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Commercial Surrogacy: Neocolonialist Enslavement or Lucrative Livelihood?

February 1, 2020
Commercial Surrogacy: Neocolonialist Enslavement or Lucrative Livelihood?
									    
IMAGE SOURCE: INDIEGOGO
Doctors can implant up to as many as seven embryos at a time, thus increasing the surrogate’s risk of high blood pressure, diabetes, and postpartum bleeding.

After legalizing commercial surrogacy in 2002, India banned it for foreigner consumers in 2015, and in July 2019 introduced the Surrogacy (Regulation) Bill to the Lok Sabha–the lower house of India's bicameral Parliament–to ban commercial surrogacy for all. 

Such moves are seen as a significant step forward in women regaining control of their bodies, as commercial surrogacy in developing countries is rife with undertones of neocolonialism and slavery, and beset by ghastly medical malpractices.

Commercial surrogacy in India was first legalized in 2002 in collaboration with the Indian Council of Medical Research and the National Academy of Medical Science, who argued that it provided childless couples with the opportunity to become parents. Reproductive tourism soon became a highly profitable industry, with a 2012 United Nations study estimating that 3,000 fertility clinics across the country brought in over $400 million per year in what became a $2 billion industry.

However, in 2015, the Ministry of Health and Family Welfare declared that commercial surrogacy would be available to “Indian married infertile couples only” in response to a growing sentiment against the ‘rent-a-womb’ exploitation in the industry. 

Foreigners seeking commercial surrogacy in developing countries has strong undercurrents of neocolonialism. Rich foreigners travel to poor countries to subordinate women of color, and, in doing so, commodify their bodies as resources to exploit. American surrogates, for example, receive $59,000 to $80,000; in comparison, their Indian counterparts receive between $2,500 and $8,000. Thus, the financially–and legally in Canada, Denmark, New Zealand, the UK, Australia, Bulgaria, France, Germany, Italy, Portugal, and Spain–prohibitive nature of surrogacy in Western countries fuels the rise of reproductive tourism in the Global South, where women’s relatively more inexpensive wombs are used to satisfy Western demand. 

This leads into arguments that commercial surrogacy is not only neocolonialist but also the enslavement of women as it essentially puts a price on their bodies. If one assumes that the value of something is what someone is willing to pay for it, by flocking to developing countries for cheaper alternatives, Westerners tell women in developing countries that their lives and bodies are worth less than those of Western women. It is telling that the same Western countries that disallow their women from being commercial surrogates allow their citizens to purchase surrogates in developing countries. Moreover, it perpetuates the notion that women can be bought in the first place. 

In fact, it entrenches a patriarchal and misogynist marketplace and society in which women’s reproductive rights and freedoms are sold to the highest bidder, and in which women’s ownership of their own bodies is at the mercy of others. 

Aside from the neocolonialist, slavelike, patriarchal, and misogynistic forces guiding commercial surrogacy, the industry is saddled on the back of disquieting medical malpractices. 2012 World Bank data reveals that over 800 women die from “pregnancy-related causes during pregnancy, childbirth, and postpartum” every day. Of these, 99% occur in developing countries, with 29% taking place in South Asia. While some of the risks faced by that 29% are mitigated by the fact that consumers of commercial surrogacy pay for a higher quality of medical care, the practice itself is laden with dangers. 

During in vitro fertilization (IVF) procedures, doctors recommend implanting more than one egg at a time in order to increase the probability of one of them developing into a fetus. This leads to a vastly disproportionate number of multiple births compared to non-IVF pregnancies. The maternal morbidity rate is significantly higher in multiple-birth pregnancies than single-birth pregnancies. Multiple gestation pregnancies endanger both the fetuses and the mother by placing increased pressure on the mother’s liver, kidneys, and thyroid. IVF raises the possibility of premature births by up to 80%, and mothers of preterm babies report greater anxiety, fatigue, and post-natal health problems.

Aside from the severe medical risks, there is also an egregious withholding of information from the surrogates. A 2015 study revealed that surrogates could not “explain the risk from having multiple embryos placed in their uterus, or having a fetal reduction or a Cesarean section”. It further found that doctors don't ask surrogates how many embryos they can transfer and don’t inform how many they will transfer because, by their own admission, they view them as “illiterate, uneducated girls”. 

Doctors can implant up to as many as seven embryos at a time, thus increasing the surrogate’s risk of high blood pressure, diabetes, and postpartum bleeding. Fetal reductions are done according to the consumers' interests and at the expense of the surrogates’ comfort and wishes. Surrogates that request a reduction are refused by doctors. In addition, the time of birth is often brought forward through a caesarian section so as to suit the commissioning parents’ schedule. 

To protect against these inherent flaws of commercial surrogacy, the Lok Sabha passed The Surrogacy (Regulation) Bill in August 2019, banning commercial surrogacy altogether, for both foreigners and Indian citizens. 

If the bill is enacted into law, it is estimated that surrogacy births in India will fall by 99.9%. 

However, does such a bill undermine the agentive factor of women? 

The surrogacy industry requires a significant regulatory overhaul; however, it can be said that women still choose to enter this line of work. Regardless of the financial constraints that drive them to the point where such a profession becomes necessary, they still enter the commercial surrogacy industry of their own volition. To depict women’s labour as ‘enslavement’ and their bodies as victims of a patriarchal and misogynistic enterprise may thus be seen as infantilizing. By suggesting that women cannot be the authors of their own destiny, or that their free will is an illusion created by men, one may inadvertently and inherently argue that women lack the capacity to know what is best for themselves. 

Commercial surrogacy allows several Indian women to earn money that they can hardly dream of otherwise. While there is a need to restructure the financial imbalances in the industry, in which surrogates may only receive one-sixth of the fees paid to the fertility agency, even $5,000 can be the equivalent of ten years–or more–worth of wages for a rural Indian woman. 

Moreover, such preventative and protective measures also, in essence, tell women what they can and can’t do with their bodies, thus policing their bodies in a manner all too similar to the surrogacy industry they are criticizing. 

That being said, can surrogates be said to have free will when they are not able, or allowed, to make a fully-informed decision? It is not possible for them to make an informed decision about their bodies without being taught and told what surrogacy entails and what the risks are. Free will implies consent, and one cannot consent to something that they have incomplete knowledge of. 

Ultimately, it is desirable to have a world in which women do not have to sell their bodies in order to make ends meet, but unfortunately, women in developing countries often do not have this privilege. By outlawing commercial surrogacy without providing an equally financially beneficial alternative, the government removes structural impediments to achieving gender equality, but does not provide the tools to move past the current status quo.

Consequently, fertility clinics, consumers, and surrogates alike, find loopholes in the existing legislation to continue such practices. For example, investigative journalist Sharmila Rudrappa found that when India banned surrogacy for gay couples in 2012, several infertility clinics in Delhi continued to do business with gay clients from across the world. Clients shipped their frozen sperm to Delhi to fertilize eggs from Indian donors. The “resulting embryos” were then implanted into Indian surrogates, and the surrogates were moved to Nepal to give birth. 

Thus, is commercial surrogacy neocolonialist enslavement or a lucrative livelihood? The answer is that both are true and do not have to be mutually exclusive. By removing barriers to gender equality without providing an adequate alternative or a vehicle to advancement, laws against commercial surrogacy only serve to create a black market, where unlicensed and unscrupulous businessmen and practitioners are likely to subjugate poor, uneducated, vulnerable women to even greater abuse and misinformation. In the absence of such initiatives from governments, the onus rests on consumers to be wary of the pitfalls of commercial surrogacy, and be more receptive to alternatives–such as adoption–when altruistic surrogacy is not an option. Sadly, in a paternalistic, patriarchal, and misogynistic world, in which women’s bodies are commodified in order to satiate our interests at any cost, this seems less than likely. 

Author

Shravan Raghavan

Former Editor in Chief

Shravan holds a BA in International Relations from the University of British Columbia and an MA in Political Science from Simon Fraser University.