Emergence of the 'Surrogacy Industry'

Author(s): SNEHA BANERJEE

Source: Economic and Political Weekly , MARCH 17, 2012, Vol. 47, No. 11 (MARCH 17,
2012), pp. 27-29
Published by: Economic and Political Weekly

Stable URL: https://www.jstor.org/stable/23214649

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 COMMENTARY

how does one understand the emergence

Emergence of the of an industry which involves reproduc
tion in a market scenario?

'Surrogacy Industry' The emergence of commercial surro

gacy as an industry, which involves
heightened medicalisation of reproduc
SNEHA BANERJEE tion and the instrumental use of the
womb of a woman, merits engagement
Assisted Reproductive to understand the complexity around
actors Aamir Khan and Kiran the politics of reproduction. This article
Technologies of which
When Bollywood
Rao brought directors/
home their son seeks to contextualise the emergence of
commercial surrogacy is a
through commercial surrogacy using In surrogacy industry, highlight its multi
significant part are highly Vitro
popular
Fertilisation (ivf) in early December dimensional implications for women's re
with all those who cannot have
2on, almost all the major tv news chan productive, health and livelihood issues
nels and newspapers heralded the poten and emphasise the need for greater en
a biological child of their own
tial of surrogacy as an acceptable way for gagement by the women's movement.
and can afford this expensive
Indian childless couples to reproduce. Surrogacy, or more appropriately ges
method. However, there are The total cost of a surrogacy arrange tational surrogacy, is touted as a boon
a number of issues which this
ment in India is roughly in the range offor infertility patients as it enables them
Rs 4-12 lakh depending on the ivf clinic to have a child of their "own" with the
"industry" raises. It feeds upon
and is thus around one-third of what it help of ivf, a part of Assisted Reproduc
the patriarchal stigmatisation
costs in the us or other western coun tive Technologies (arts).
of childlessness and the tries where it is legal (Taneja 2008; The art industry in India is worth
socio-economic vulnerabilities of 2008; Kohli 2011).
Gentleman over Rs 25,000 crore and is most notable
A fundamental question is why "infer for its so-called reproductive tourism
women who rent their wombs.
tility" is such a big issue that it drives sector. According to a recent report in
The women's movement must
people to spend an insane amount of the Hindustan Times, the "industry of re
engage more with these issues. money to have a "biological" child, whileproductive outsourcing", referring par
adoption is rendered an unfortunate op ticularly to commercial gestational sur
tion of last resort or as no option at all? Arogacy in India, is "estimated to be worth
tentative answer is as follows: Within pa over [Rupees] 2,000 crore" (Kohli 2011).
triarchy, family and kinship is dependent Importantly, this industry has a some
on the purity of bloodline and people what quasi-legal status in India since
have various incentives to perpetuate there is no law regulating it but only
such a system - like property and inher some non-binding guidelines, drafted in
itance, apart from security in old age and 2002 and finalised in 2005 by the Indian
of course, the enigmatic and fragile Council of Medical Research (icmr),
"honour". When the continuity of a pure namely, the National Guidelines for Accre
bloodline is threatened, individuals areditation, Supervision and Regulation of
likely to lose out on the incentives andart Clinics in India (henceforth, the
since purity of bloodline is linked to guidelines). In cases of surrogacy that
women's sexuality and reproductivehave gone to Indian courts, the practice
functions, they are the ones who face the has not been rendered illegal despite
greatest stigmatisation, discrimination, some judges raising ethical questions
trauma and exclusion due to their "infer around it. The icmr under the Ministry of
tility". Significantly, since it is womenHealth and Family Welfare has also pre
who have a greater role in human repro pared the draft Assisted Reproductive
duction and are stigmatised variously forTechnologies (Regulation) Bill and Rules

The author would like to thank Nivedita

their role, does infertility treatment by 2010 (henceforth, draft art Bill), a modi

Menon, Bijayalaxmi Nanda and her surrogacy in a market situation improve fied version of its 2008 predecessor.
supervisor Jayati Srivastava for their the lives of women - for those who seek
comments and inputs. surrogacy services and those who pro Legal Engagement
Sneha Banerjee (snehabanerji@gmail.com) is a vide it? Moreover, against the backdropA cornerstone of legal engagement
research scholar at the School of International of the fact that reproduction - biological with surrogacy in India is the uncritical
Studies, Jawaharlal Nehru University, as well as social - has been conven acceptance of infertility as a medical
New Delhi.
problem, the so-called right to have a
tionally a part of women's unpaid labour,

Economic & Political weekly ESQ march 17, 2012 vol xlvii no 11 27

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biological child of one's own and arts as
the panacea. It is important to make
sense of legal engagement with this
issue in a situation in which constantly
North have stringent regulations around
child as her own in spite of the fact that
she was not the biological mother. Withcommercial surrogacy since the 1980s
technological innovations to deal with owing to apprehensions about com
infertility, there came techniques like modification of children and women's

evolving new reproductive technologies artificial insemination which in the casereproductive abilities thus giving rise to
are sought to be regulated by state outsourcing. India has witnessed an
of surrogacy helped mitigate the moral
machinery thereby attempting fixity emerging trend of "reproductive tour
issues to a great extent since the woman
or standardisation. The Indian state's acting as the surrogate could now get ism" for arts especially for the services
pregnant without having sex with the
attempt to regulate arts is particularly of commercial gestational surrogates.
noteworthy since it is not in tandem father of the child. However, even Arguably, there are at least three rea
with
sons for this - high quality low-cost art
artificial insemination the surrogate still
with its general approach to engage with
biological reproduction by its popula was the biological mother of the child.services provided by largely English
tion. For the State, the fertility of its popIrrespective of whether the surrogatespeaking doctors; cheap availability of
ulation has arguably been a "problem", mother was related or unrelated to the women willing to be surrogates; and,
where it strived to "control" it and latersocial family of the child, or whether shepermissive laws, thus giving rise to the
to stabilise it. Given its concentrated art industry of which commercial ges
took money from the child's social par
approach towards tackling the populaents - she remained the biological mother tational surrogacy is a part (Law Com
tion issue, whether through coercion orwhose genes were carried by the child mission of India 2009).
through a policy of incentives-disincendespite the fact that the "seed" was that With globalisation and heightened
tives, it is surprising that it looks posiof the father. marketisation various previously non
tively towards arts (John and Qadeer There was every possibility that the economic activities have become com

2009). Why does it legally engage withsurrogate mother would feel attached to modified (Peterson 2003) and transna
tionalised. It is in this context that com
technologies that seek to assist in repro the child she bore, would refuse to hand
duction since it is not to ban these tech over the child to the father and worse mercial surrogacy can be seen as an
nologies but in fact to facilitate their prostill, might stake a claim on the custody issue of political economy where the act
liferation? In spite of infertility and artsof the child. In other words, commercial of giving birth is construed as a relation of
not being a high priority health issue for surrogacy without artificial insemina exchange in the market under particular
much of the Indian population, the drafttion would effectively make the woman circumstances and arguably assumes
bill seeks to regulate it in the wake ofacting as a surrogate a "prostitute" as the form of an industry. Whether the
mushrooming art clinics with a subwell as a "baby-seller"; but if it involves milieu of transnational commercial sur
stantive transnational clientele. Thoughartificial insemination, she becomes rogacy arrangements should be seen as
not stated explicitly, the bill embodiesonly a "baby-seller". Naturally, in a patri an industry is a contested area with a
the implicit recognition by the State thatarchal setting such a practice would be prominent objection raised by Supreme
arts in India are largely being used inabhorrent, but nonetheless would con Court judges on usage of the term indus
a transnational context with risingtinue to happen clandestinely even if on try for commercial surrogacy in the Law
medical/reproductive tourism. a very small scale, since there would Commission report (Rajagopal 2009).
Surrogacy per se is not a new way ofalways be women who would choose, or However, as is evident from a prelimi
human reproduction and a surrogate be forced to act as surrogate mothers be nary survey of how these arrangements
mother used to be a woman who substi cause of their circumstances and there take place, they notionally do fit the pic
tuted the wife and bore a child for the would always be couples willing to go toture painted by an indicative definition
couple either consensually or coercivelyany length to have their "own" child. of industry as contained in the Industrial
with or without a commercial transac Disputes Act, 1948.1
tion. Surrogacy traditionally involvedInfertility Treatment Market There are very few voices that seek to
sex outside marriage that evoked variOnce human reproduction is compartknow more about the most indispensa
ous moral apprehensions and hence surmentalised into egg and/or sperm donable stakeholder in the issue - the woman
rogacy remained clandestine just liketion, conception in laboratory, and geswho acted as the commercial gestational
tation in a surrogate womb, it is possiblesurrogate. To suggest probing about that
many other practices which are generally
considered "immoral" but flourish none also to geographically separate eachwoman is certainly not to demand flout
theless like pornography, prostitution,component which are potentially transing of confidentiality regarding her iden
nationally commodifiable. This hastity. It is to know more about the nature
incest (abusive or consensual) and paedo
given rise to an emerging market of inof the arrangement - the payment she
philia. However, the case of surrogacy is
slightly different from the other examfertility treatment with potential inreceived, the pre- and post-childbirth
ples cited above since it involved repro
come for art clinics, egg/sperm donorshealthcare she is getting, and her caste
duction where the child is regarded
and women who agree to become comclass-religion-ethnicity profile. Many
mercial gestational surrogates. Signileading art clinics also run hostels for
a legitimate biological offspring of the
ficantly, most countries in the globalwomen acting as surrogates for the course
father and the social mother accepts the
28 march 17, 2012 vol xlvii no ii E253 Economic & Political weekly

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 COMMENTARY

and all
of their pregnancy under the supervision the arrangements happen in dichotomy. However, whether women
of the doctors and technicians (Pande
mere good faith. make an informed choice regarding
2010). While the express reason is to en what gestational surrogacy means for
Conclusions
sure good care and a healthy diet for their overall health and well-being
them, the implicit reason is to keep In needs
order to critically engage with
these thisto be understood. Of course,
"poor" women under surveillance"industry"
so as that cashes in on the there are scholars and researchers who
patriar
to put apprehensions of any kind of stigmatisation of childlessness
chal have and
identified probable directions for
thewon
breach of contract, at bay and one socio-economic vulnerabilities of an engagement with these issues by
women,
ders at the degree of coercion that can the voices of such women need the movement but a lot still remains to
to be recovered. In order to understand
possibly be involved in such arrange be explored.
ments of physical confinement. whether infertility treatments including
These are important issues to critique
the phenomenon of surrogacy in a mar NOTE
the range of livelihood choices available
ket situation improve the lives of women i According to the Clause 2(j) of this Act, an "in
dustry" means "any business, trade, under
for women in globalised India since act as buyers or sellers of reproduc
whether
taking, manufacture or calling of employers
ing as a commercial gestational surro
tive services, it is important that femi and includes any calling, service, employment,
handicrafts or industrial occupation or avoca
gate is a choice that women mostlynists
make and the women's movement en
tion of workmen".
in the face of economic hardship. gage
Howwith the issue on at least two
fronts.
ever, a woman's volunteering to act as a First, advocacy related to the
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Economic & Political weekly 1833 march 17, 2012 vol xlvii no 11 29

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