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The Business and Ethics of Surrogacy

The Business and Ethics of Surrogacy

The Draft Assisted Reproductive Technology Regulation Bill and Rules (2008) intends to regulate an "industry" in India that has been expanding by leaps and bounds, mainly on account of a growing demand by foreign couples in search of relatively cheap surrogacy arrangements. This commentary argues that there has been next to no public debate on the ethical, social and medical questions around infertility and surrogacy in our context, and makes a beginning in this direction. Thanks to pressure from women's groups the draft has now been placed on the web site of the Indian Council of Medical Research for comments.

COMMENTARY

The Business and Ethics of Surrogacy

Imrana Qadeer, Mary E John

Whatever its intentions, the draft bill does not seriously engage with minimising misuse and malpractice on the part of service providers, nor does it protect the health and well-being of the most vulner able parties – the surrogate mother and the baby born of such arrangements. Our comments

The Draft Assisted Reproductive Technology Regulation Bill and Rules (2008) intends to regulate an “industry” in India that has been expanding by leaps and bounds, mainly on account of a growing demand by foreign couples in search of relatively cheap surrogacy arrangements. This commentary argues that there has been next to no public debate on the ethical, social and medical questions around infertility and surrogacy in our context, and makes a beginning in this direction. Thanks to pressure from women’s groups the draft has now been placed on the web site of the Indian Council of Medical Research for comments.

Imrana Qadeer (imranaqadeer@gmail.com) and Mary E John (maryj@cwds.ac.in) are at the Centre for Women’s Development Studies, New Delhi.

S
urrogacy has recently become front page news. First there was the uncertain future of baby Manji, following the divorce of her Japanese commissioning parents. Then the happy pictures of an Israeli gay couple with their son born to a Mumbai-based surrogate mother.

India is becoming a cheap location for foreigners wanting to use “assisted reproductive technologies” (ART) and local clinics are promoting surrogacy arrangements because they are seen as lucrative ventures. There has been hardly any public debate on the ethical, social, epidemiological and medical questions around infertility and surrogacy. It is only thanks to pressure from women’s and health organisations that the Ministry of Health and Family Welfare (MOHFW) and the Indian Council of Medical Research (ICMR) recently agreed to put on their web site the Draft ART Regulation Bill and Rules (2008) meant to regulate this new and growing business.

One can appreciate the fact that the Health Ministry and the ICMR were dealing 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 as nine pregnancies, not counting a s urrogate mother’s own children. And this from the very same ministry that is responsible for women’s reproductive health!

here on the sections concerning surrogacy are meant to stimulate a wider debate, which should form a basis for more detailed critiques of the proposed law. Interested readers are encouraged to look up the bill and rules on the web sites of the MOHFW and ICMR (http://icmr.nic.in/art/draft_art.htm). A set of comments and suggestions sent to the Union Minister of Health and Family Welfare by Sama Resource Group for Women and Health, New Delhi has also been circulated recently (email: sama. womenshealth@gmail.com).

Surrogacy in the Indian Context

To understand surrogacy in the Indian

context, one must begin with the fact that,

while the Transplantation of Human

Organs Act, 1994 banned the sale of

human organs, organ loaning – an equally

difficult and risky venture – is being pro

moted through paid surrogacy. This is due

to a medical industry that welcomes prof

itable international ventures like “repro

ductive tourism”, even when infertility

constitutes a small segment of domestic

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

l evels 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,

the probability of multiple pregnancies

and the high possibility of foetal abnor

malities – instead they promote false and

january 10, 2009

EPW
Economic & Political Weekly

COMMENTARY

unethical claims to lure clients. Though We must also imagine for ourselves the the bill prohibits clinics from advertising, complex psychological and emotional

it neither foresees the newer forms that publicity will take nor specifies what kinds of information should be made public by the regulatory agencies proposed. One can therefore expect that the unreliable and even false promotional advertising currently in evidence will continue.

The starting point for tackling the question of surrogacy lies in recognising that this new technology splits up older notions of natural reproduction into three parts – “social” parents, a gestational mother, and the genetic matter that links the first two. While it is usually the case that one or both of the subsequent social parents are also donors of gametes, the possibility cannot be ruled out that both egg and sperm donation are from other sources. There is already considerable literature on the risks of egg donation for women, and their potential exploitation within ARTs more generally, but the bill does little to protect such oocyte donors. The draft bill is quite clear, though, in prohibiting the surrogate from being an egg donor (which would open up the possibility of artificial insemination and therefore make procedures much simpler, safer and cheaper), even in a situation where the future mother cannot provide them. Do we see this as a means to reduce the surrogate mother’s “rights” to the baby, or rather as a way to promote the role of the clinics? Why not permit genetic surrogacy? Clearly, the current mode of advancing surrogacy arrangements increases the number of “stakeholders” and their possible conflicts of interest – the “commissioning” parents; the surrogate mother; her family, if any; the new baby; and the commercial sperm banks and ART clinics.

Ethical Practice

Ethical practice must take its cue from the experiences of surrogate mothers, who – motivated primarily by a shortage of personal income – often endure the social stigma associated with surrogacy. They may leave their homes, lie about the parentage and claim the death of the baby after it has been handed over. It should go without saying that in such a stigmatised environment, it is not easy to gain access to surrogate mothers or their families.

implications where the surrogate mother already has children. Since this is the most likely scenario, difficulties are bound to be created by the absence of transparency, where surrogate pregnancies are treated differently from “normal” ones.

Given this situation, the State must strive to help create an environment free of secrecy and anonymity. As equality and volunteerism may be rare in surrogacy agreements, arrangements to ensure informed consent, proper counselling and legal assistance for drawing up contracts for safe procedures, as well as total healthcare insurance and compensation, must be ensured through the state regulatory institutions proposed in the bill. A surrogate mother should not only have the right to abortion but also to keep the baby if she cannot part with it. Her name should be on the baby’s birth certificate and parentage legally transferred to the new parents later. Her family should be aware of the contracting parents and be included in healthcare arrangements. In its current form, the draft does not ensure that the future parents recognise and agree that a surrogate mother must have all the rights of autonomy, privacy and bodily integrity that are legally available to women both locally and internationally. Instead, the draft consent forms demand not just the written agreement of a surrogate and her husband, but the declaration that neither of them has engaged in extra-marital sexual relations in the last six months!

Today, ART markets as well as the State emphasise relationships of blood and the genetic basis of paternity, marginalising the essential social and biological contribution of nurturing children in an enabling environment. Is it ethical to use prevailing social constraints that prevent open surrogacy arrangements to promote the business of surrogacy and ART? The amount of compensation given to the surrogate mother is another particularly difficult aspect when what is involved is the creation of life – a baby no less. Its value has to be universally uniform as a product of the procreative power of women and not of social labour that varies in value and creates commodities. It is telling that in the west up to 50% of the total cost goes

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Economic Political Weekly

EPW
January 10, 2009

COMMENTARY

to the surrogate mother while in India most of the money is appropriated by sperm banks, ART clinics and lawyers. The bill leaves the amount of compensation to the private contract between the surrogate and the commissioning parents – two unequal parties. It also ignores the role of semen banks and the clinic in the matter till date and offers no mechanisms of legal support to the surrogate mother in getting a fair contract. Given the surrogate’s relative socio-economic vulnerability, the absence of safeguards is glaring in a situation governed by India’s relative “cheapness” and the search for profits by the agencies involved.

Baby’s Rights and Parents’ Duties

There is also an in-built bias against the newborn baby as the surrogate mother is constrained to underplay her bond with the growing baby from the beginning. Early separation is at the cost of the baby’s immunological and psychological health. The baby is denied the right to breastfeeding even for three months. This aspect is completely ignored, with the burden of surrogacy being shifted to one who cannot protest. Every child born through ART, whether disabled or one of a multiple pregnancy must have the same rights of survival and care as any other child. The proposed right of social parents to ask for “pregnancy reduction” goes against this, and only adds to the risks involved to both the mother and the foetus. Moreover, where the future parents are from another country and commission the process through intermediary agencies and local guardians, the bill has nothing to say about the safety of the child or any requirement of follow-up. This fails to tackle the problem of what happens when 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 will supervise the monitoring of the surrogate mother during pregnancy) are simply unacceptable. Rather, there is the opportunity here of involving all parents – whether heterosexual, gay or lesbian – equally, thus challenging patriarchal and biologistic notions of mothering. Same sex couples and single parents in India must also be eligible for surrogacy. The bill permits surrogacy only for “couples”, whether married or unmarried, who are recognised as such in their countries of residence – thus excluding same sex couples in India. Moreover, the long-standing demand that adoption laws be amended so that all religious groups can adopt must be addressed.

ART is widely promoted for its scientific potential in stem cell research and cloning. The proposed bill, too, defines surrogacy as “a pregnancy achieved in furtherance of ART” and, therefore, does not address unethical practices and exploitation sufficiently. We must debate these issues: How are the interests of the baby to be best protected? What are the rights of the surrogate mother? What should be the role of the adopting parents? Such a public debate is long overdue and will help evolve healthy and just policies and laws. This is particularly necessary in a country with diverse views regarding surrogacy and with such negative orientations towards infertility. It is noteworthy that there are differences among feminists too, with some being in favour of banning surrogacy altogether, while others see it as a chance to break the ideological stranglehold of the traditional heterosexual family. Nevertheless, there is consensus on two basic issues – that adoption should be encouraged, and that the eugenic tendencies of genetic manipulation should be questioned.

When societies change rapidly, prevailing ethical norms are challenged by new knowledges and the conflicts arising from transformed practices. Ethical thinking is not a linear process, but a z igzag of contested ideas and interests, in which social responsibility, dignity and well-being must all find a place. S urrogacy should be seen as an opportunity to strengthen and widen our d eepest ethical concerns by questioning patriarchal norms of the family and the s tig matisation of infertility. At the very least, its miraculous potential should not be used to reinforce regressive ideas about blood and inequality or rationalise it as a way to address women’s economic marginalisation.

Indira Gandhi Institute of Development Research, Mumbai

Project on Trade, Agricultural Policies and Structural Changes in India’s Agrifood System

The Indira Gandhi Institute of Development Research, Mumbai invites applications for a project fellow (one position) for the project ‘Trade, Agricultural Policies and Structural Changes in India’s Agri-food System’ (TAPSIM). The tenure for this position will be for one year extendable by one more year.

Qualification: Applicants must have a Ph.D. in Economics, preferably in agricultural economics. The candidate should have empirical background with skills in econometrics and other quantitative techniques. The applicant should be under 35 years of age.

Remuneration: Consolidated amount of Rs. 40,000/ per month (inclusive of all). May get revised along with faculty pay revision.

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:

Registrar, Indira Gandhi Institute of Development Research, Gen. Vaidya Marg, Goregoan (East), Mumbai – 400 065 Email: tvs@igidr.ac.in

january 10, 2009

EPW
Economic Political Weekly

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