The political economy and legal regulation of transnational commercial surrogate labor.

• Author: Choudhury, Cyra Akila
• Position: Introduction through III. The Political Economy of Surrogate Lives in a Developmentalist and Antinatalist State A. Defining the Regulatory Terrain: Globalized Women in an Antinatalist Developmental State, p. 1-29

ABSTRACT

India's commercial surrogacy business has been the focus of intense media scrutiny for the past decade. In that time, it has grown from a $400 million industry to over $2 billion. While the growth in the surrogacy market has been rapid and widespread, the Indian government has struggled to regulate it as a business, as a medical practice and for the protection of surrogates. After nearly a decade of proposed draft bills, the government has yet to enact comprehensive regulation. It is now clear that the state will not ban such a lucrative source of income.

Scholars of surrogacy have begun to take note of the Indian market. In the United States, where surrogacy has provoked debate and theorizing among feminists, scholars are increasingly interpreting the meaning and the effects of surrogacy in other countries using theories developed from the experience with surrogacy and assisted reproductive technology (ART) in the United States. Despite the academic discourse, no proposals for regulation of Indian surrogacy have been forthcoming. The discussions remain theoretical and decontextualized, with Indian surrogacy described with generalizations and media-driven stereotypes. More importantly, scholars consistently fail to incorporate the emerging ethnographic accounts of surrogate lives or to contemplate a regulatory agenda based on the lived realities and the political economies of family and state in which poor Indian women become surrogates.

This Article breaks new ground by closely reading the emerging ethnographic accounts of surrogacy to establish that current feminist frames are incomplete. It incorporates the political economy of surrogacy, the economic relationship of surrogacy to the Indian state, and the political economy of surrogates' families, which have all been missing from the current dialogue. The Article concludes that the benefits of surrogate labor outweigh its disadvantages and develops a new framework--of surrogacy as labor--that will, for the first time, protect the surrogate as a worker.

Surrogacy, as a fairly open regulatory field, provides feminists with a unique opportunity to devise appropriate legislation. In order to inform that legislation, the Article explores regulations in the United States and South Africa and argues that, given the unique political economy of Indian surrogacy and the commercial nature of the surrogacy market, broader labor protections are required to undergird the current private contract regime. In other words, legislation must take the business of surrogacy seriously as a business and treat Indian women who engage as surrogates as its workers. Only by marrying labor regulations and standard contract terms will surrogates be protected from exploitation and able to demand fairer terms and conditions from affluent commissioning parents and local clinic owners who currently profit from their labor.

TABLE OF CONTENTS I. INTRODUCTION II. BOON/BANE/WORK: DISCURSIVE FRAMINGS OF COMMERCIAL SURROGACY AND REGULATORY APPROACHES A. Baby Buying/Selling B. Forming Families for Love and the Altruism of Surrogacy C. Sexploitation: Domestic Work, Sex Work, and Trafficking D. Outsourced and Cheap Labor E. Neocolonial Oppression of Women of Color III. THE POLITICAL ECONOMY OF SURROGATE LIVES IN A DEVELOPMENTALIST AND ANTINATALIST STATE A. Defining the Regulatory Terrain: Globalized Women in an Antinatalist Developmental State B. The Domestic Economy of the Indian Surrogate's Family C. The Long-Term Benefits of Surrogate Labor IV. LEGAL REGULATION OF SURROGACY IN COMPARATIVE PERSPECTIVE: THE UNITED STATES AND SOUTH AFRICA AS POSSIBLE MODELS A. United States: From Prohibition to Ambivalence to Laissez-Faire B. South Africa: State-Regulated Altruism C. Surrogacy Regulations that Travel V. THE INSUFFICIENCY OF CURRENT REGULATORY FRAMEWORKS: INTRODUCING A LIMITED CONTRACT-LABOR FRAMEWORK TO BETTER PROTECT INDIAN SURROGATES A. Current Approaches: Laissez-Faire Contract and Regulating Surrogacy as Medical Procedure B. The Insufficiency of Current and Proposed Regulation C. Why a Labor Framework May Work Better in India VI. CONCLUSION: GETTING THE BEST OF A FAUSTIAN BARGAIN? "Any fool can have a baby; it takes a smart woman to get paid for it." (1)

1. INTRODUCTION

   Surrogacy is the stuff of legend and nightmare. From the Bible's story of Hagar, Sarah, and Abraham to The Handmaid's Tale, the prospect of one woman giving birth for another has raised questions of morality, ethics, power, and legality. (2) With innovations in reproductive medicine, traditional surrogacy involving the donation of eggs from the gestational mother (making her both the genetic and gestational mother) is no longer necessary. (3) Due to advances in in vitro fertilization (IVF), the production of genetic children has been decoupled from gestation and can now occur outside the marital family. One can engage a woman for the services of her womb. However, the costs associated with this sort of surrogacy are beyond the reach of many families. (4) Reproductive healthcare services in the United States are exorbitantly expensive, particularly for those who do not have insurance coverage. (5) And insurance companies do not uniformly provide coverage for IVF. (6) Those who desire a genetic child often undertake private contracts through agencies with costs that can reach up to $100,000. (7)

   Fortunately for those who are looking for more affordable surrogacy services, globalization and advances in medical science have opened up the market in countries where the costs are much less onerous. India has entered the ART market with alacrity. (8) With its advanced education system and low cost of living, it is ideally poised to provide high-quality care at a fraction of the cost charged by providers in the United States. (9) Surrogacy providers are experiencing a boom in growth. (10) Current estimates suggest that the business brings in over $2 billion. (11) Approximately 25,000 children are born from surrogacy, and half of these children are for commissioning parents in the West. (12) This expansion of surrogacy providers in India has been deemed by some as a benefit both to Indian women who seek to earn money through providing services and to childless families who desperately want children. (13) However, the rate of growth in the market for these services has far outpaced their regulation. (14) That gap has given rise to controversial situations in which the law has had to play catch-up. The Baby Manji case, for instance, raised the specter of stateless children. (15) In that case, when a divorce destroyed the commissioning family and left the baby without a legal mother, neither Japan nor India was initially willing to give the child nationality. (16) Eventually, the case was settled, giving the biological father custody of the child and the child Japanese citizenship; but the case nonetheless served to focus attention on commercial surrogacy and its many issues. (17)

   The debate continues, and many sides have weighed in to frame surrogacy and give meaning to its practices and consequences. (18) For proponents of surrogacy, the ability of couples desiring children to fulfill that wish through surrogacy is a benefit that outweighs the costs. (19) For those who construe surrogacy as a primarily commercial transaction, the fear that women's reproductive abilities will be marketized and the product of their labor--children--commodified is cause for anxiety. (20) Others are willing to let women decide to enter into surrogacy and reap economic benefits from their reproductive capabilities. (21) When the debates enter the transnational arena, they are complicated further. For instance, the discourse surrounding Indian surrogacy is not primarily about altruism but about commerce and financial gain. (22) Indian surrogates can earn a great deal of money relative to their yearly family income from one surrogacy. (23) Yet, the cost to those commissioning couples or individuals coming from the United States is comparatively modest. (24) And the clinics in India arranging and supervising the services are also profiting. (25) This seems like a win-win solution for all. At least economically, everyone is better off. However, as the clinics grow and expand, issues surrounding surrogacy have also expanded. Baby Manji mentioned above is just one example. Domestic regulation has been minimal and haphazard. (26) Recently, for instance, the Indian government, through a directive to its diplomatic missions, has banned the provision of services to foreign unmarried and same-sex couples through surrogacy. (27) While the latest proposed draft bill removes these barriers, it has not become law yet. (28) Current regulation jeopardizes the status of children commissioned by single and gay parents from abroad but is silent about Indian gay parents (if any). (29) To date, the government's regulation has been outward looking, more concerned with the demand-side of the business and parentage rather than the labor and supply-side. (30) The result is that there is a gap between what is occurring in the commerce of surrogacy and what is occurring in the law.

   This Article seeks to explore the market for transnational surrogacy, the discourses framing surrogacy, and the specific context of Indian commercial surrogacy with the...