Susheela, a woman from a small Indian village in western Uttar Pradesh, never imagined the day that she would help deliver a child for an Australian couple. After moving to a modest shanty in Delhi with her husband, Susheela was approached by a representative from a fertility clinic and presented with a newfound opportunity to become a gestational surrogate. These surrogates have another couple’s embryo implanted into their uterus, and have no biological relationship to the embryo. After being informed about the procedure and the pay, Susheela decided to become a surrogate. For her first surrogacy, she was paid 120,000 rupees ($1,797), the equivalent to 4 years of her husband’s salary, along with other benefits such as a paid stay at a surrogate home that was run by the fertility clinic. Overall Susheela experienced great attention and care.
Susheela’s decision to become a surrogate is not unheard of in India, where the commercialized surrogacy industry is booming. Since 2002 when India legalized surrogacy, it has become the world’s surrogacy hotspot and surrogacy has become a $750 million dollar industry. Each year, an estimated 5,000 surrogate babies are born, with many going to foreign clients. Surrogacy for foreign parents took off in 2003 largely due to Dr. Nayna Patel, whose first delivery was a gestational surrogate, and received great recognition for her high success rates.
India’s commercialization of surrogacy has been addressed from two distinct vantage points. The first view believes that surrogacy is a win-win situation for the millions of infertile couples who have been afforded the opportunity to have their own child through a safe and cost effective means, while surrogate women can earn a livelihood and also feel proud to help a couple in need. Yet there is a second view that finds commercialized surrogacy inherently exploitative, as individuals from the developing world come into India and take advantage of women from the lowest socioeconomic status, who in reality do not have the choice to not become a surrogate because it provides monetary compensation that these women would otherwise never receive.
Surrogacy is far from just a modern day occurrence. Its history can be traced back to the Old Testament, when Hagar, Sarah’s servant, was “given” to Abraham to bear a child for Sarah who was infertile. There is also reference to surrogacy in Hindu text. In the Mahabharata, Gandhari was able to give Dhritarashtra 100 children, although they were not biologically related. Historically, kinship and the continuation of a bloodline have been quintessential. Today, surrogacy has continued to pluralize kinship, except now modern technology and surrogacy contracts have expanded the concept of a linear bloodline.
Before the advent of in vitro fertilization (IVF), surrogacy was traditional, meaning that the surrogate contributed her own eggs and also carried the child on behalf of the “commissioning parents.” In 1944, a Harvard Medical School professor was the first to fertilize a human ova outside the uterus. About 10 years later, researchers successfully performed the first cryopreservation of sperm. These advances led to the successful birth of the first IVF child in 1978. The next advance for Artificial Reproductive Technology was gestational surrogacy, and in 1985 a woman carried out the first successful gestational surrogacy birth.
For western couples, it is understandable why India has become a place of new hope. Surrogacy is not a worldwide option, and has actually been banned in multiple countries. In the United States, surrogacy laws and regulations vary from state to state and the cost of surrogacy can range from $50,000-$70,000. India provides a cheaper alternative (the average cost of a surrogacy reaching $10,000), as well as advanced technology and skilled professionals. “On the surface, it appears that commercial surrogacy arrangements in India are a win-win situation for all parties involved,” states Ruby Lee. “It is seen to give ‘desperate and infertile’ parents the child they want, and to provide poor surrogate women the money they need.” Yet unlike Susheela’s story, which paints a nice picture of India’s surrogacy industry, many Indian women feel exploited due to the lack of informed consent and financial protection, inadequate medical care, and restriction inside of surrogacy “residences.”
According to many scholars, “The surrogacy process makes a mockery of consent.” In studies of 200 surrogates, researchers found that many women were not only unable to read the contracts they signed because they were illiterate, but many were not paid what they were promised and were deceived about the procedures. Women were told their deliveries would be natural births but many underwent unnecessary C-sections. Some women were hired as one of multiple surrogates that would be used to increase a couple’s probability of a child. And in the end, less viable fetuses were eliminated through pill-induced miscarriages.
These “paid vacations” at hostels like the one in Anand run by Dr. Patel are also questionable and not a pleasurable experience for all. Women are isolated from their families in a place that is constantly monitored and prevents them from seeing their own children. In an interview, one surrogate said that aside from medical screenings, she hadn’t left the building or seen any visitors in three months. Although there are clear problems with India’s commercialization of surrogacy, it still remains a common practice. Many women understandably continue to work as surrogates due to the large financial compensation. Some women who choose surrogacy find the notion of choice to be arbitrary, because at the end of the day they must make sure that their basic living needs are met. And other women like Susheela are proud to not only earn compensation for this act, but feel empowered by their ability to provide people with the opportunity to have a child.
Despite the growth in commercialized surrogacy, there is still no government regulation in India. Clinics have an incentive to care for the health of the fetus, but there is no regulation protecting surrogates from agencies that may decrease their pay and prenatal care. India has recently tried to address the lack of regulation through the 2016 Surrogacy Bill. Under this bill, all commercial surrogacy would be banned, and only altruistic surrogacy would be allowed, limiting surrogacy to only close relatives who can become surrogate mothers for heterosexual infertile couples who have been married for five years.
This ban makes a bold attempt to address the perceived inherent exploitative nature of commercialized surrogacy. But is this truly a step in the right direction? The proposal has decided that the only people deserving of parenthood are infertile, heterosexual married couples, leaving out single people and individuals in the LGBTQ community. The authors of the bill naively believe that just because a woman is related to a couple, that implies proper treatment from the couple and complete compliance from the surrogate. The bill also proliferates gendered expectations of women being innately altruistic, therefore not needing monetary compensation.
Banning commercialized surrogacy does not mean an end to surrogate exploitation. Regardless of the legality, the demand for surrogacy is high and this ban may result in the growth of an unregulated black market. At best, as Gayatri Jayaraman argues, this ban will result in the redirection of surrogacy to other unregulated areas such as Mexico and the exploitation of a whole new population of women.
Regardless of whether policy makers find the commercialization of surrogacy inherently exploitative or a free and empowered decision, both sides must do a better job at understanding the need for regulations that address the conditions in which surrogates make the decision to enter a surrogacy arrangement, and the need to establish oversight on surrogacy agencies and hold them accountable for abuses. Neither a ban nor complacency is the answer.