The surrogacy story: Beyond the Bollywood babies is an industry that needs regulation

On June 27, Tusshar Kapoor became the latest in a line of Bollywood celebrities – after fellow actors Aamir Khan and Shah Rukh Khan – to have achieved parenthood through surrogacy. Unlike the two Khans, however, Kapoor is a single father, and the birth of his baby boy has stirred some debate on the unregulated Assisted Reproductive Technology industry in India, of which surrogacy is a part.

That surrogacy has once again made news is not surprising. The business of a woman carrying another person or couple’s baby to term in exchange for money tends to interest, excite, and divide people. Media reporting on the issue is usually polarised. We see either celebrity tweets gushing thanks for the new life in their lives (interestingly the surrogate mother is almost never thanked in these tweets) or we see horrific headlines about women who are forced to become surrogates and babies who are abandoned in cases of disability.

Away from these two extremes, what is a truer and fairer picture of the conditions of the surrogacy industry? In other words, what is and isn’t the problem here?

Unregulated industry

Currently there exists no reliable source on the size of India’s surrogacy industry, but estimates have placed its value as anywhere between $500 million and $2.3 billion annually. This is a vast and varied industry. Links in its long chain include small clinics, big hospitals, tourism departments, health care consultants, surrogacy agents, law firms, surrogate hostels, and travel agencies. All of this is, however, unregulated. The Indian Council of Medical Research has a set of guidelines for Assisted Reproductive Technology, but these are non-binding.

An Assisted Reproductive Technology bill has been drafted and redrafted, but is yet to see the light of day. There have been some small, albeit mixed, regulatory victories along the way though. In response to cases where foreign children born to Indian surrogates were refused citizenship by their parents’ countries, the Ministry of Home Affairs in 2012 issued a directive for foreign couples coming to India. This directive requires foreign couples – defined problematically as a man and a woman married for at least two years – to produce a letter from their government stating that it recognises surrogacy, and will permit the child born through surrogacy entry into the country as the biological child of its parents.

What of the surrogates, arguably the lowest rung of the industry pyramid, its most vulnerable actors? Surrogacy is often presented as a win-win situation, one that gives poor women the money they need and infertile couples the children they want. While this is certainly true, it is an incomplete truth. The industry as it operates currently has many ethical, legal, and social problems, and is particularly unfavourable to surrogates.

Information blackout

To be a surrogate, a woman has to be married with children (proven fertility), and have her husband’s consent. In order to ensure that the surrogate is not the child’s genetic mother and that donor anonymity is preserved, in vitro fertilisation, or IVF, is preferred over intra uterine insemination, or IUI.

However, intra uterine insemination – which would artificially inseminate the surrogate’s own eggs if viable – is the simpler, less invasive and less risky procedure as compared to in vitro fertilisation – which uses eggs from the intended mother or a donor to make embryos that are then transferred to the surrogate’s womb. Because IVF has low success rates, multiple cycles (including drugs and injections) may be needed to transfer embryos, and multiple embryos may be transferred in one cycle to increase chances of pregnancy. Further, if many embryos are implanted, the surrogate may have to deliver twins, triplets, or more (often through caesarean deliveries) or the couple may choose to destroy some embryos in the womb through a process called fetal reduction.

Surrogates usually have little or no information about any of these procedures, let alone about their side effects or risks. Post-delivery, the surrogate usually relinquishes the child immediately, after which she receives little follow-up care.

Working conditions

These are just some of the medical vulnerabilities. The surrogate is also socially and economically vulnerable. Most surrogates rely entirely on the agent or doctor for information, and don’t have much negotiating power. They sign a contract that is in English, drawn up by the intended parents, of which they do not usually receive a copy. The amount and pattern of payment to the surrogate is determined by the clinic, and is often a fraction of what the whole arrangement costs. To avoid stigma from their communities, many surrogates stay in hostels, where clinics closely monitor their mobility, sexual and physical activity, but not important things like the maximum number of surrogacies or the interval between them.

Yet, despite this less-than-winsome portrait, we must not look for the answer to surrogates’ woes in false binaries.

The problem with surrogacy is not that reproduction has been split by technology and commercialised by markets – indeed reproduction always was and continues to be mired in unequal power relations – but that surrogates do not have rights as workers.

And let us be clear: surrogates are workers. They may be selling the labour of their wombs, which is a break from the norm of bearing babies within marriage (although who is to say that that is not also an exchange with material and emotional gains), but they deserve no less than those of us who sell mental or manual labour. The solution to the industry’s problems cannot be to ban surrogacy, or to ban commercial surrogacy that is done for money and allow altruistic surrogacy that is done for kin (since when are women better off doing unpaid labour for the iron fist of the family?) What we need is a solidly pro-surrogate regulation that will make their working conditions better.

Women’s agency

Such a regulation cannot be drafted without including the affected – the surrogates themselves. Additionally, given the implications of surrogacy for a wide range of issues – child rights, disability, queer rights, women’s health, and medical ethics, to name a few – these constituencies must also be meaningfully included in the formulation and implementation of a surrogacy regulation.

Such a regulation also cannot be drafted without making a mental shift: women in constrained circumstances can and do make choices. We have to walk the line between respecting women’s choices, however constrained, and improving the circumstances in which those choices are made. Research shows that most surrogates are domestic workers, garment workers or construction workers and come from families that make around Rs 3,000 a month. They opt for surrogacy to earn a lump sum of anywhere between Rs 1 lakh to Rs 4 lakh – which can help pay off a loan, build a pukka house, or help educate their children.

Research also shows that the lives of the poor in India are much too precarious to be greatly improved by one or even a couple of such lump sums. This is what is morally outrageous. This is the real tragedy of the surrogacy story – not that the poor struggle to survive, but that these struggles fail much more than they succeed.

Vrinda Marwah is doing her PhD in Sociology from the University of Texas at Austin. She has worked with Delhi-based Sama, a women’s health rights group, on surrogacy.