The End of Rent-a-Womb for the West?
The Indian Government should step back from its move to ban commercial surrogacy for foreigners. The policy further restricts the choices of those in poverty and will have a damaging effect on the lives of the people it is designed to protect.
In recent weeks the Indian Government has indicated that it plans to ban commercial surrogacy for foreigners. The Ministry of Health has published a draft bill prohibiting foreigners employing Indian surrogates and issued letters to fertility clinics across the country requiring that they halt the practice. This move will no doubt be welcomed by many campaigners who view it as an unseemly and deeply exploitative practice. I think their view is profoundly mistaken; this legislation will hurt those it is designed to help and punish those it is designed to protect. The move to ban commercial surrogacy serves as another example of those in positions of privilege making decisions on behalf of the poor. We would do better to focus on trying to change the unjust conditions that make these kinds of choices necessary and on providing protection for the parties involved, rather than further restricting the options of those who find themselves in these dire circumstances.
Commercial surrogacy is big business in India. There is no completely reliable estimate of the worth of the so-called “rent-a-womb” industry; they range from $400m per year in one United Nations backed study to over $2bn dollars in another by the Indian Chamber of Commerce. What we can say with some certainly is that the practice has grown significantly in recent years, as India has benefitted from its status as one of the few countries in the world it is legal. In most developed countries commercial surrogacy is completely prohibited and even in countries where the practice is legal, such as Israel, Russia, the Ukraine and some states in the U.S, India provides a cheaper alternative. This makes India an attractive destination for this kind of medical tourism and in 2012 there were thought to be around 12,500 children born each year to Indian surrogates from Western parents.
As the practice has grown, it has attracted increasingly vocal criticism from commentators. It is held up to be symptomatic of the worst excesses of globalisation – a stark example of Western exploitation of the developing world. Critics claim that wealthy, predominantly Western, couples are exploiting the vulnerability of those in poverty to secure surrogacy on the cheap. A study by the The Centre for Social Research, a New Delhi based advocacy group, found that surrogates do tend to work in low skilled occupations and come from very poor backgrounds. However, there are two points to note about this argument. The first is that this change in law will only prohibit foreigners from employing Indian surrogates, so the participants will still be permitted to be surrogates for wealthy Indians. As medical tourism dries up the laws of economics will kick in: as demand falls surrogate mothers are likely to receive even less for their services from those who are still permitted to employ them. There is a second, more fundamental, point. While I object to the deeply unfair distribution of resources which forms the backdrop to this question, it strikes me as paternalistic, given that injustice, to then prevent people from making decisions which they think will improve their life. If before surrogates had to make a tragic choice between surrogacy and starvation, at least they had some kind of choice. I cannot see how forcibly taking that away can possibly make them better off.
There is another problem. The surrogates may not have access to sufficient information to make an informed decision. They may not be aware of the risks associated with surrogacy or fully understand the terms of their contract. The majority of surrogates in India have only minimal levels of education and there have been troubling reports of botched contracts, pressure from husbands, women undertaking multiple surrogacies and aggressive recruitment tactics from agencies. The solution to this is problem is regulation not prohibition. Gita Aravamudan, a freelance journalist who has written a book on commercial surrogacy, advocates precisely this position. She urges the Government to impose greater regulation on the industry and provide greater protection for surrogates rather than pursuing an outright ban. She emphasises that even if the practice is prohibited, it is likely that it would continue to flourish on the black market with less transparency and oversight. Given all of this, regulation seems a more credible solution to the problems surrounding commercial surrogacy in India than prohibition.
The challenges of this issue are firmly rooted in an even greater one – the continuing tragedy of poverty. It is the desperate circumstances facing those who are in these conditions - struggling to survive on low incomes and with little or no education – which makes this a difficult ethical question. I do not buy the philosophical arguments that the commercialisation of the body is somehow inherently wrong: Would we be worried if a millionaire was paid to be a surrogate? When the questions are framed by conditions of material wealth, the moral problems seem to me to fade away. The issue is driven by depravation and serves as a stark reminder of the near impossible choices facing those in poverty. We should pause to reflect as to whether it is desirable for the Indian Government to take one of their few remaining choices away.
George Robinson is a Thouron Scholar at the University of Pennsylvania. Before moving to the United States he worked as a policy adviser for HM Treasury. He has an MPhil in Politics from the University of Oxford.