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Kamayani Bali Mahabal aka Kractivist

The fertility industry today is a multi-million dollar, global business. Although many means have been used to try and present assisted reproductive technologies (ARTs), as designed to address the “needs” of people, particularly women. However, ARTs remain a business enterprise despite the propaganda that goes into trying to make it appear like social service. Though large parts of the entire health care industry are businesses too, the difference between the ART industry and other health services is that the former is all about finally arriving at a “product”: the baby.

India has surreptitiously become a booming centre of fertility market, with its “reproductive tourism” industry. There are no official figures on how large the fertility industry is in India. A U.N.-backed study in July 2012 estimated the surrogacy business at more than $400 million a year, with over 3,000 fertility clinics across India. The primary appeal of India is that it is cheap, hardly regulated and relatively safe. Surrogacy can cost up to $1,00,000 in the US, while many Indian clinics charge $22,000 or less for a case. Today, we are witnessing reproductive trafficking in India, where most cash-strapped surrogate mothers come re from rural India and travel to metropolitan centres to offer their services as a last-ditch effort to get money.

The infertility clinics have been hiring surrogate mothers for nine months and paying them an amount between Rs 2 lakh and Rs 2.50 lakh. They are also provided with accommodation during pregnancy. For foreign nationals wanting to opt for the procedure to complete their families, India is the best option. Cost is definitely an issue here, for what may cost them around $50,000 to $100,000 in the US, costs only around $25,000 here.

The fertility industry is driven by social conditioning, necessitating us to pass on our race. A class society, where private property is valued, reinforces the desire for progeny as a means of passing on property. Patriarchy bequeaths an inferior position to women and a desire for a male child. The fertility industry is heralding the return of eugenics. Commercialising surrogacy needs to be looked at carefully, because it is not just a financial transaction. Surrogacy can give women enough to buy a house, but the practice needs to be regulated. It is being promoted as an alternative livelihood, but it is not as simple as that, as women are exposed to health risks from having an embryo implanted. Moreover, their family can pressure them into commercial surrogacy, and they face the danger of suffering the stigma of earning money in this way.

The medical professionals give the justification that commercial surrogacy opens up new avenues for women to earn money. They say that it is unfortunate that it receives undue publicity. They seem to argue: “Anyway women here normally have four to five children. If she acts as a surrogate once, then she can earn Rs 2,00,000 to 2,50,000 from one case, and her family can benefit.” However, there are market anomalies that operate in health care and the standard competitive model does not apply to this sector. The lack of standardisation in treatment protocol is especially acute in ARTs, leading to multiple trials based on how much a couple can afford to pay. Health risks associated with these procedures are projected as insignificant and safety regulations are minimal. Varied and exaggerated success rates are claimed to woo patients. Clinics consider a positive pregnancy test as a successful case, ignoring any complications that may arise later, including the child not being born.

Assisted reproductive procedures are more than mere technology. They have deep roots in the existing social arrangements and power relations, and it is in this social context that their development, practice and propagation prevail. The premium placed on motherhood and biological progeny, and the social stigma associated with infertility, are largely responsible for the escalation of birth technologies into a fertility industry. Today, we are witnessing the globalisation of reproductive process, labour and tissues by cross-border sourcing of reproductive labour through surrogacy and egg donation, leading to medical tourism, which has facilitated the commercialisation and commodification of women’s bodies and reproductive tissues. With a booming reproduction market, the consequent exploitation of women is a reality in all aspects of their lives.

Mumbai, the commercial capital of India, has become a hub for surrogacy, as childless couples, including Non-Resident Indians (NRIs), from all over the world flock here. In Mumbai, one surrogacy clinic has turned itself into a one-stop shop for customers to enjoy a no-frills holiday and get a baby out of it. Each package costs around $20,000 and includes items like plane tickets, accommodation, transportation, a surrogate mother and three cycles of in-vitro fertilisation (IVF) and the money is paid in instalments. The surrogate mother gets about $4,500.

The Assisted Reproductive Technology (Regulation) Bill–2010 provides a national framework for married and unmarried couples and single parents seeking surrogacy in India. But, there are issues and concerns about the bill which need to be addressed. The bill tends to regularise and promote the interest of the providers of these technologies rather than regulate and monitor the current practices. It is also inadequate in protecting and safeguarding the rights and health of the women who undergo these procedures, surrogates and egg donors and of the children born through these techniques. It actively promotes medical tourism in India for reproductive purposes. Though it takes some steps to regulate the process of surrogacy in the context of the growing numbers of foreign couples coming to India, the equally important issue of the Indian women also becoming egg donors for foreign couples is not taken into consideration.

The legal parentage of children born through surrogacy has not been adequately tackled and situations in which the intended couple no longer wants the child, splits up, passes away or abandons the child have not been addressed. The process of handing over the child from the surrogate to the intended parents has also not been adequately addressed. The legislation also clarifies that the name on the birth certificate will be that of the genetic parents, thus equating the term with intended parent(s). Such a clause, although protecting the anonymity of the donor, presumes that the intended parents will also be the genetic parents.

The law states that a woman may act as a surrogate for three successful births in her lifetime, including a maximum of three attempts at pregnancy for a particular couple. This takes the number of times she can undergo IVF cycles to a high figure, thus jeopardising her physical and mental health. Along similar lines, the bill permits a woman to donate eggs six times in her life, at intervals of three months, which again could be hazardous for her health. But, an important aspect of the maximum number of eggs that can be retrieved in each IVF cycle is still left untouched in the legislation, thereby completely leaving it in the hands of the providers to decide on this.

The law makes commercial surrogacy legal, but prohibits the use of the egg of the surrogate mother for attaining pregnancy. This implies that an infertile couple will have to look for a surrogate as well as an egg donor; further, a woman with a healthy reproductive system (surrogate) will be subjected to a complicated, hazardous and expensive procedure, like IVF, rather than a simpler one, like intra-uterine insemination (IUI). The bill is self-contradictory, when it comes to protecting the identity of the surrogate. While insisting on a number of measures to be taken to ensure the anonymity of the surrogate, it states that the surrogate mother should register under her own name for the purpose of medical treatment and provide the name of the couple for whom she is acting as a surrogate. If the legislation makes it mandatory for the surrogate to disclose her identity, then it is unclear as to how her privacy will be maintained.

Before the law is put on the anvil, it needs a serious debate. Ethically, should women be paid for being surrogates? Can the rights of women and children be bartered? If the arrangements fall through, will it amount to adultery? Is the new law a compromise in surpassing complicated Indian adoption procedures? Is the new law compromising with reality in legitimising existing surrogacy rackets? Is India promoting “reproductive tourism”? Does the law protect the surrogate mother? Should India take the lead in adopting a new law not fostered in most countries? These are only some questions which need to be answered before we adopt the new law.

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