The Surrogacy Debate and the Missing ART Bill: Chayanika Shah

Guest Post by CHAYANIKA SHAH

Altruistic. Meaning: showing a disinterested and selfless concern for the well-being of others; unselfish.

So once again the government is asking women to be unselfish and show selfless concern for the well being of others. The “others”, however, have been clearly marked. It has to be people within the close family. Women dare not feel selfless or altruistic concern for anyone other than those that are connected to them genetically or through marriage (since that is what defines a family by law and dominant customs). This concern should be so selfless that they should also not worry about their health after the pregnancy, they should not care for the loss of employment or any other changes that may happen in their lives as a result of this concern that they show for a family member. After all we are living in the “Indian ethos” where women are supposed to sacrifice for their “families,” and for none other. And in any case, till very lately, until all these new fangled ideas of women being natural guardians etc. came up, women were giving this altruistic services to their husbands. They are used to it and this is merely an extension of their familial labour. Simple!

It is such a waste of women’s reproductive potential that they bear children just for their husband. The family may as well benefit from the labour of the woman, and it be shared with other family members too. Especially for those who have married as per all the caste and community norms and have even stuck together for five years in spite of not having a child. Why should the hard earned money of “the family” be squandered on someone else? Is that not wasting the potential of women? After all why have we have saved the girl child? So that our boys can have the right girls to marry and also so that we can continue with our eugenic marriage and child bearing practices within the right caste and gotra unions.

This is what the government is saying. But there are others who are blaming the government for being conservative, people like the AIDWA and many others. Their unhappiness is with only this minimum application of the woman’s labour to married couples without a child. They are wanting this woman to extend her services for all those other poor sods within the family – the single people, those choosing to have “live in” relationships (with the knowledge and approval of the family), and the homosexuals (again loved and accepted and cared for by the ever loving Indian family). Trans persons exist only as far as the NALSA goes, they have no existence in real families, so of course their need for having children does not find a mention anywhere. Basically these liberal minded people are saying that families should get progressive enough to extend this familial privilege of reproductive labour by women within it, to all those who may or may not be able to carry forward the “lamp of the vansh”.

 

Commercial. Meaning: concerned or engaged with commerce; making or intended to make a profit.

I do not understand this liberal understanding which supports altruistic surrogacy for all but opposes commercial surrogacy. In whatever manner the anger against commercial surrogacy is articulated, somewhere it resonates with the emotion, “How dare women make a profit using that which they have been providing for free or in exchange for respect and aadar and izzat and samman and good family name and of course love!” This is couched under concerns of exploitation and violence, but strangely these arguments regularly crop up only when there is some commercial use of sexual or reproductive labour.

This is essentially the same logic that supported the ban on dance bars where women went to dance and use their sexual labour for the sake of making a living. They preferred to do that over the other options available to them. Then too questions of who it was doing these kinds of jobs was raised. We do not deny that these are probably choices that are made by those from the margins because they do not have other choices. We do want to make it possible for everyone to have a larger range of things to choose from. But we want to extend this choice to all women – including those that are choosing the option of getting married, or of doing domestic labour in their husband’s home or in someone else’s home, or of doing hard physical labour in agricultural lands and not being paid even minimum wages, or of being stuck with home based piece rate work that requires many hours of back breaking labour and pays pittance, or of many other jobs in small industrial units like in the garment industry where they have no time even to go and use the loo, the list is endless. Isn’t there exploitation everywhere, and should we not be raising these questions then in each of these situations?

When these questions are raised particularly in the context of sexual and reproductive labour, then they appear to be coloured with a moralistic understanding of how women should use their bodies and stay within the norms of society, and are definitely not informed by the choices that women themselves make in their circumstances. When profits and profit making systems are concerned, those who do not have enough power definitely get exploited and need protection. The usual way of a fair society should be to safeguard the interests of such people and to make their conditions for bargaining better. It cannot be about taking away the chance to make any money by banning the very activity.

Why is the Bill only about surrogacy?

This industry is not only about surrogacy. It is actually about assisting reproduction through use of technology. These technologies bring back the emphasis once again on the germ cell and gamete theory of children and every married couple is once again under a moral pressure to have “a child of their own”. So, in a sense, these technologies are actually the means of having children of one’s own genetic imprint. There were discussions over the last many years, almost for more than a decade, on procedures to regulate these new technologies. First, there were the ICMR guidelines, and then came the Assisted Reproductive Technology (Regulation) Bill. Doctors and IVF centres and clinics were the ones that were instrumental in pushing these,  possibly to make money from the domestic and international ART market, as also from  surrogacy, but definitely not only from that.

Surrogacy with a fertile woman does not really need high tech technology. Anyone can bear a child for anyone else, especially if the woman is fertile, and can have access to the sperm via a syringe, if not a penis. In fact, in the scheme of things, the surrogate, who asks for monetary compensation and voluntarily gives her child to someone else to nurture, is probably one of the subversive elements in the story of assisted reproduction. She, in her act of getting pregnant with the conscious decision of not nurturing the child beyond birth, redefines motherhood, lineage, and reproductive labour. If there were a scale for subversive potential in this context, the surrogate would mark higher than the same sex couple who desires to have a genetic child to make a family like everyone else. Yet she helps continue the story of genetic continuity for  those who cannot have their “own” child – the single man, the gay couple, the transwoman, etc.

Further, this technology is supposed to assist when two persons are not able to have a child because they are not able to produce the gametes or carry the pregnancy. Technology does not bother about why someone does not have the gametes. So it could be that the husband in the five year old marriage cannot produce fertile sperm, or it could be that the partner is not a sperm producing person (could be a woman or a transman or anyone who does not produce sperm). Technology could help all of these people. So even those unable to have children because of social norms and bodily limitations, all could use this technology to have their own biological child.

Sensing this subversive potential within the technology, the Bill somewhere tried to regulate who can have access to the technology; whereas actually it was for the regulation of the providers of the technology. So instead of concentrating on the doctors and the clinics, and the ways in which they used procedures and interventions in healthy functioning bodies, the Bill went on on to regulate who could access the technology. The Bill opined that the surrogate could not use her genetic material and thus brought her into the ambit of technology.

Many women’s groups tried to raise this issue from time to time in the last decade or so, and opposed the medical industry and its profit making intention in this whole process. There was also an opposition to the fact that gamete labs were seen as fit places from where to source eggs, sperms and surrogates. In this configuration of the labs themselves the surrogate was seen as just reduced to the womb and not seen as the person who actually laboured to carry the delivery. There were demands to look at surrogacy under laws related to unorganised sector workers and also to include them to talk of their concerns in the framing of the rules. Meanwhile there was more strident demand for regulation of the technology for all women, including the wives within marriages, the single women, the lesbian woman, the surrogates, and a demand that all be treated on par as far as technology goes.

And yet after years of discussions, a Bill for regulation of assisted reproductive technologies has become just merely a surrogacy bill. The government has not disclosed what happens to the rest of the Bill. The media reports the minister Sushma Swaraj saying, “There are enough regulations on IVF”. So this seems to be the trade off between the doctors, who are running the many ART centres across the country, and the government.

Yes, some of them will lose their business and their vision of making this country the hub for surrogacy. But they will get compensated by unregulated, or partially regulated, ART clinics because once the exploited women are out of the story, why do the doctors, who work so selflessly for profit, need any regulation for use of technologies? Who can question them on the amounts they charge, the medicines they give, the dream of having one’s “own child” that they nurture and build upon while underplaying adoption or child-free lives as options? There are already many who are pouring in their hard earned money to get this “own child” and am sure there is enough business. And finally of course, if not surrogacy, the doctors might get their chance to do many other things like clinical trials, embryo research of all kinds, cosmetic surgery, maybe even make good gender clinics…. The mind boggles at the possibilities (of what all can be made in india, keeping the families and ethos intact of course)!

Thus in one master stroke all the subversive potential of these technologies is finished. They could have been used by all those who are socially not allowed to have children of their own. They could have allowed for the possibility of multiple parents – the gamete donors, the pregnancy-nurturing mother, and the parents in whose guardianship the child grows up. They could have forced us to re-examine who can and cannot make a family and have children.

But by bringing in this Surrogacy Bill hasn’t this swayamsewak government done a great favour towards saving this country and its regressive ethos which only they know and understand?

One thought on “The Surrogacy Debate and the Missing ART Bill: Chayanika Shah

  1. Maya Valecha

    While agreeing to many points, it seems unless we strive and work for a society that assures a dignified job to everybody and fights consciously against patriarchy we can not say that women have made a conscious, informed choice while taking a dance bar job or surrogacy. Apart from her own economic compulsions, the family can be the decision maker and we know how most women are forced into sex work or dance bar. While demanding their rights, if we don’t work to achieve a socialist society with constant thrust for freedom from patriarchy, we are not reaching for final solution.

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