THE cabinet approval of the Draft Surrogacy Bill, 2016 has once again turned the spotlight on the debate on the commodification of women’s reproductive labour. The full draft form of the Bill is yet to be shared in the public domain, but its main features include a total ban on ‘commercial surrogacy’. This has invited sharp retaliation from the medical industry which argues that not only will they incur heavy losses, but the ‘surrogate’ women will also lose on a livelihood option. For some other well meaning women’s groups it is a matter of ‘choice’ and a ‘profession’ which should be regulated and not banned. Therefore at the outset it must be clarified that the question of declaring a ban on ‘commercial surrogacy’ is not a simple one and has diverse answers.

‘COMMERCIAL SURROGACY’

AS AN INDUSTRY

Such perspectives take a rather simplistic view of what is meant by ‘commercial surrogacy’ or conversely what is meant by ‘altruistic surrogacy’. Seen from a point of view of working class women who often act as ‘surrogates’, there can been no surrogacy without remuneration or payment for a service rendered or the rent for a womb in which the embryo is carried for the gestational period. In such a case the ‘surrogate’ is in a relationship of employment for the gestational period. She may be called a ‘mother-worker’, a term used by Amrita Pande in her book Wombs in Labour: Transnational Commercial Surrogacy in India (2014) whose remuneration cannot be classed as ‘commercial’. Hence, the argument of the Assisted Reproductive Technology industry that ‘altruistic surrogacy’ will mean non-payment for the ‘surrogate’ is nothing but a way of covering up their own profiteering practices. Given this situation, the Draft Bill may be better placed to clarify that the term ‘commercial surrogacy’ refers to the organised industrial aspect of ‘surrogacy’ which indulges in profiteering through the employment of ‘surrogates’. These are large firms which own assisted reproductive technology clinics and transnational firms that enable and assist commissioning parents from the North to access surrogates in the countries of the South. India and Thailand are considered hubs of  fertility tourism. It is estimated that in India alone there are more than 3000 registered clinics that perform procedures related to assisted reproductive technologies.

Though there are no reliable figures for the assisted reproductive technology industry, it is estimated that the surrogacy industry in India was worth USD 445 million in 2008, and this had grown to USD 20 billion by 2012. This boom in the market has been a result of the fact that the cost of health care and in-vitro fertilisation is much cheaper in India than anywhere else in metropolitan nations. While the birth of a baby through surrogacy may cost US 80,000 to USD 1,50,000 in the USA, it costs USD 20,000 to 60,000 in India (including travel costs). A comparative costing can be done within India where the famous Akanksha Clinic of Anand charges USD 20,000 to USD 30,000 for international commissioning parents where as others charge between USD 25,000 to USD 40,000 in 2014. It is interesting to note that this cost is even cheaper than cost of surrogacy in Cambodia or Thailand, where US agencies estimate the cost at USD 55,000 and USD 47,500 respectively.

Because surrogacy is low cost in India, the country has emerged as a hub of baby shops that trade in surrogates and embryos. Since the legalisation of ‘commercial surrogacy’ in 2002, about 3000 known clinics have emerged in India. Of these, the clinics in Anand, Gujarat have become the most famous and access their international clients through international IVF agencies. Hence, the surrogate worker is herself trapped in a web of trade and exchange that ensures her exploitation.

CONDITIONS OF WORK

AND RATE OF EXPLOITATION

The surplus extracted from a surrogate worker has almost never been the subject of debate in surrogacy law. It has been argued, that surrogate mothers, who come from the vulnerable communities and the working poor, earn more through one cycle of surrogacy than they may earn in one decade. This argument may be factually true, but the industry has created an aura through it in a manner that makes the surrogate believe that she is the biggest gainer from the whole process. However, such an argument hides the oppressive and exploitative relationships in which these mother-workers and their families are embedded. In order to unravel the underlying relationships of exploitation it is important to understand the position of these workers within the structure of the industry.

The total procedure of gestational surrogacy is costed as per a typical fee structure calculated from the website of Global Doctor Options Including Approximate Hidden Costs as follows:

Note: For 2009 1INR-Rs.50; for 2014 1INR-Rs.60.

Source for 2009 Figures, Global Doctor Options website. Source for Akanksha Clinic:

‘The Centre for India’s Thriving Surrogacy Business Live Mint 3 November 2014.

The table above is self explanatory because it shows the fertility clinics are the biggest gainers out of the surrogacy procedures. A standard package shows that disaggregated services provide a lower profit to the clinic even though they are the biggest beneficiaries. In contrast we see that Akanksha Clinic is a one stop place for parents who want to have surrogate children. In such a case the clinic employs its own personnel and brings down costs thereby reaping a higher profit. In this case, the Clinic acts as a surrogacy recruitment broker, a hospital, and a broker for lawyers and insurance companies.

The figures presented also show that the average surrogacy costs went up by about 60 percent in the period between 2009-2014. But the percentage of compensation to the surrogate mother-worker went up by only 0.4 percent. Interviews with surrogates in 2016 also show that the full amount is never paid to them. This shows that the exploitation of the woman worker actually intensified in the last few years. Further the surrogate compensation costs within developed countries like USA, Britain and Canada range from 30-45 percent of the total cost of reproduction. Apart from this, the commissioning parents also have to pay a sum for the loss of income for the husband who has to look after the family if the surrogate is confined to house. These provisions make surrogacy far more expensive in states where ‘commercial surrogacy’ is not legal.

But quite apart from economic employment, questions have been raised about control and surveillance within surrogacy clinics. Amrita Pande’s detailed field studies show a type of assembly line production system, where control over mind and body is the bedrock of commercial surrogacy. Given this repressive feature, it is appropriate that the element of ‘choice’ in ‘commercial surrogacy’ be revisited. Is it that ‘mother-workers’ or surrogates who work at one third of the price of the cost in advanced capitalist countries because of ‘choice’ or the force of poverty ridden conditions of living. It is important to remind ourselves of this element and motivation if the complexity of the issue is to be properly analysed.  It is also clear that the surrogate workers rights and oppressive conditions of work can never be addressed if the tendency of high profiteering is not controlled in an effective manner. Given this reality, it is important to ensure that prospective laws do not criminalise the surrogate worker. Rather they should control private medical tourism and expand public infrastructure for those who wish to have surrogate children.