Pub. Info- “Commercial Surrogacy and Feminist Perspectives” by Sonali Kusum, Karnataka Law Journal, Vol. 1st July, 2013, Part -13, ISSN No. – 0022 – 9091.
Abstract : Surrogacy has emerged as one of the fastest growing modern assisted reproductive technique (ART) in which a woman carries in her womb the baby of another woman for monetary return thus it assisting the infertile couples to achieve parenthood with child of their biological origin. Such forms of Surrogacy where money is involved and the surrogate acts for hire is called commercial surrogacy Surrogacy is also popularly called as “Womb Renting Business” in crude terms as it involves use of the woman’s private body organ for hire in exchange for money. This has been more criticized than welcomed so far in India as well in rest of the world. As infertility has been on the rise worldwide , Surrogacy has come to remedy the same at the same time there are less developed or developing nations like India where there is abundant availability of women folk to act as surrogate mothers for hire , these women economically constrained or poor , have low literacy level or largely uneducated, with no occupation and belong to poor socio economic background makes possible easy supply of surrogate mothers , under such dire economic conditions these women yield in to Surrogacy with or without choice as they view it as a compelling choice for making money.
However Surrogacy has raised several Socio Legal and ethical issues and concerns , to begin with the very conceptualization of surrogacy is implies contract regulated pregnancy making pregnancy an alienated market labour for sale, it causes Fragmentation of motherhood into three competing mothers , it is also equated to prostitution , it is linked with socio economic exploitation of poor women in less developed or developing nations , over medicalization of female body , reinforcing patriarchy
There has been debates among the leading Feminist scholars and Experts on these lines , but this has been viewed differently among different Feminist Schools of thought , Feminists are divided on the same , The paper seeks to study the leading schools of Feminist thoughts on Surrogacy by Liberal , Radical Cultural, Marxist , Social , Utopian school of feminism and seeks to weigh the ideological debates among these and develop a feminist perspective on surrogacy which will safeguard the interest of surrogate mothers and urges the application of feminist theories and feminist legal methods.
Meaning & Definition of Surrogacy
The word surrogacy has been derived from the Latin word surrogatus meaning a substitute that is a person appointed to act in place of another. Black’s Law Dictionary defines Surrogacy as surrogacy means the process of carrying and delivering a child for another person.
As per the draft Assisted Reproductive Technology ART (Regulation) Bill 2010 means an arrangement in which a woman agrees to a pregnancy, achieved through assisted reproductive technology, in which neither of the gametes belong to her or her husband, with the intention to carry it and hand over the child to the person or persons for whom she is acting as a surrogate. In simple terms Surrogacy is an assisted reproductive technique in which a woman carries in her womb the baby of another woman.
Forms of Surrogacy
There are different forms of surrogacy , it varies in practice, These forms of surrogacy are based on the genetic contribution and carrying of the foetus by the surrogate as following:
“Gestational surrogacy” is a form of surrogacy in which one woman (the genetic mother) provides the egg, which is fertilized, and another woman (the surrogate mother) carries the foetus and gives birth to the child.
“Traditional surrogacy” is a form of surrogacy in which a woman provides her own egg, which is fertilized by artificial insemination and carries the foetus and gives birth to a child for another person.
Two forms of surrogacy based on the payment of money as consideration to rendering of service as surrogate as following:
“Altruistic surrogacy” is a form of surrogacy where the surrogate receives no financial returns or monetary inducement for her letting her womb to be conceive the child following the relinquishment of the child out of charitable interest or out of love and affection, all expenses related to the pregnancy and birth are paid by the intended parents such as medical expenses, maternity clothing, and other related expenses.
“Commercial surrogacy” is a form of surrogacy where the surrogate receives surrogate receives financial returns or monetary inducement for her letting her womb to be conceive the child , carrying for nine months and delivering following the relinquishment of the child only for money or commercial purpose and no other, her the surrogate is made to enter into an agreement by the intending couple stating the fact that the reproductive service of surrogate mother for availing of her pregnancy is paid for and the child so born will not belong to her and correspondingly the surrogate forgoes all claims of motherhood on the child as she has been expressly paid for the same. This is the rising trend of surrogacy in commercial form.
Commercial Surrogacy in India :
Commercial Surrogacy is legal in India and in many other countries like Ukraine , Israel etc. In India at present there is a draft ART Bill 2010 which provides for commercial surrogacy to be legalized in India however the Bill has not come into effect it is only tabled in parliament and yet awaiting enforcement but at the same time there is a landmark Supreme Court judgement which legalizes commercial surrogacy in India , in first of its kind case of surrogacy before the apex court of India Commercial Surrogacy was held to be legal in India with futuristic effect , This case has gained the precedent value in the absence of the statutory Act on surrogacy at present , this ruling or principle of law of the court or has been reiterated in other High Court case dealing with similar issues on surrogacy in India, thus with the combined reading of these case it is clear that Commercial Surrogacy is legal in India.
In India Commercial Surrogacy has gained a huge momentum, India has become a centre for reproductive tourism where infertile couples from foreign countries come to avail the benefit of surrogacy. The fact of favourable legal condition without any law in effect coupled with easy availability of surrogate mothers in India at a relatively cheaper rate when compared with other nations has earned India the infamous sobriquet of Surrogacy capital of the world. One of the distinguished state which has earned the repute of being cradle of the world is Gujarat of Anand district , it has accordingly been reported in the news items,
This commercial surrogacy has emerged as reproductive tourism in India and is quoted as a half-a-billion-dollar-a-year industry the Law Commission Report of Government India states it “ Surrogacy as ART Industry 25,000 crore rupee pot of gold”.
It is this form of commercial surrogacy which has been debated and discussed among the feminists under respective principles of thought , assessing the interest and welfare of surrogate mothers. Viewing surrogacy from the feminist perspective requires different approach. It begins with the premise that “Surrogacy at its origin is a core feminist issue.” In pursuance of the same, surrogacy is referred to as hiring the reproductive services of women for financial gain usually in the interest of infertile couples this has generated divergent debates among the feminist .
Feminist Perspective on Commercial surrogacy :
Feminists are divided on the issue of surrogacy. It is viewed differently under different school of thought of feminism Some feminist like Radical Feminists have criticized commercial surrogacy on the ground of similarity with prostitution and exploitation of surrogate mothers where as other feminist like Liberal feminist has not only abstained from criticism but also they view commercial surrogacy as liberating women and giving women equal independent right to make use of their bodily organ as men.
Feminist Schools of thought & Commercial Surrogacy :
It is the first school of feminist jurisprudence, it started as early as 1960 ‘s in the United States it is also called as Traditional feminism, equity feminism or individual feminism. The main spokesperson of this school are Mary Wollstonecraft, John Stuart Mill, and Harriet Taylor, Professors Wendy Williams, Herma Hill Kay, and Nadine Taub, Justice Ruth Bader Ginsburg. The main ideological tenets of this school is that it is based on equality doctrine and individualism, this school promotes equality doctrine that is equal access to rights to women on par with man and emphasizes on focuses on freedom right of individual ability to make free choices, thus seeks equal right of women to enter into surrogacy agreement giving women i.e the surrogate mothers an independent choice to enter into an agreement to make money thus liberating the women from the confinement of household and domestic chores and thereby also securing equal rights of men and women in terms of making reproductive choice with respect to womb and egg donation for money as sperm donation for men in return for money. the Liberal schools permits commercial surrogacy on the ground of individual autonomy , procreative liberty and choice making , it views surrogacy as a new forum for women to exercise freedom to make decisions regard to the use of body and bodily organs ,to enter contracts for the same as men practice it in terms of sperm donation , thereby equalizing the reproductive opportunities of men and women in financial terms. This view is supported by Martha Nussbaum, Betty Friedman, John Stuart Mill, Lori Andrews. An equally contrasting position to liberal is brought forth by Radical School.
Radical School :
Radical feminism started in early 1970’s it started as a political movement to end the male supremacy in all areas of social economic life. It voiced for `equality for women in private sphere of individual like family planning , child care, reproductive rights , the most remarkable being it ‘s strong movement advocating for drive to legalize abortion. The main spokesperson of this school are Professor Catharine MacKinnon followed by Christine Littleton. The main ideological tenets of this school is unlike liberals , this school views that there is male domination and sexual subordination instead of sexual equality between men and women. Radical school observes that that there are essential differences between men women and there are cultural, social, economic, and legal differences between men and women and theses differences have been so constructed in such a way that they contribute to women’s in equality and place women in socially disadvantaged positions,
Surrogacy reduces women’s reproductive labour or pregnancy to a form of alienated labour like any other market labour in market available for hire and surrogacy constitutes dehumanised labour. By making her pregnancy into an alienated labour the surrogate mother is denied of her own perspectives on pregnancy and it cause estranged mother child relation and creates the separation between the mother and baby. Surrogate mother is denied to form her own perspective, feelings decision making in the course of her pregnancy, surrogate mother is required to deliberately abstain from forming or developing any kind of motherly attachment with the child with in her womb, she is bound to relinquish any motherhood claims and custody over the surrogate child as soon as the born , the child is to be handed over to the intending couple at the total exclusion of any claims or any attachment what so ever the surrogate mother may develop during the course of gestation over nine months of pregnancy , the surrogate mother is even denied any decision making with respect to pregnancy related issues like the mode of delivery , the medications and routines etc .
The most significant denial of reproductive rights , the reproductive decision making over right to abortion or right to medical termination of pregnancy is denied to the surrogate mother , these stipulations are contained in the surrogacy agreement made between the surrogate mother and the intending father and have a legal binding force on the surrogate mother to perform the same.
This school views that surrogacy brings about contract regulated pregnancy as discussed above, the terms and conditions in the surrogacy contract becomes binding over the body of surrogate mother and restrict and constrain the bodily autonomy, bodily integrity of surrogate mother, the right to person ‘s is denied to surrogate mother and contracted away in the surrogacy agreement.
Surrogacy is akin to prostitution so it should be prohibited because in surrogacy women makes use of her womb or private organs and her reproductive labour or pregnancy for commercial return and lets the same for hire at price to be availed and makes an agreement to the same effect. Andrea Dorkin the well-known American feminist, states that ‘”motherhood is becoming a new branch of female prostitution where women can sell reproductive capacities the same way old-time prostitutes sold sexual ones but without the stigma of whoring because there is no penile intrusion. It is the womb, not the vagina, that is being bought” thus implying that surrogacy, like prostitution, allows society to equate women with sex and nothing more. Thus, Surrogacy, prostitution both are alike as there is payment of a fee for the use of the body.
Radical School views as opposed to the Liberals that Surrogacy is no choice for women as no woman can rationally choose it, it is exploitative & coercive by it nature , women only out of economic necessity resort to being surrogate as , thus there is no equally lucrative choice for women to earn a good amount of money in such a short span of nine months, in addition to that the women who act as surrogate mothers are illiterate ir with mere school drop out with no occupation , usually confined with in house managing household or domestic affairs and with no familiarity or very little with market phenomena, under such socio economic conditions, the surrogate mother’s choice to resort to act as surrogate mother is only to succumb to the dire economic necessity in order to secure economic needs so that the basic survival family needs are met , ultimately it is no choice on the part of surrogate but a coercive force acting upon them, these poor women belonging to low socio economic background yield in to such coercive force for survival and livelihood again not for themselves but for their family. Thus surrogacy is no free choice at all rather it represents a myth of informed consent of surrogate mother rather it is state imposed economic coercion, as the state has created the social, economic and political situation which ahs left a large section of women illiterate and unable to find a decent occupation , thus under such conditions the sale of some sexual or reproductive capacity is necessary to a woman’s survival.
Surrogacy makes pregnancy a dehumanised labour and lowers the dignity of women, these surrogate mothers are viewed as mere baby producing machines or human incubators. This proposition is against the essential tenets of feminism which seeks to gain liberty and independence for women and reinforces the stereotype against women , It reinforces biological capacity of women cause women to suffer / it is her biological capacity to conceive gestate the child that imprisons her and puts restraint on her liberty.
Surrogacy commodifies a woman’s Body and surrogacy is degrading. The process of surrogacy causes distancing women from our bodies, from our own procreative processes, and from birth. “It is segmentalising women into wombs, eggs, fallopian tubes, and ‘uterine environments It causes objectification of women ,women are discussed as body parts – ‘uterine environments’ which need to be ‘harvested’ and dissected like animals”.
According this school applies this line of thought to surrogacy and views surrogacy as exploitative to surrogate mothers and disadvantageous to women. It is exploitative of her reproductive health and reproductive labour or pregnancy and also builds gain at the cost of her socio economic exploitation. On these mentioned grounds Radicals oppose commercial surrogacy and seek to prohibit it.
Cultural School :
It started in year 1982, this school started taking after Radical feminism. It is essentially a moral counter culture movement which aimed at freeing woman from the imposition of male values and creating an alternate culture based on female values. The main spokesperson of this school is Professor Carol Gilligan, The main ideological tenets of this school is that there is a difference in males and females in moral understanding and ethos based on their cognitive development, there are certain set of moral ethos which are identifiable with male are ethos of right justice and there are certain set of moral ethos namely which are identifiable with female are ethos of care connectedness. Thus, women have a different life experience and this school essentially focuses on difference between man and woman and on the of positive aspect of women’s ethos. It is these differences which lay the foundation for giving women more attention than man or a special attention to woman , unlike the liberal school which holds that there should be equality between male female and equal treatment should be given to them.
Taking considerations these principles, the cultural school joins the Radical school in opposing surrogacy, this school views that surrogacy makes pregnancy contract regulated and makes pregnancy male as pregnancy which is so integral and private to women’s life becomes regulated by the terms and conditions of contract, this contract is drafted in favour man i.e the intending father as it is him who has the paying capacity to hire a surrogate and therefore enters into an agreement with the surrogate mother. Thus man on the basis of their paying capacity could not just avail but also usurp women’s reproductive powers via this Technology ,These surrogacy contracts are usually in the name of the intending father i.e male who hires the surrogate and usually the contract would specify that the birth certificate would bear the name of the intending father, thus the agreement is so drawn to suit the interests of intending father to the extent her basic rights of Right to bodily autonomy , Reproductive Right like Right to abortion are forfeited having been written as terms to be complied by surrogate mother pursuant to surrogacy agreement thus the experience of motherhood is shaped by patriarchy and patriarchal influence is brought in the realm of reproductive privacy of women. This school views that surrogacy regulated by contract are largely reinforcing patriarchy on women’s reproductive and private sphere . Margret Atwood, Carol Gilligan support this above views.
Post Modern Feminism School :
It commenced in early 1990’s , the origin of this school is associated with the literary works / ideologies Foucault, de Beauvoir, as well as Derrida and Lacan. This school is the acceptor of diversity, multiple truths, multiple roles, multiple realities are part of its focus. There is a rejection of an essential nature of women, of one-way to be a woman . This school is also called as post-modernist jurisprudence as critical race feminist jurisprudence. One of the main spokesperson of this school is Margaret Jane Radin who proposes for pragmatist feminist. Radin views postmodern feminism as link between feminism with pragmatism as postmodern feminism rejects abstract universal theory in favour of practical solutions to concrete situations.
Other spokesperson of this school are this school are Drucilla Cornell, Margaret Jane Radin , Frances Olsen, Deborah Rhode, Kartharine Bartlett, The main ideological tenets of this school is to reject notion of “essential woman as proposed by Liberal, Cultural, and Radical, this school observes that here is no such notion of universal essential woman or female experience that can serve as a measure of society’s legal mistreatment of women, There are different categories of women with different experiences , this school seeks to embrace the realities of all different categories of women with their differences women-old and young; rich and poor; black and white and brown; heterosexual and lesbian; as well as educated and uneducated with all possible combinations and multiple perspectives in the construction of women’s realities, thus this school does not focus on women but on plural realties of all individual woman.
Accordingly, It views surrogacy from a “plural motherhoods” perspective introducing heterogeneity in the definition of motherhood by including both the intending mother and the surrogate mother , it captures the diversity of motherhood to take into consideration not only the surrogate mother’s perspective on motherhood but also the intending mothers’ perspective on motherhood . Thus perusing both develops a plural and not a singular perspective on motherhood. It has expanded the perceptions of motherhood to include new forms of motherhood namely intended motherhood, surrogate motherhood, this school views that ART provides the possibility to overcome biological limitations to conceive and to reproduce for infertile intending mothers . It offers the opportunity of motherhood to infertile women and it enlarges women’s choices of voluntary and willed motherhood, that is to have as many children as they want at the time when they would like to have. Thus it is conceded by the feminists that surrogacy may indeed help some women to become mothers, but this is questioned by the some feminists on the ground of denial of collective freedom of surrogate mothers and also on the ground that surrogacy has changed the practice and the meaning of reproduction, in particular that of reproductive choice and reproductive freedom for women and made it more male oriented. Overall this school favours surrogacy as offering pluralistic choice of means to motherhood to women. Judith Butler , Sandy Stone, Christine Delphy espouse these view.
Besides the above mentioned cardinal schools of feminism there are other leading feminist schools of thought namely the Marxist School of feminism and Utilitarian school of feminism offering perspective on Surrogacy.
Marxist School of feminism views surrogacy as an alienated labour available in market as wage contract for a price and facilitated by commercial agreement like surrogacy agreements subject to certain conditions for performance, it also views surrogacy agreement as wage contract with an end product or commodity as surrogate child and means for the same is the bodily reproductive service by the surrogate mother i.e the surrogate mother makes use of the service of her body to produce the baby , that can be treated as separable from her own body and herself. This view is shared by Pateman. Thus according to this school surrogacy may be permitted as any other wage contract labour.
Utilitarian school of feminism views surrogacy as offering the choice of motherhood for Intending Infertile mothers or such intending mothers suffering from biological defect who cannot give birth themselves at the same time this school acknowledges the potential for exploitation of Surrogate Mothers and advocates for strict regulation of surrogacy with appropriate regulations which give consideration to health of Surrogate mother, thus according to this school surrogacy may be regulated but not prohibited . This view is shared by Laura Purdy.
Thus there are divergent feminist views on commercial surrogacy , each school has its own respective stand based on their own philosophy , their contribution has only initiated the debate on regulation of surrogacy from a feminist or women centric perspective. This line of thought gives surrogate mother an important place in the discussion on surrogacy and gives expression to her rights and interest involved in the process of acting as surrogate mother, it is significant that the issues concerning surrogate mother are given due consideration in law drafting or policy making.
Some of the important crucial feminist observations can be summarized as giving primary importance to the reproductive rights , heath of surrogate mother, giving her right to bodily autonomy and freedom to make independent decision making or choice besides it has brought relevant information on the socio economic background of surrogate mother and ensure non exploitation of the same.
Despite their difference of opinion or thoughts , their common objective of all is to seek such regulatory mechanism for surrogacy which would work in the interest of women and cause maximum welfare of women and reduce the exploitation of women to the minimum,
It can be said that the feminist perspectives though failed to provide a uniform approach and short of providing any resolve to the issues raised but never the less it has brought to surface various issues which can be taken into consideration in drafting legal policies to regulate surrogacy , as in most of the countries including laws on surrogacy are only at a nascent stage and similarly India is one such classic instance where the law has not come in effect as present. Thus these feminist perspective on surrogacy can make a meaningful contribution in future law and policy development on surrogacy in India and at the world at large.
 ART Bill 2010 Section 2 aa defines Surrogacy and Section 2 c defines ART as “assisted reproductive technology” (ART), with its grammatical variations and cognate expressions, means all techniques that attempt to obtain a pregnancy by handling or manipulating the sperm or the oocyte outside the human body, and transferring the gamete or the embryo into the reproductive tract;”
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