The Business and Ethics of Surrogacy

Author(s): Imrana Qadeer and Mary E. John

Source: Economic and Political Weekly , Jan. 10 - 16, 2009, Vol. 44, No. 2 (Jan. 10 - 16,
2009), pp. 10-12
Published by: Economic and Political Weekly

Stable URL: https://www.jstor.org/stable/40278374

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 Whatever its intentions, the draft bill
The Business and Ethics does not seriously engage with minimising
misuse and malpractice on the part of serv-
of Surrogacy ice providers, nor does it protect the health
and well-being of the most vulnerable par-
ties - the surrogate mother and the baby
IMRANA QADEER, MARY E JOHN
born of such arrangements. Our comments
here on the sections concerning surrogacy
The has recently
Draft become front
Assisted are meant to stimulate a wider debate, Reprod
which should form a basis for more detailed
Technology Regulation Bi
Surrogacy
tain pageManji,
future of baby news. First there was the uncer-
following critiques of the proposed law. Interested
Rules (2008) intends
readers are encouraged to look up the bill
to re
the divorce of her Japanese commission-
an "industry"
ing parents. Then the happy pictures of an in
and rules on the web sitesIndia
of the mohfw and tha
been expanding
Israeli gay couple with their son born to a by
icmr (http://icmr.nic.in/art/draft_art.htm) . leaps
Mumbai-based surrogate mother. A set of comments and suggestions sent to
bounds, mainly on accoun
India is becoming a cheap location for the Union Minister of Health and Family
a growing demand
Welfare by Sama Resource Group for
by for
foreigners wanting to use "assisted repro-
couples ductive technologies"
in search
(art) and local clinics of
Women and Health, New Delhi has also relati
cheap surrogacy
are promoting surrogacy arrangements been circulated recentlyarrangem
(email: sama.
because they are seen as lucrative ventures. womenshealth@gmail.com) .
This commentary argues
There has been hardly any public debate
there has been next
Surrogacy in the Indian Context to no
on the ethical, social, epidemiological and
debate on
medical questions around infertility the
and ethical,
To understand surrogacy in the Indian soc
and medical
surrogacy. It is only thanks to pressure questions
context, one must begin with the fact that, aro
from women's and health organisations while the Transplantation of Human
infertility and surrogacy in
that the Ministry of Health and Family Organs Act, 1994 banned the sale of
context, and
Welfare (mohfw) and the Indian Council
makes
human organs, organ loaning - an equally
a beg
in this direction. Thanks
difficult and risky venture - is being pro-
of Medical Research (icmr) recently agreed
to

pressure from
to put on their web site the Draft art
Regulation Bill and Rules (2008) meant to
the draft has
regulate this new and growing business.
on the web
One can appreciate the fact that the
CouncilHealth Ministry
of and the icmr were dealing
Medical
constitutes a small segment of domestic Researc
for comments.
with a complex and many-sided issue. It is
certainly not easy to design a law that will
regulate commercially driven clinics and
curb the exploitation of vulnerable parties,
while at the same time enabling childless
people to experience the joys of parenting.
However, in its current form, the bill barely
addresses several important concerns and
ignores national health and population
norms. To take but one example, in spite of
the punitive application of a two-child
norm in other contexts, the bill permits
three surrogate pregnancies for a woman.
A closer inspection of the procedures
involved reveals that it actually permits up
to three cycles for attempting a pregnancy
per couple, which would add up to as many
Imrana as nine pregnancies, not counting a
Qadeer
and Mary E
surrogate John
mother's own children. And this
the Centre
from the veryfor
same ministry that is responsi-
New Delhi.
ble for women's reproductive health!
moted through paid surrogacy. This is due
women's g
to a medical industry that welcomes prof-
now been p
itable international ventures like "repro-
site of the Ind
ductive tourism", even when infertility
priorities. The incidence of total infertility
in India is estimated at 8 to 10%, and for
the vast majority of Indian women it is
preventable as it is caused by poor health,
nutrition, maternity services and high
levels of infections. Only about 2% of
Indian women suffer from "primary"
infertility which is amenable to art alone.
Moreover, it is further reported that
among the cases of women who come for
art treatment, barely 1% require surro-
gacy assistance.
Because art amplifies deep-seated
notions of "blood", now bolstered by
genetics, it tends to overshadow safer,
cheaper and more progressive options like
adoption, art clinics do not provide relia-
ble information about low rates of success,
(imranaqadeer@gm
the probability of multiple pregnancies
(maryj@cwds.ac.in
Women's Developme
and the high possibility of foetal abnor-
malities - instead they promote false and

10 January 10, 2009 CEE3 Economic &Political weekly

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 COMMENTARY

unethical claims to lure clients. Though

We must also imagine for ourselves the
complex psychological and emotional
the bill prohibits clinics from advertising,
it neither foresees the newer forms that
MANOHAR
implications where the surrogate mother
already has children. Since this is the most
publicity will take nor specifies what kinds
of information should be made public likely
by scenario, difficulties are bound to be TERRITORY, SOIL AND SOCIETY IN
SOUTH ASIA
the regulatory agencies proposed. Onecreated by the absence of transparency,
Daniela Berti and Gilles Tarabout (eds)
can therefore expect that the unreliable
where surrogate pregnancies are treated
978-81-7304-782-4, 2009, 379p. Rs. 950
and even false promotional advertising
differently from "normal" ones.
currently in evidence will continue. Given this situation, the State must EXPANDING PORTUGUESE EMPIRE
AND THE TAMIL ECONOMY
strive to help create an environment free
The starting point for tackling the ques-
tion of surrogacy lies in recognising that (Sixteenth-Eighteenth Centuries)
of secrecy and anonymity. As equality and
S. Jeyaseela Stephen
volunteerism may be rare in surrogacy 978-81-7304-802-9, 2009, 360p. Rs. 895
this new technology splits up older notions
of natural reproduction into three parts -
agreements, arrangements to ensure
informed consent, proper counselling andBREAKING BOUNDARIES WITH THE
"social" parents, a gestational mother, and
GODDESS
the genetic matter that links the first two.
legal assistance for drawing up contracts for
New Directions in the Study of
While it is usually the case that one safe
or procedures, as well as total healthcare Saktism
insurance and compensation, must be Cynthia Ann Humes and Rachel Fell
both of the subsequent social parents are
also donors of gametes, the possibility
ensured through the state regulatory insti- McDermott (eds)
cannot be ruled out that both egg and tutions proposed in the bill. A surrogate 81-7304-760-2, 2009, 386p. Rs. 995
sperm donation are from other sources.
mother should not only have the right to MARGA
There is already considerable literature abortion
on but also to keep the baby if sheWays of Liberation, Empowerment,
the risks of egg donation for women, and cannot part with it. Her name should be and Social Change in Maharashtra
their potential exploitation within arts on the baby's birth certificate and parent-M. Naito, I. Shima and H. Kotani (eds)
more generally, but the bill does little to 81-7304-762-6, 2008, 474p. Rs. 1175
age legally transferred to the new parents
protect such oocyte donors. The draft bill
later. Her family should be aware of the PEOPLE OF THE JANGAL
contracting parents and be included in
is quite clear, though, in prohibiting the Reformulating Identities and
surrogate from being an egg donor (which
healthcare arrangements. In its current Adaptations in Crisis
Marine Carrin and
form, the draft does not ensure that the
would open up the possibility of artificial
Herald Tambs-Lyche (eds)
insemination and therefore make proce-
future parents recognise and agree that a 81-7304-582-8, 2008, 301 p. Rs. 750
dures much simpler, safer and cheaper),
surrogate mother must have all the rights
even in a situation where the future of autonomy, privacy and bodily integrityAN ENCOUNTER OF PERIPHERIES
mother cannot provide them. Do we seethat are legally available to women both Santals, Missionaries, and their
Changing Worlds, 1867-1900
this as a means to reduce the surrogate
locally and internationally. Instead, the
Marine Carrin and Herald Tambs-Lyche
mother's "rights" to the baby, or rather asdraft
a consent forms demand not just the 81-7304-755-3, 2008, 386p. Rs. 975
way to promote the role of the clinics?
written agreement of a surrogate and her
husband, but the declaration that neitherPIED PIPERS IN NORTH-EAST INDIA
Why not permit genetic surrogacy?
Bamboo-flowers, Rat-famine and the
Clearly, the current mode of advancing
of them has engaged in extra-marital sexual
Politics of Philanthropy (1881-2007)
surrogacy arrangements increases the
relations in the last six months!
Sajal Nag
number of "stakeholders" and their possi-Today, art markets as well as the State 81-7304-311-6, 2008, 307p. Rs. 780
ble conflicts of interest - the "commission-
emphasise relationships of blood and the
POPULAR RELIGION AND ASCETIC
ing" parents; the surrogate mother; her
genetic basis of paternity, marginalising PRACTICES
family, if any; the new baby; and the com-
the essential social and biological contri- New Studies on Mahima Dharma
mercial sperm banks and art clinics. bution of nurturing children in an ena- Ishita Banerjee Dube and
Johannes Beltz
bling environment. Is it ethical to use pre-
Ethical Practice 81-7304-756-1, 2008, 253p. Rs. 695
vailing social constraints that prevent
Ethical practice must take its cue from the surrogacy arrangements to promote
open RECONSTRUCTING IDENTITIES
experiences of surrogate mothers, who
the -business of surrogacy and art? The Tribes, Agro-Pastoralists and
motivated primarily by a shortage of amount
per- of compensation given to the sur- Environment in Western India
sonal income - often endure the social Nandini Sinha Kapur
rogate mother is another particularly dif-
81-7304-769-3, 2008, 202p. Rs. 520
stigma associated with surrogacy. They ficult aspect when what is involved is the
may leave their homes, lie about the par- creation of life - a baby no less. Its value
for our complete catalogue please write to us at:
entage and claim the death of the baby has to be universally uniform as a product
after it has been handed over. It should go of the procreative power of women and
without saying that in such a stigmatised not of social labour that varies in value
environment, it is not easy to gain access and creates commodities. It is telling that
to surrogate mothers or their families. in the west up to 50% of the total cost goes

Economic & Political weekly USES January 10, 2009 11

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CÒMMENTARY~==^z=zzi

to the surrogate mother

biologistic notions of mothering. Same sex while
noteworthy that in India
there are differences
most of the couples
money is
and single parents appropriated
in India by
must among feminists too, with some being in
sperm banks, also
art clinics
be eligible for surrogacy. The and lawyers.
bill per- favour of banning surrogacyThe
altogether,
bill leaves themits
amount ofwhether
surrogacy only for "couples", while others see it as a chance to break
compensation to the
the private contract
married or unmarried, between
who are recog- ideological the
strangleholdsurro-
of the traditional
gate and thenised as such in their countries of resi-
commissioning heterosexual
parents family. Nevertheless,
- two there
unequal dence -It
parties. thus excluding
alsosame sex couplesis consensus
ignores the on two basic
role issues - that
of
semen banks and the clinic in the matter in India. Moreover, the long-standingadoption should be encouraged, and that
till date and offers no mechanisms of legal demand that adoption laws be amended
the eugenic tendencies of genetic manip-
support to the surrogate mother in get- so that all religious groups can adopt mustulation should be questioned.
ting a fair contract. Given the surrogate's be addressed. When societies change rapidly, prevail-
relative socio-economic vulnerability, the art is widely promoted for its scientific ing ethical norms are challenged by
absence of safeguards is glaring in a situa- potential in stem cell research and clon- new knowledges and the conflicts arising
tion governed by India's relative "cheap- ing. The proposed bill, too, defines surro- from transformed practices. Ethical
ness" and the search for profits by the gacy as "a pregnancy achieved in further- thinking is not a linear process, but a
agencies involved. ance of art" and, therefore, does not zigzag of contested ideas and interests,
address unethical practices and exploita- in which social responsibility, dignity
Baby's Rights and Parents' Duties tion sufficiently. We must debate these and well-being must all find a place.
There is also an in-built bias against the issues: How are the interests of the babySurrogacy should be seen as an oppor-
newborn baby as the surrogate mother is to be best protected? What are the rights tunity to strengthen and widen our
constrained to underplay her bond with of the surrogate mother? What shoulddeepest ethical concerns by questioning
the growing baby from the beginning. be the role of the adopting parents? Such patriarchal norms of the family and the
Early separation is at the cost of the baby's a public debate is long overdue and stigmatisation of infertility. At the very
immunological and psychological health. will help evolve healthy and just policies least, its miraculous potential should
The baby is denied the right to breastfeed- and laws. This is particularly necessarynot be used to reinforce regressive
ing even for three months. This aspect is in a country with diverse views regard-ideas about blood and inequality or
completely ignored, with the burden of ing surrogacy and with such negative rationalise it as a way to address women's
surrogacy being shifted to one who can- orientations towards infertility. It iseconomic marginalisation.
not protest. Every child born through art,
whether disabled or one of a multiple
pregnancy must have the same rights of Indira Gandhi Institute of Development Research, Mumbai
survival and care as any other child. The
Project on Trade, Agricultural Policies and Structural Changes in India's
proposed right of social parents to ask for
Agrifood System
"pregnancy reduction" goes against this,
and only adds to the risks involved to both The Indira Gandhi Institute of Development Research, Mumbai invites
applications for a project fellow (one position) for the project Trade, Agricultural
the mother and the foetus. Moreover,
Policies and Structural Changes in India's Agri-food System' (TAPSIM). The tenure
where the future parents are from another for this position will be for one year extendable by one more year.
country and commission the process
Qualification: Applicants must have a Ph.D. in Economics, preferably in agricultural
through intermediary agencies and local economics. The candidate should have empirical background with skills in
guardians, the bill has nothing to say econometrics and other quantitative techniques. The applicant should be under
35 years of age.
about the safety of the child or any
requirement of follow-up. This fails to Remuneration: Consolidated amount of Rs. 40,000/ per month (inclusive of all).
tackle the problem of what happens when May get revised along with faculty pay revision.

the future parents change their mind, as
was the case with baby Manji.
The social (or future) parents, too, must
not simply be commissioning agents, but
participants in the custody and nurturing
of the baby. The current provisions in the
bill that allow for a local "guardian" (who
Time line: Applications can be sent electronically or by post to reach IGIDR by
23rd Jan. 2009. Candidates for interview will be notified by email/post by 30th
Jan. 2009. Interviews are scheduled to be held on 16th Feb. 2009. Selected
candidate is expected to join the project latest by 15 March 2009.
Application must include (1) a current curriculum vitae (2) two letters of
recommendation and (3) samples of past publications
Application should be sent to:

will supervise the monitoring of the sur- Registrar,

rogate mother during pregnancy) are sim- Indira Gandhi Institute of Development Research,
ply unacceptable. Rather, there is the Gen. Vaidya Marg,
Goregoan (East),
opportunity here of involving all parents Mumbai - 400 065
- whether heterosexual, gay or lesbian - Email: tvs@igidr.ac.in
equally, thus challenging patriarchal and

12 January io, 2009 CBC3 Economic & Political weekly

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