Introduction
The Ministry
of Health in India has recently announced that the Government of India proposes
to ban surrogacy for commercial purposes.[i]
Only altruistic surrogacy will be permitted where the surrogate mother is a
“close relative” of the intending parents. Further, surrogacy will be permitted
only to Indian citizens residing in India; Non Resident Indians and persons
holding Persons of Indian Origin (PIO) cards have been excluded. Given the
nature of the transactions in the surrogacy market, Government intervention in
the market was, indeed, required since, at the moment, the only
guidelines available are those of the Indian Council of Medical Research.[ii]
However, these guidelines have not been codified into law and, hence, are not
legally enforceable.
There are
various reasons why commercial surrogacy has come under a cloud and these are
probably the reason why the Government of India proposes to ban it. These
reasons are related to the interests and welfare of the surrogate mother (SM),
the intended parents (IP) and the unborn child.[iii]
I would like to focus on the issues related to the SM. The main fears are: (1) exploitation by third parties, (2) lack of fully-informed consent and (3) threats to the mother's mental and physical health during and after the pregnancy. Each of these issues is important and needs careful examination.
The question also needs to be asked whether the proposed ban on commercial
surrogacy will alleviate or exacerbate these concerns. In addition, there are
concerns about commodification of women (akin to prostitution), baby-selling
and similarity with organ sales. I will not touch on these but direct the
reader to Richard Posner[iv]
and Aristides Hatzis[v]
who effectively demolish these arguments against surrogacy.
Exploitation
The
exploitation argument needs to be considered seriously. A particularly strong
critique of the Indian surrogacy market on this ground comes from Kristine
Schanbacher who believes that the market completely fails to uphold the
principles of medical ethics.[vi]
In the surrogacy market, the potential SM enters into a transaction with the
IP. Economics states that any market transaction that that is completed necessarily
leads to an improvement in welfare. The buyer believes that (s)he has received
more in value than has been paid for the product or service and the seller
earns more than it has cost to produce the product or service. An important
condition for the improvement in welfare is that both parties participate in
the transaction voluntarily; absent this and the transaction is nothing but
exploitation and theft. We have to ask the question whether the SM enters the
transaction as an independent economic agent, freely pursuing her own interests
or is she coerced into the transaction. This coercion may take place either due
to pressures from the IPs but, more likely, due to pressures from the agency
managing the surrogacy. More insidiously, exploitation may occur due to the
economic circumstances of the SM and, hence, her weaker bargaining position
relative to the wealthier IPs.[vii]
The lure of compensation, relative to the income of the SM, may “force” her
into the transaction. Countries which have banned commercial surrogacy have
taken the paternalistic position of protecting SMs from such exploitation, e.g.
Canada and the UK (altruistic surrogacy only), and Greece (no compensation
beyond out of pocket expenses).[viii]
With opportunities for surrogacy shrinking elsewhere in the world, the $400
million Indian market[ix],[x]
will likely only expand further.
Let us explore the economic status of the women who
agree to be SMs. There isn’t a large sample study in this area of research,
possibly because the nature of information sought precludes the possibility of
carrying our large surveys. Most researchers have recorded oral histories of SMs.[xi],[xii]
Amrita Pande’s study reports that the median (monthly) income of the families
of SMs was Rs. 2500. She writes “If we compare that to
the official poverty line in India, 34 of my 42 interviewees reported family
incomes below or around the poverty line”.[xiii] Further, “the money earned through
surrogacy was equivalent to almost five years of total family income especially
since many of the SMs had husbands who were either in informal contract work or
unemployed”.[xiv]
Sheela Sarvanan also finds economic distress as an important reason that
motivates potential SM.[xv]
This quote from an SM in Sarvanan’s study will cause anguish to any sensitive
individual “This process is so distressing that I would not have done it even
if someone paid me 10 times the remuneration, had I been well-off, but I am so
desperate (for money) that I would do it even if I was paid just one third the
amount”.[xvi]
Clearly, SMs belong to vulnerable sections of the
population and, even if they were not coerced by anyone, their economic status
might have compelled them to enter the transaction. The question we have to ask
is whether it is just surrogacy that they would have avoided if their economic
circumstances were better. There exist many occupations – sweepers, scavengers
(removal of excreta from pit latrines, though illegal, still takes place in
India), and maids among others – that individuals would not do if better
opportunities were open to them. Such jobs are necessarily taken up by those
who lack educational qualifications or alternative employment opportunities. How
many households in India have ever employed maids who had a college degree and
could have easily found white-collar employment? Accidents of birth, lack of
opportunities and poor choices trap individuals in many occupations that they
would rather not take up. Surrogacy is no different from such occupations.
While I am convinced that economic circumstances
motivate women to act as SMs, surprisingly, only a small minority reported that
to be the case. Vasanti Jadva and others report that only one out of the 39
women interviewed by them stated that monetary compensation was a motivating
factor, while 91% wished to help a childless couple.[xvii],[xviii]
Should one believe that compassion trumps economic motivation for the
respondents in the study? A more plausible motivation for entering into a
surrogacy contract comes from a quote by an SM in Pande’s study: “I
don’t think there is anything wrong with surrogacy. We need the money and they
need the child. The important thing is that I am not doing anything wrong for
the money—not stealing or killing anyone. And
I am not sleeping with anyone”.[xix] Two
conjectures may be made on the basis of the studies that have been carried out:
One, while money is important, it may not be the sole motivating factor; two,
the women seem to be exercising their choice and entering into surrogacy,
viewing it as mutually beneficial transaction while being convinced about the moral
correctness of their choice.
Informed
Consent
Making meaningful, informed economic decisions must
be distinguished from giving informed consent for surrogacy. The latter lies
within the realm of the law and requires that potential SMs have the ability to
understand complex legal documents. The very characteristics of the parties to
the transaction brings into the picture asymmetries in the availability of
information and in the abilities to process such information. The first barrier
to this is the educational levels of the SMs. Pande reports that, barring one,
none of her respondents had education beyond the school level and, at least, a
few were illiterate: “The SMs have to sign a consent form that
talks about their rights in the surrogacy contract but the form is in English,
a language almost none of the SMs can read”.[xx]
In these circumstances, it is very likely that the IPs and the agency managing
the surrogacy would have superior education and economic resources which might
be used to manipulate contractual provisions against the interests of the SMs.
Mental and Physical Health of SMs
Getting the SMs
ready for pregnancy involves strong medical interventions and the “side
effects of these medications can include hot flashes, mood swings, headaches,
bloating, vaginal spotting, uterine cramping, breast fullness, light headedness
and vaginal irritation”.[xxi]
Probably, none of the SMs are fully aware of the extent of the medical
interventions and their side effects, placing their faith in the doctor who
deals with them.
Ban versus Better Regulations
Having
discussed the important issues related to surrogacy, the question that must be
answered is whether banning surrogacy will protect potential SMs from
exploitation? The problem with banning is that the activity being banned is,
generally, forced underground. So long as there is value in a transaction, a
ban will not extinguish this value and an illegal market will emerge to exploit
the value of the banned transaction. In an imaginary world, one could claim
that perfect policing and perfect enforcement would ensure that illegal surrogacy
markets cease to exist. But, in the real
world, one cannot repose such faith in the omniscience and omnipotence of the
regulatory State. If this were, indeed, true, illicit markets for alcohol would
have long disappeared in the Indian states which have introduced prohibition. A
ban on surrogacy markets will likely face a similar fate and it requires little
imagination to realise that the interests and welfare of SMs will be even more
threatened in the banned markets.
The
alternative to banning is more effective regulation. Will better regulations
protect the interests of all parties to the transaction, especially the SMs and
the IPs? Even with a well-established
regulatory framework, it must be remembered that incompleteness of contracts could impose severe hardships on
SMs and even IPs. Incompleteness of contracts refers to the inability to
foresee all contingencies that may arise in a transaction as
well as to specify the action that each party must take in each possible
contingency. This inability arises out of the bounded rationality[xxii] [xxiii]
of the parties to the contract. Problems arising out of the
incompleteness of contracts are exemplified by a few well-known cases, for
example, the case of baby Manjhi;[xxiv]
the case of Baby M;[xxv]
and the case of the baby with disabilities.[xxvi]
In addition, one must guard against opportunism – such as lying,
cheating as well as incomplete or distorted disclosure of information – as one more
obstacle to writing complete contracts. All of these manifestations of
opportunism are likely to be present in the transaction that a SM would have to
enter into. Guarding against such incomplete contracts and providing succour to
aggrieved parties would be better served, not by banning surrogacy markets, but
through remedial action available under better regulation.
Summing
Up
Despite all the problems and
disadvantages that might be faced by the SMs in the surrogacy market, I view
banning surrogacy as an instance of the government abdicating its
responsibilities towards Indian SMs and leaving them to fend for themselves in
the underground market that will inevitably emerge. What should the government
do in such a situation? Here are a few preliminary thoughts for regulating the
surrogacy market:
·
The government, with all the legal resources
at its command, must draw up a model surrogacy contract that must
be used in every surrogacy contract. Given the problems with writing complete
contracts, such a model contract may also be incomplete but, at least, not
willfully so.
·
A minimum payment must be determined for
the SM. The entire payment from the IPs must be placed in an escrow account at
the time of signing the contract.
·
Given the widely-touted spread of the Jan Dhan Yojana[xxvii],
money in the escrow account should be transferred, as per a predetermined
schedule, to the SMs bank account with the final payment being made after the
handover of the baby.
·
Details of the SM should be linked to
her Aadhar
Card[xxviii]
which should include all relevant details, especially about previous
surrogacies.
Endnotes
[i] Ministry of Health and Family
Welfare, Government of India:
https://twitter.com/MoHFW_INDIA?ref_src=twsrc%5Egoogle%7Ctwcamp%5Eserp%7Ctwgr%5Eauthor
[ii] ICMR (2005) “National Guidelines
for Accreditation, Supervision & Regulation of ART Clinics in India”,
http://icmr.nic.in/art/art_clinics.htm (accessed 3 September).
[iii] Jennifer Rimm (2009) “Booming
Baby Business: Regulating Commercial Surrogacy in India” http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1837&context=jil (accessed 1 September 2016)
[iv] Richard Posner (1989) “The
Ethics and Economics of Enforcing Contracts of Surrogate Motherhood”, http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2809&context=journal_articles (accessed 1 September 2016).
[v] Aristides Hatzis “'Just the
Oven': A Law & Economics Approach to Gestational Surrogacy Contracts” http://papers.ssrn.com/sol3/papers.cfm?abstract_id=381621 (accessed 1 September 2016).
[vi] Kristine Schanbacher (2014)
“India's Gestational Surrogacy Market: An Exploitation of Poor, Uneducated
Women”, Hastings Women’s Law Journal, Vol. 25 (2), http://repository.uchastings.edu/hwlj/vol25/iss2/5/ (accessed 3 September 2013)
[vii] Jennifer Rimm (2009) p. 1444
[viii] “Surrogacy by Country”, http://www.familiesthrusurrogacy.com/surrogacy-by-country/ (accessed 1 September 2016)
[ix] Nita Bhalla and Mansi Thapliyal
(2013) “Foreigners Are Flocking To India To Rent Wombs And Grow Surrogate
Babies”, http://www.businessinsider.com/india-surrogate-mother-industry-2013-9 (accessed 1 September 2016)
[x] For an alternative estimate, see
Ritika Mukherjee (2015) “The Baby Business: A Study on Indian Market of
Commercial Surrogacy and Its Implications”, http://paa2015.princeton.edu/abstracts/152404 (accessed 1 September 2016)
[xi] Amrita Pande (2009) “Not an
‘Angel’, not a ‘Whore’: Surrogates as ‘Dirty’ Workers in India”, Indian Journal
of Gender Studies, Volume 16 (141), http://ijg.sagepub.com/content/16/2/141.short?rss=1&ssource=mfc (accessed 1 September 2016)
[xii] Vasanti Jadva and others (2003)
“Surrogacy: the experiences of surrogate mothers”, Human Reproduction Vol.18,
No.10, http://humrep.oxfordjournals.org/content/18/10/2196.full.pdf+html
(accessed 1 September 2016)
[xiii] Amrita Pande (2009) page 150
[xiv] Amrita Pande (2009) page 150
[xv] Sheela Sarvanan (2013) “An
ethnomethodological approach to examine
exploitation in the context of capacity, trust and experience of
commercial surrogacy in India”, Philosophy, Ethics, and Humanities in Medicine,
Vol. 8(10), https://peh-med.biomedcentral.com/articles/10.1186/1747-5341-8-10 (accessed 3 September 2016)
[xvi] Sheela Sarvanan (2013) page 6.
[xvii] Vasanti Jadva and others (2003),
Table II.
[xviii]
See also Susan Imrie and
Vasanti Jadva (2014) “The long-term experiences of surrogates: relationships
and contact with surrogacy families in genetic and gestational surrogacy
arrangements”, Reproductive Biomedicine Online,
Vol. 29 (4), http://www.sciencedirect.com/science/article/pii/S1472648314003538 (accesses 4 September 2014)
[xix] Amrita Pande (2009), page 157;
emphasis in the original
[xx] Amrita Pande (2009), page 147
[xxi] Amrita Pande (2009), page 147.
[xxii] Oliver Williamson (1985): The
Economic Institutions of Capitalism. Free Press: New York.
[xxiii] Milgrom, P and J Roberts (1992):
Economics, Organisation, and Management, Prentice-Hall: Englewood Cliffs, NJ.
[xxiv] Sara Sidner (2008) “Surrogate
baby stuck in legal limbo” , http://edition.cnn.com/2008/WORLD/asiapcf/08/12/surrogate.baby/index.html?iref=24hours (accessed 3 September 2016)
[xxv] Richard Posner (1989)
[xxvi] Harry Aslop (2013) “US surrogate
mother Crystal Kelley flees after baby's parents order her to abort foetus”, http://www.telegraph.co.uk/news/worldnews/northamerica/usa/9910263/US-surrogate-mother-Crystal-Kelley-flees-after-babys-parents-order-her-to-abort-foetus.html (accessed 3 September 2016)
[xxvii] Prime Minister’s Jan Dhan Yojana is designed to provide
all households, urban and rural, to gain easy and universal access to financial
services including banking, http://www.pmjdy.gov.in/ (accessed 3 September 2016)
[xxviii] Aadhar Card is designed to provide a unique identification number
to every Indian, https://uidai.gov.in/ (accessed 3 September 2016)
