Is commercial surrogacy exploitive?

In this photograph taken on October 29, 2015, Indian surrogate mothers gather during a peaceful protest on the campus of Dr. Nayana Patel's Kaival Hospital in Anand, some 90 kms from Ahmedabad.

Surrogacy is when a woman carries a baby for another couple. Over the years, India has become a global hub for the practice of women being contracted to carry others' babies, usually for a payment.

The Union Cabinet has approved the Surrogacy (Regulation) Bill, 2016, but it has many problematic provisions.

The Bill proposes to regulate surrogacy by permitting it as an option for couples who cannot naturally have children, lack assisted reproductive options and can find a surrogate mother among relatives.

Altruistic surrogacy, which means an arrangement without transfer of funds, is currently practised in some centres in India, though the majority of surrogacy centres use women who are paid for their services.

Indian infertile couples between 23 and 50 (women) and 26 and 55 (men) who have been married for five years and who do not have a surviving child will be eligible for surrogacy.

The surrogate mother should be a close relative, between 25 and 35 and act as a surrogate mother only once in her lifetime.

Any establishment found undertaking commercial surrogacy, abandoning the child, exploiting the surrogate mother and selling or importing a human embryo will be punished with imprisonment of not less than 10 years.

Parents will be allowed to meet medical expenses of only their "altruistic" surrogate mothers.

Take a pause here to examine the altruistic ethic and what it means for women in the sphere of reproduction.

Endorsing altruistic surrogacy over its commercial avatar is a formal declaration that women are obliged to be (reproductive) gift-givers, and need no compensation for loss of livelihood and the immense emotional and physical labour of gestation involved.

Commercial surrogacy is not new and has been inducing anxiety for decades now.

The commodification aspect repulses some while others are troubled by its potential to be utterly exploitative of women.

In recent years, this anxiety reached panic levels after the technology and the related industry spread to the so-called developing world and the wombs started belonging to women in India, Thailand, Nepal, Cambodia and Mexico.

Unarguably, the limited range of women's alternative economic opportunities makes us question the voluntary nature of this labour.

But unless we want to argue that the existence of inequality makes all economic choices moot, denying Indian women this particular choice seems misplaced.

It also does not fit with the logic applied to other kinds of labour markets, where concerns about inequality and exploitation push us to demand changes and protection for workers, not a ban on the activity involved.

Instead of dismissing this industry as inherently oppressive and the women involved as mere subjects of this oppressive structure, it makes sense to recognise that while some are coerced into surrogacy by their families and brokers, others weigh their options and negotiate with their families in order to participate in this industry.

Only when we comprehensively and sensitively evaluate these multiple realities can we effectively move towards a discussion of appropriate policies.

Most critically, for any policy to actually address the exploitative conditions, what is critical is for us to view the surrogates as workers, and not as wombs, national resources or voiceless victims, so that they are the ones facilitating and participating in dialogues, and not just being discussed or being saved by an anxious patriarchal state.

The rights of children born thus, too, have remained unclear, highlighted dramatically in the case of baby Manji Yamada, whose Japanese parents divorced in the course of the surrogate pregnancy.

Such a dilemma of statelessness has been sought to be prevented with the bar on foreigners.

But given India's failure to administer the ban on organ donations and sex determination tests, it is anybody's guess how effective the ban on commercial surrogacy will be.

The writer is with Eastern Institute For Integrated Learning In Management in Kolkata.