COMMENTARY

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

Economic Political Weekly

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.

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