Of Freedoms & Agency: Commercial Surrogacy and Reproductive Rights – by Sneha Banerjee

Dr. Sneha Banerjee is a research associate exploring commercial surrogacy in India

On 5-6th December 2019, I participated in the International Conference on (Non)Reproductive Freedom: Theories, Experiences and Movements at the Ca’Foscari University of Venice organised by the feminist journal – DEP. Apart from a larger focus on the conceptual and activist insights on reproductive rights and freedoms, reproductive justice and intersectionality, the conference included quite a few papers on surrogacy addressing the question of commodification, labour, contracts, state-level regulation, transnational complications and its nascent international regulation. My paper, titled, “Commercial Surrogacy & Reproductive Freedom: Reflections from Regulatory Debates in India” sought to highlight the different voices from the women’s movement in India (not yet sharply polarised) and the trajectory of regulation from quasi-legalisation to prohibition. Diverse voices in the Indian context have demanded strict regulation – feminists demanding safeguards for surrogates, especially their right to health, professional associations of infertility doctors, and lawyers to name a few important actors. Yet, there has not been a loud clamour for prohibition, especially not the variant that the Indian state has sought to introduce through the Surrogacy (Regulation) Bill, 2019 which bans commercial surrogacy but conditionally allows altruistic surrogacy for married infertile couples when arranged among ‘close relatives’.  My paper also included insights from my doctoral research regarding the laboring lives of women who acted as surrogates in India for whom surrogacy was one among many ‘options’ in the informal labour market. While India has emerged as one of the most prominent (erstwhile) hubs of transnational surrogacy for almost a decade and a half, and there has been a considerable body of scholarship informed by ethnographic and field-based insights, there still remains an acute need for continued emphasis on a grounded understanding of the phenomenon. It is important to recognise that the surrogacy ‘industry’ flourished in India largely through a vast network of intermediaries, who cannot simply be wished away with a ban, without proper mechanisms of effective implementation. Currently, the Surrogacy (Regulation) Bill, 2019 stipulates steep fines and up to ten years of imprisonment for violation – provisions that are likely to lead to fewer convictions. Moreover, if addressing the exploitation of women who act as surrogates is one of the core concerns as the Bill seeks to address, then allowing only altruistic surrogacy among close relatives does not necessarily achieve that objective.

The discussions on surrogacy at the conference demonstrated that it is important to contextualise commercial surrogacy as a form of embodied labour, which evokes normative questions around ‘new’ forms of women’s labour, appropriate regulatory responses that have a rights-based approach for the commissioning parents, surrogates and children born through surrogacy at their core as well as questions on ‘çhoice’ or its limits in face of structural inequalities. The enforceability of surrogacy contracts is also far from settled — globally where many jurisdictions recognise them albeit only when non-commercial; and particularly in the Indian context where courts are yet to deliberate on such contracts in depth. While a concern about the rights of the most vulnerable in surrogacy arrangements, namely the women who act as surrogates and the children that they give birth to, remains a unifying concern for feminists globally, yet divergences are often glaring in how we seek to understand women’s agency and (re)imagine families beyond hetero-normative frames. Such divergences and contestations are also around how to understand the phenomenon and some of these were highlighted during the discussions in the conference. Firstly, is commercial gestational surrogacy yet another bastion of technological control over women’s reproductive capacities? Secondly, what are the limits of possibilities for the fulfilment of the reproductive rights of some individuals/couples through another woman (where they are often in a hierarchical relationship)? Lastly, whether transnational surrogacy can be understood as an example of women in constrained contexts negotiating and bargaining with globalized informal labour markets. Evidently, surrogacy, as a form of biological and social reproduction, is an important illustration of the relevance of continued feminist dialogue and engagement despite the contestations it entails.

I would like to acknowledge the travel grant and financial support provided by the Centre de Sciences Humaines (CSH), Delhi, where I previously held a postdoctoral fellowship (2018-19), that facilitated my participation in this conference.

One response to “Of Freedoms & Agency: Commercial Surrogacy and Reproductive Rights – by Sneha Banerjee”

  1. 🙏surrogacy should be allowed for married couples only (if unable to concieve naturaly)it has taken face of organised crime.Hope to get strict laws.

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