pumps the milk, leaving her recovery up to the passage of time. A mere vessel that could be discarded after use, who would want to hear about her agony when she has made a “choice” and was "compensated” after all?

The long road to neverland

Indian feminists like me battle with two anti-women warring factions at the same time. The liberal feminists and the trans rights activists on the one side, and an extremist, regressive, fascist government on the other. The fight to secure women’s rights has become a political position in itself, devoid of the traditional allegiance to the left or right. While a growing number of young feminists are speaking up against the harms of surrogacy, prostitution and the many other forms of sex-based violence, an equally large number of women succumb to the "choice" model. During the COVID lockdown, a significant number of young working professionals opted to sell eggs (oocytes) to make up for salary cuts or job loss.

In a patriarchal capitalist market that feeds on women’s bodies, there is very little wiggle room for women to speak, let alone be heard. So, the fundamental goal of any women’s rights movement should be to empower women to make healthy, safer decisions, rather than further disenfranchise them with the fallacy of “choice.”


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SurrogacyIndia

Vaishnavi Sundar

Vaishnavi Sundar is an independent filmmaker, feminist, writer, and women's rights activist from Chennai, India.