By: Josh Stroud
On Friday, Oct. 27th, the North Carolina Journal of International Law was pleased to welcome Dr. Sharmila Rudrappa, a sociologist at the University of Texas at Austin, at its annual symposium, titled Surrogacy and International Law. Dr. Rudrappa’s current research focuses on commercial surrogacy in India and the Indian government’s recent efforts to regulate the practice. [i]
Until recently, India had been a booming international nexus for commercial surrogacy, a contractual arrangement in which an individual or couple pays a woman to carry and deliver a baby. India’s recent legislative efforts to ban commercial surrogacy are aimed at curbing abuses of the practice; however, the new regulations may have unintended consequences for Indian women and their labor rights. Dr. Rudrappa argues that the commercial ban deregulates the industry, misreads the problem, and exports the problem.[ii]
The commercial surrogacy ban is the most recent chapter in India’s attempts to regulate the practice.[iii] India first legalized commercial surrogacy in 2002 and set non-enforceable guidelines through a series of pro-industry bills.[iv] The Surrogacy Regulation Bill of 2016 imposes a sweeping ban on commercial surrogacy, aimed at excluding foreigners, while permitting domestic altruistic surrogacy, allowing Indian women to carry children for relatives without compensation.[v]
Dr. Rudrappa largely focuses on the commercial surrogacy ban’s effect on surrogate mothers and the valuation of their reproductive labor.[vi] She argues that India’s support of altruistic surrogacy appears to curb one set of abuses but may also expose surrogate mothers to another.[vii] She locates altruistic surrogacy within India’s history of reproduction public programs and class labor struggle.[viii] While commercial surrogacy recognizes and compensates surrogate mothers’ labor as part of a commodity exchange, altruistic surrogacy moves the process toward a regressive gift exchange.[ix] Deregulation removes defined protections, leaving surrogate mothers to rely on the presumed goodwill of families and kinship networks. The proposed system is based on paternalistic attitudes towards women, suggesting that commercial surrogacy commodifies the reproductive process which should be a woman’s natural duty.[x]
Dr. Rudrappa then discussed how India’s ban on commercial surrogacy has merely exported its problem, highlighting troubling practices of commercial surrogacy brokers, contemplated but not always fully addressed by India’s ban.[xi] While acknowledging how illiteracy among surrogate mothers leads to unfair contracts, onerous commission fees, and little recourse for breaches of contract, a ban does not solve that problem.[xii] In light of national commercial bans, brokers are simply shifting operations to commercial surrogacy-friendly nations like Kenya, Nepal, and Thailand and utilizing a fly-in, fly-out model: bringing surrogates, medical staff, and genetic donors (parents) to the host-country for the fertilization procedure.[xiii] Surrogates then carry the pregnancies in their home countries and return to the host nations for delivery.[xiv] C-section deliveries are standard, further regimenting the process to meet clients’ travel schedules.[xv] Nepal gained notoriety as a commercial surrogacy hub during its 2015 earthquake; the parents and children were airlifted out while the Indian and Nepalese surrogates remained behind.[xvi] In short, despite bans, exploitation of Indian surrogate mothers will continue as commercial surrogacy using Indian women thrives in neighboring states.[xvii]
Dr. Rudrappa also noted the murky legal issue of multiple births, a common result of IVF techniques.[xviii] Parents typically contract for a specific number of children, and embryos are often “selectively reduced” to meet targets, raising issues of morality and the validity of contractually-obligated reductions.[xix] Of further concern, surplus children may lack legal parentage and even disappear into human trafficking operations.[xx]
Dr. Rudrappa concluded by suggesting measures for protecting women’s rights and promoting reproductive justice which the Indian government might adopt.[xxi] Examples include legalizing commercial surrogacy as well as regulating the practice by allowing surrogate mothers to engage in collective bargaining, to maintain relationships with their children, and to issue birth certificates listing the surrogate as the legal mother.[xxii] These reforms would create a framework which regulates the surrogacy industry while protecting and empowering surrogate mothers.
[i] Sharmila Rudrappa (Sociologist, The University of Texas at Austin) Address at the University of North Carolina Journal of International Law Symposium: Why Bans on Commercial Surrogacy can be Bad for Women: The Case of India (Oct. 27, 2017).
[v] The Surrogacy (Regulation) Bill, No. 257 of 2016, Gazette of India pt. II, sec. 2, http://www.egazette.nic.in/WriteReadData/2016/172731.pdf.
[vi] Rudrappa, supra note 1.
[ix] Id. In using this terminology, Rudrappa is working within a tradition of anthropologists and political theorists who have considered the gift exchange culture in terms of an “primitive”/“archaic” past based on inequalities and social hierarchy.
[xii] Rudrappa, supra note 1.
[xvi] Debra Kamen, Israel Evacuates Surrogate Babies From Nepal but Leaves the Mothers Behind, Time (April 28, 2015), http://time.com/3838319/israel-nepal-surrogates/.
[xviii] Rudrappa, supra note 1.