Surrogacy

ABSENCE OF MONETARY EXCHANGE AND EXPLOITATION: An Altruistic Surrogacy Perspective

by Sanchit Sharma

Introduction

 “Acts of self-sacrifice enhance the position of beneficiaries to the detriment of benefactors and are to this extent exploitative and thus morally unacceptable.”

Surrogacy is a practice whereby one woman bears and gives birth to a child for an intending couple with the intention of handing over such child to the intending couple after the birth.[1] Paying a monetary compensation to the surrogate for her reproductive labour makes such an arrangement a commercial surrogacy agreement, whereas the inverse gets called as an altruistic surrogacy agreement. Surrogacy, since its inception, has been a topic of moral and legal debate with the ‘exploitation’ of surrogates through the mode of commercial agreements being one of the most emphasised facets of this discourse. Constituents like economic globalisation,[2] a neo-liberal thought process[3], and the perception of surrogacy from a western feminist scholarship[4] has degraded the value of commercial surrogacy which has led to it being termed as exploitative in addition to being regarded as a taboo trade.[5]

The biggest adjudicating factor behind the notion of exploitation, however, is that of monetary compensation. It is argued that since a woman is yielding her services of reproductive labour motivated by a monetary reason, the value of such a transaction is not “pure” as it puts a price tag on the baby[6] and the model subsequently exploits women who are socially and economically disadvantaged.[7] Altruistic surrogacy, on the other hand, being void of any compensation is considered noble and free for women to partake without having to face any social stigma[8] as it comes appended with the assumption that altruistic surrogacy is not exploitative. Altruism has become an ethical standard for an affirmative assessment of non-commercial surrogacy.[9]

This begs us to answer a rather important question, ‘Does the absence of monetary exchange indicate lack of exploitation?’ Ergo, in the following article, the author has attempted to shed light on the subject matter of how various factors could make altruistic surrogacy equally exploitative as opposed to the flawed assumption of being otherwise, while taking into account the Surrogacy (Regulation) Act, 2020 and the proposed changes thereunder.

Why is Altruistic Surrogacy Exploitative?

FORCED LABOUR

The Surrogacy (Regulation) Act, 2020 has penalized commercial surrogacy[10] and primarily works on the assumption that surrogates in an altruistic agreement will not be exploited as opposed to those engaged in a commercial agreement. It blatantly ignores the fact that unpaid surrogacy can also be exploitative.[11] In an altruistic agreement, it is expected of a surrogate to go through the excruciating physical pain of bearing a child, not to mention the emotional pain of bearing someone else’s child and giving it away, staying immobilized for months—jeopardizing her source of income, going through a change of behaviour, risk infertility, and other severe repercussions involved with childbirth[12] only out of ‘compassion’, totally free of cost and motivated by a sense of altruism. This appears to be a bad deal wrapped in a pretty paper because the surrogate in question is essentially being used as a vessel even if she’s told otherwise. The only thing that the surrogate gets is a halo of altruism which is a very low price for her reproductive labour.[13] The irony of such a proposition is that through its ‘altruistic model’, it promotes forced labour[14] and is self-contradictory to the very nature of the act.

Additionally, the main objective for any surrogate is to get herself out of tiring manual labour that pays meagerly for harrowing work hours and to have a better life for sustaining herself and her family to avoid exploitation. But the altruistic model, instead of upping the ante for women’s rights in the right direction of avoiding exploitation places them back to square one, i.e., deep within the bowels of exploitation tied with forced labour. Now, herein, this is not to say that a surrogate could never be motivated by the spirit of altruism; she could be, however, the argument that an altruistic surrogacy agreement could never be exploitative in any circumstance is also erroneous.

EXPLOITATION WITHIN THE FAMILY

When a woman becomes a surrogate for a monetary reason, it is often looked down upon. But when her reproductive labour is used without a charge within her family, she’s free to participate in such a role.[15] This unrealistic societal standard is degrading, discriminatory, and something that we have failed to acknowledge, because one may argue that as long as the surrogate is not getting paid and the agreement is within the family the surrogate will not be exploited. This contention is highly disputable as the question of a surrogate’s autonomous decision free from coercion, particularly in a complex family context arises. For instance, in a commercial surrogacy agreement, the surrogate acts on her free will and may accept or reject the intended parents; showing autonomy in the process. However, in an altruistic surrogacy agreement—one within the family—there is a greater likelihood for a surrogate to get exploited of said coercion in her decision-making process.[16] In addition to being forced to act as a surrogate, she may also get harassed by her in-laws and forced to give birth to a male-child and could potentially suffer from domestic violence if she fails to deliver—a practice fairly common in India.[17] Additionally, the surrogate is expected to donate herself in the form of time, energy, and body, because if she doesn’t, she shall get exposed to disapproval or penalty,[18] making her feel guilty for her disapproval of not acting as a surrogate.[19]

For instance, in the famous US case of Munoz v Haro,[20] the plaintiff discovered that she was manipulated to become a surrogate by her cousin in exchange for assistance in crossing the border and migrating into the United States. Against her will, she was pressured to carry the baby to term by her family members.[21][1] [2] 

Therefore, it is clear that exploitation from within the family may reinforce the difficulty, if not impossibility, for a surrogate to give her informed consent.

PSYCHOLOGICAL FACTOR

A surrogate has to sustain the emotional wallop of giving up a baby that she has carried for nine months—placing a massive psychological impact on her.[22] In one research it was concluded, while most surrogates do not identify as mothers, they often wish to sustain contact with intended parents and children, and such contact is key to emotional stability and satisfaction.[23] Therefore, in an altruistic agreement, especially the one within the family and or with friends, the surrogate would have to endure the psychological impact of seeing that child every day, making the entire process an ethical quagmire that she would have to sustain for her life.[24]

UNCLEAR EXPECTATIONS

Relationships between parties to an altruistic exchange are typically more enduring and complex. So as opposed to commercial surrogacy where the expectation of returns is predetermined, in an altruistic agreement, the returns a surrogate would get are unclear, and therefore, so are the expectations.

The rewards are either highly arbitrary or practically not existent; a surrogate could be rewarded with a house or a simple ‘thank-you’. An unfortunate result of this is that friendly relationships between the surrogate and the intending couple could go sour, with the surrogate feeling that her expectations have not been met, or that, because of her kindness, she has been taken advantage of.[3] [4] 

Conclusion

Kraweick argues[5] [6] that women have always been considered primary suppliers in the markets for sex and reproduction. And in some societies like ours, it seems that sexual and reproductive labour is the only valuable asset held by females.[25]This position, therefore, is actively exploited while the question of monetary exchange remains moot. It has to be understood that exploitation is immaterial to monetary compensation, as it happens nevertheless and the woman in question, or as in this case—the surrogate, has absolutely nothing to gain and possibly much to lose from this act of altruism, thereby, bearing the brunt of such exploitation.

Thus, the question, perhaps, was never about the absence of monetary exchange or policy formation, to begin with; it was always about the rights of a woman and her autonomy in a degrading societal construct. A product of this social construct is the narrow understanding of altruistic surrogacy and the blatant denial to accept its challenges. Raymond can contribute to this notion as she contends, “altruistic surrogacy…should be assessed within the wider context of a woman’s political inequality.”[26] Additionally, atop these degrading norms and lashing exploitation, it appears that even though the lawmakers have worked for upping the ante for women rights, the effort seems rather unyielding and counterintuitive as the exploitation of women from the suggested policy changes, i.e., from commercial to altruistic models, still leaves the question of exploitation in place and unanswered. Coupled together, this is a rather clear indication that exploitation, even in the absence of monetary exchange, in an altruistic surrogacy agreement is still possible. Hence, it is pleaded that the reality should be taken wholesale because it’s lived wholesale.

Views are personal.

Image credits: Provided by the author.

ABOUT THE AUTHOR

Sanchit Sharma is currently pursuing law from Himachal Pradesh National Law University, Shimla.


REFERENCES

[1] The Surrogacy (Regulation) Act, 2020, c1, s2, c(zd), sc(c)

[2]SAMA- Resource Group for Women and Health, ARTs and Women Assistance in Reproduction or Subjugation? 67 (2006).

[3]Dr. PM Arathi, A Study To Understand The Legal Rights And Challenges Of Surrogates From Mumbai And Delhi 26 (National Human Rights Commission, 2010)

[4] Alison Bailey, Reconceiving Surrogacy: Toward a Reproductive Justice Account of Indian Surrogacy, 26(4) Hypatia. 716,  715-741 (2011).

[5]Kimberely D. Kraweick, A Woman’s worth, 88(5) North Carolina Law Review. 1742, 1739-1769 (2010).

[6] The author shall not deal with this contention here, except perhaps to note that if paid surrogacy amounts to baby-selling, then non-paid surrogacy amounts to giving away the baby as a gift, which seems equally objectionable for the same reason, namely that it involves treating the child as a meager object.

[7] Brenda M. Baker, A Case for Permitting Altruistic Surrogacy, 11(2) Hypatia. 35, 34-48 (1996)

[8]Janice G. Raymond, Reproductive Gifts and Gift Giving: The Altruistic Woman, 20(6) The Hastings Center Report. 10, 7-11 (1990)

[9]Id. at 8

[10] The Surrogacy (Regulation) Act, 2020, c7, s37, ss(1)

[11]Parliament of India, Report of the Select committee on The Surrogacy (Regulation) Bill 2019, Rajya Sabha. 21, 1-67 (2020); ManjariRammohan, Parinita Kare, Economic Analysis of Commercial Surrogacy, 2(4) Journal of Legal Studies and Research. 48, 45-54 (2016). See also: Lizel, Supra note 2, at 9.

[12]Lizel, Supra note 2, at 5.

[13]Kajsa Ekis Ekman, All surrogacy is exploitation – the world should follow Sweden’s ban, The Guardian (July. 27, 2020), https://www.theguardian.com/commentisfree/2016/feb/25/surrogacy-sweden-ban

[14] Report, Supra note 11, at 21.

[15]Sharyn L. Roach Anleu, Reinforcing Gender Norms: Commercial and Altruistic Surrogacy, 33(1) Acta Sociologica. 70, 63-74 (1990).

[16] M.M. Tieu, Altruistic Surrogacy: The Necessary Objectification of Surrogate Mothers 35(3) Journal of Medical Ethics. 171, 171-175 (2009); Swapnendu Banerjee, Gestational Surrogacy Contracts: Altruistic or Commercial? A Contract Theoretic Approach, 81(3) The Manchester School. 443-444, 438-360 (2013).See also: Janice, Supra note 8, at 9

[17] Anita Raj, ShagunSabarwal, Michele R. Decker, et al, Abuse from In-Laws during Pregnancy and Post-Partum: Qualitative and Quantitative Findings from Low-income Mothers of Infants in Mumbai, India, 15(6) Maternal Child Health J. 700-712 (2011). (The practice being referred to herein is that of inflicted abuse to a pregnant woman, both pre and post-pregnancy. A surrogate, much like any other pregnant woman, would have to suffer the same abuse, as the expectation of beneficiaries would be more or less similar.)

[18] Janice, Supra note 8, at 9.

[19]Sharyn, Supra note 15, at 70.

[20]United States v. Haro-Munoz, Case Number: 12CR2569-LAB (S.D. Cal. Sep. 24, 2012)

[21] Abigail Lauren Perdue, For Love or Money: An Analysis of the Contractual Regulation of Reproductive Surrogacy, 27(2) Journal of Contemporary Health Law and Policy. 292, 279-313 (2011)

[22] M.M., Supra note 16, at 171; Brenda, Supra note 7, at 35.

[23] Jenny Gunnarsson Payne, Elżbieta Korolczuk & Signe Mezinska, Surrogacy relationships: a critical interpretative review, 125(2) Upsala Journal of Medical Sciences. 189, 183-191 (2020).

[24]Following contention could also be used against a commercial surrogacy agreement and could very likely be true. However, in a commercial surrogacy transaction, the outcome is clear; the surrogate is aware that after birth, she has to give up the baby. Whereas in an altruistic agreement, even after having known the result, meeting the child could have a deep psychological impact on the surrogate. Refer Swapnendu, Supra note 16, at 443.

[25] Kimberly, Supra note 5, at 1742.

[26] Janice, Supra note 8, at 7.


Leave a Reply