While India doesn’t have a law on surrogacy yet, the government has recently stated, in an affidavit before the Supreme Court, that it doesn’t support commercial surrogacy but will allow it for altruistic reasons to infertile married Indian couples. Critics say, the solution is not to ban but to legalise surrogacy and erase its moral repugnance, so that surrogates are respected as agents of their own life choices and not patronised or judged. But critics are wrong: Legalising commercial surrogacy is a superficial solution that will do more harm than good to surrogates in the long run.
The argument against banning commercial surrogacy is based on two main premises. First, critics say, the proposed ban will not prevent surrogacies but only create a black market for them. In this scenario, surrogates will have fewer legal rights and less bargaining power, including reduced access to quality healthcare. Second, critics say, the government’s notion of altruism smacks of paternalism because it restricts women to culturally-constructed gender roles of self-sacrificing care-givers, overlooking their contribution as workers, and coercing them to provide surrogacy services for free.
What critics overlook, however, is that even though a woman makes a choice, albeit from limited options, when she becomes a commercial surrogate, her consent may still be tainted. In most cases, a commercial surrogate, even when informed about her rights and given access to good quality healthcare for the period of her surrogacy, is handicapped by economic disprivilege and disparity. She can neither bargain on an equal footing with those who have far more money, power and knowledge than she has nor resist the brainwashing and pressure from others to sell her womb. Legal or not, then, the contract a surrogate makes with middlemen and prospective parents runs a high risk of being exploitative even though it’s made with her consent. Even when voluntary, it’s a decision a woman makes from a location of disempowerment and disadvantage.
Critics ask, whether banning commercial surrogacy will reverse the inherent situatedness of these women, given the reality of India’s poverty and the growing international demand for genetic babies. Perhaps not in the short run. But, in the long run, it might prevent social hierarchies, wherein the poor are made to service the rich by default, or wherein girls who’re considered ‘lacking in talent or beauty or intellect’ are pushed into becoming professional surrogates because ‘there’s nothing wrong’ with it. The problem with commercial surrogacy, in other words, is that it denies opportunities for poor women to explore their talents, and to use those talents to become financially and emotionally independent.
But, ask critics, what if a woman wants to sell her womb to educate herself or nurture her talents and become independent? Isn’t that empowerment?
No, it’s not. By making it acceptable to exploit women for their poverty and lack of good fortune and guising it in self-serving notions of ‘wresting-agency’ and ‘freedom of choice’, commercial surrogacy lifts responsibility from the larger community to care about and work towards a better life for the less well-off. Moral repugnance, then, lies not in blaming and shaming women for choosing commercial surrogacy. It lies in society’s indifference towards them, in its lack of political will to offer them real — not faux — life choices.
Moral repugnance aside, however, commercial surrogacy is also inherently paradoxical. It misunderstands the nature of parenthood not only because it allows the buying and selling of babies — or the commodification of love — but because it requires the surrogate to break the very bond that the buyers seek to establish with the genetic child. Unthinkably and unjustly, it also requires the surrogate to give up one child in order to feed or educate her other children or her own self.
Chances are, if women aren’t offered substantial sums of money, few would be willing to become surrogates for the sake of ‘altruism’. Therefore, it is commercial surrogacy, masquerading not only as a viable ‘work’ option but also a noble act that forces women to sell their wombs, and to do so for a pittance. Real altruism, where there’s no over-or under-the-table reciprocity of benefits in cash or kind because surrogates are neither financially desperate nor oppressed in their decision-making, truly empowers women (and men) because then surrogacy is a free choice — it’s made from a position of enlightened self-interest, and not self-sacrifice and compromise.
The way forward lies not in sophistry so that if we don’t have the will to fight poverty or the demand for commercial surrogacy, we simply change its definition and legalise it. The solution is to increase citizen’s awareness and participation in civic issues, so that we don’t give up on the idea of a better India, and a fairer, more compassionate world especially for those who’re compelled to put even their wombs up for sale.
Nandita Patel is a commentator on social issuesThe views expressed are personal