Surrogates: Mothers, Workers, or Commodities? Navigating the Complexities of the Reproductive Market

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The surrogacy market has led to the reduction of women’s wombs to commodities. Yet the ‘colonisation of the womb’ cannot be challenged with regulations or industry bans alone but a more equal structure free of exploitation.

 

In India, the recent Surrogacy (regulation) Act (2021), which bans commercial surrogacy, has reignited a debate around family structure, motherhood, freedom to choose, and the exploitation of ‘surrogates.’ The law excludes single unmarried women, men, and homosexual couples from using surrogacy, limiting it to heterosexual couples only. Moreover, it mandates altruistic surrogacy only, where monetary transactions are prohibited, but medical expenses and insurance of ‘surrogates’ are covered. Critics argue that this act infringes upon the right to equality by perpetuating a patriarchal understanding of family  or limiting it to heterosexual couples.

Amidst this discourse, however, one aspect remains overlooked: the reduction of women’s wombs to commodities. The circumstances in which women are choosing to be ‘surrogates’ are often ignored, and their decisions are sometimes viewed as a means to alleviate poverty. Many argue that by banning commercial surrogacy, the government has effectively taken away their means of livelihood and is  seen as an attack on their ‘work’.

Another question that arises is whether altruistic surrogacy is a viable alternative? Will it effectively reduce the commodification of women’s bodies? In a neoliberal economy, the distinction between ‘providing labour’ and ‘being commodities’ is blurred. David Harvey writes in A Brief History of Neoliberalism that “Neoliberalization has transformed the positionality of labour, of women, and of indigenous groups in the social order by emphasising that labour is a commodity like any other.”

This article aims to explore surrogacy through the lens of labour and commodity and assess whether the ban on commercial surrogacy will help women or not. Furthermore, how will the ban in one country influence the ‘surrogacy market’ of another country?

Surrogacy debates need to shift focus to “legal marriages”, too, where societal expectations compel women to carry children without any other choice. Every ‘unwanted pregnancy’ should be treated as a form of surrogacy, ending the compulsion to carry children due to societal/monetary force. A market free from patriarchal and colonial understandings of labour will also mitigate the exploitation in private spheres.

 

India’s tryst with surrogacy

In tracing the trajectory of surrogacy in India, it’s crucial to understand the historical context. The term   ‘surrogate’ implies a substitute or replacement, particularly in the realm of motherhood. A surrogate mother steps in for another woman who is unable to carry a child, either for financial gain (commercial surrogacy) or altruistic reasons. There are two main types of surrogacy: traditional, where the surrogate uses her own egg, and gestational, where the embryo is implanted into the surrogate’s womb, often using gametes from donors or intended parents.

In 2002, India legalised commercial surrogacy, which opened the doors for many parents from first-world countries to hire women’s bodies from developing countries like India to fulfil their parental (or neo-colonial?) desires. Medical tourism has facilitated the global North’s ability to ‘colonise the wombs of women’ from the global South since the ‘womb’ here is accessible at a lower price comparatively.

We don’t have any recent report on it, but a decade-old report from The Lancet finds that “  more than 25,000 children are thought to be born to surrogates in India, with 50% of these from the West.” In some states of the US, commercial surrogacy is legal, while in the UK, only altruistic surrogacy is legal. Due to this, many surrogates are unwilling to participate. According to the report, the fees paid to surrogate mothers in the US is around $25,000, whereas in India, due to poverty and the informal sector making women’s lives more difficult, surrogates can be hired for $5,000 to $7,000.

Additionally, other problems, such as the surrogate mother refusing to give up the baby, are less likely to occur in India due to the dire financial circumstances faced by women. Even if they develop some emotional attachment to the baby they delivered, keeping an extra child is not feasible for them. Several women have repented that   they were not allowed to see the faces of the children after delivery..

They feel exploited and used, yet they often compromise with their ‘commodity’ status due to their circumstances. In 2015, the Indian government excluded foreign clients from commercial surrogacy   due to the deaths of surrogates and the abandonment of children by foreign clients. This decision sparked controversy, although commercial surrogacy remained open for Indian clients until 2021, when the government decided to ban surrogacy for domestic clients as well, permitting only altruistic surrogacy.

However, the ban has not proven effective, as agencies have begun taking surrogates across borders, such as in Nepal. Sharmila Rudrappa writes that in April 2015, during the earthquake in Nepal, the trade route between India and Nepal was affected. At that time, several surrogates were in Nepal, and they were taken there to deliver babies, “various governments from countries airlifted babies belonging to their citizens, but the fate of Indian surrogate mothers remained unclear.”

Many surrogate mothers were brought from Kenya to Mumbai for embryo implantation and then sent back to deliver babies in Kenya. When Cambodia banned commercial surrogacy, agencies took surrogates to Thailand for deliveries. The ban on domestic surrogacy in India has led to an increase in interest in   surrogacy options in countries like Georgia and Kenya, where commercial surrogacy is still viable. Many couples are now exploring these options. Additionally, Thailand is considering reopening its commercial surrogacy market   for parents from the USA and other countries.

The opening of markets for surrogacy can be understood from the work of Nancy Scheper-Hughes. In he r research, she finds that “A triumphant global neo-liberal capitalism has released a voracious appetite for foreign bodies to do the shadow work of low-level production and to supply the ‘needs’ of domestic and international medical consumption.” The surrogate’s body, in this regard, is being treated as a cheap reproductive material to fulfil the desire of the neo-liberal market. And, as Scheper-Hughes contends, the trade of reproductive material follows the “modern routes of capital” flow — from “South to North, from Third to First World, from poor to rich, from black and brown to white, and from female to male.”

 

Commercial v/s Altruistic

Many countries are regulating their surrogacy markets; for example, China has banned both commercial and altruistic surrogacy altogether. Australia, the UK, Canada, and now India are moving forward with altruistic surrogacy as the only option. The question arises: Is altruistic surrogacy safe or ethical? It’s crucial to understand if there are any chances of exploitation within altruistic surrogacy. Although in favour of regulating commercial surrogacy, Yuri Hibino argues that the dichotomy between commercial and altruistic surrogacy is false,  as both can lead to exploitation.

In altruistic surrogacy, women are still expected to undergo the same procedures and regulations as in commercial surrogacy, but without payment. I believe that the issue at hand is not whether the surrogacy is commercial or altruistic; it’s the act of surrogacy itself. Women’s bodies are being regulated and commodified in both scenarios. Altruistic surrogacy won’t reduce their health risks either. Altruistic surrogacy may continue this procedure without the compensation that commercial surrogacy provides, essentially stripping women of financial gain while subjecting them to the same risks and demands.

 

(Un)Informed Consent and the Health Risk

In the documentary “Womb on Rent,” Laxmi, a surrogate mother, recounts how the agency asked her to sign a blank paper, stating, “We are not literate; we do it all for the money.” None of the women have contracts to prove that they will be paid, and they are often unaware of the health risks associated with surrogacy. When some surrogates want to terminate their contracts, agencies react by pressuring them to continue or face fees. . This pressure is not limited to India but is prevalent worldwide. In India, due to a lack of education, many women rely entirely on agencies or doctors who inform them about the rules and procedures but fail to disclose the associated risks, often asking them to sign blank papers.

Many clinics implant more than five embryos without informing surrogates, increasing the chance of twins for intended parents while reducing costs for a second baby. A Reuters report  finds that “When a woman carrying twins wanted a reduction, the agent and doctor refused. Instead, they offered an additional 50,000 rupees ($809) plus a C-section, which she accepted. As one doctor explained, if the commissioning parents get twins, “it is two in one shot, they don’t have to spend that money again.”

However, this practice puts surrogate women at risk. With each additional embryo, the risk of complications for mothers and babies rises, leading to many postpartum complications and rendering women unable to work for a lifetime. Media reports show that  surrogate women have died from heavy bleeding  to heart attacks and face severe health issues like HIV, cancer, and high blood pressure. There’s also a risk for egg donors,   who are more susceptible to cancer and infections due to hormonal imbalances during egg donation. Sheela Suryanarayanan, in her research, finds that surrogate women’s “bodies are violated at different levels — physical, psychological, and social.”

Many of the surrogates are often not aware of what is happening to their bodies, or I feel the capitalist structure behind surrogacy doesn’t prioritise informing them about the health risks. However, the question is, even if there is ‘informed’ consent in such unequal structures, will these women truly be able to bargain or choose their own lives? Sonja Van Wichelen, while discussing how surrogacy debates are viewed in private international law, writes that “informed consents conceal power dynamics.” Therefore, while surrogates may give informed consent, they might not fully comprehend the complexities and potential consequences of their decisions due to unequal power dynamics.

 

Poverty, regional dynamics, and reproductive technology

One major argument frequently cited in favour of surrogacy is that it provides an avenue for surrogates to earn income through their labour using their bodies. It helps them to come out of poverty. Suryanarayanan, who conducted research in Gujarat, highlights this aspect in her work. Her research reveals a different reality. She found that despite engaging in surrogacy, 60% of ‘very poor’ women remained in dire economic conditions, with 16% being pushed into abject poverty. Many women resorted to repeated surrogacies either to improve their financial situations or to repay loans.

Suryanarayanan notes, “Most surrogate mothers from very poor households remained very poor after engaging in surrogacy. The assumption that surrogacy generates income for these women is not supported by this sample.” Her research also reveals that those classified as “very poor” faced near-death experiences and serious health issues. Additionally, many women repeated surrogacies solely to repay household loans, which had increased significantly post-surrogacy among “poor” and “very poor” households.

Unfortunately, many in favour of surrogacy continue to present the argument that it will alleviate poverty, even though there is no clear evidence to support it. In India, the surrogacy debate needs to be examined from the perspective of Brahmanical patriarchy as well. Upper-caste, middle-class women who support commercial surrogacy rarely face the stigma associated with prostitution or surrogacy.

It is women from marginalised castes who experience discrimination and exploitation, as poverty in India has led to the commodification of marginalised caste/class women. Sowjanya Tamalapakula quotes Patricia Hill Collins, stating that capitalist society has turned a black woman’s body into a “fragmented commodity,” from her sexuality to her womb, sold to white masters. She argues that these power relations also exist in terms of caste in India, indicating that surrogacy cannot be viewed solely as an economic opportunity.

I believe these power relations exist globally in the form of neo-colonisation, where the bodies of labour from the global south are exploited. In the neoliberal economy, these women are reduced to commodities without agency over their own feelings. Corea (1985) has already cautioned  against reproductive technologies, stating that they are designed by men to control women’s bodies. As Kollantai argues, ‘sex work’ exists not only in public spaces but also within ‘legal marriages,’where women engage due to financial necessity.

Surrogacy debates need to shift focus to “legal marriages”, too, where societal expectations compel women to carry children without any other choice. Every ‘unwanted pregnancy’ should be treated as a form of surrogacy, ending the compulsion to carry children due to societal/monetary force. A market free from patriarchal and colonial understandings of labour will also mitigate the exploitation in private spheres.

In the context of these discussions, I suppose the ban is neither effective nor incorrect. It won’t help reduce the commodification of women’s bodies because, in the absence of alternatives, an ‘illegal’ market will always flourish. Banning surrogacy in one market will open the market of another country. I believe the critics, feminists, anti-caste activists, anti-racism activists, and other organisations should instead come together for collective resistance against the structures that force women into such ‘work.’ Regulation, instead of challenging the power dynamics, will legitimise these power imbalances.

Until the neocolonial and unequal structures are dismantled, we can’t expect any changes. Critics, instead of suggesting that banning commercial surrogacy won’t help surrogates to come out of poverty, should demand better economic opportunities for women. The ‘colonisation of the womb’ cannot be challenged with regulations or industry bans but with demands for a more equal structure that is free of exploitation.

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