Reproductive Medicine and Technology, Surrogacy, and Adoption

It is difficult to overstate the high value that has long been placed on parenthood in South Asia, where having a child after getting married is still often perceived as an essential step in making the journey to ‘full adulthood’, regardless of one’s chronological age or other achievements and milestones.41 premodern Buddhist literature from India made frequent use of maternal imagery, although this was liable to invoke negative (or at least highly ambiguous) representations of motherhood, as well as exemplifying the ‘good mother’.42 Vedic texts record that in ancient India a man was permitted to abandon his wife if she had not given birth after ten years, on the assumption that barrenness demonstrated that she was possessed by an evil spirit.43 This cultural emphasis on parenthood has been passed on across the diverse international South Asian diaspora, and also resonates strongly for people of Bangladeshi and pakistani origins as well as migrants from India and their descendants.44 Voluntary childlessness among British South Asians is thus described by the sociologists Nicky Hudson and Lorraine Culley as ‘almost unheard of .45 Those who have not had children are acutely aware of their status as an uncomfortable and anomalous ‘invisible minority’ within their community.46 Adoption of children is also often viewed by British South Asians as an unacceptable alternative to biological parenthood, paralleling the stigmatization of this practice in India as generally dubious and ‘unrespectable’

at best.47

The high cultural value accorded to parenthood has generated a popular demand for fertility treatment, despite governmental concerns about overpopulation, and this has helped the field become a major growth area for Indian biomedical companies. As early as 1953, S.D.S. Greval, Professor of Immunology at Calcutta School of Tropical Medicine, remarked on the possibility for some married couples to conceive through artificial insemination, citing studies of the subject published in the British Medical Journal as offering hope to the infertile.48 More recently, several factors have intersected to cement India’s place as a hub for reproductive medicine and technology in the twenty-first century. As Aditya Bharadwaj and Peter Glasner have pointed out, ‘In India, unlike in the Euro-American context, there is no consensus on the moral status of the human embryo’.49 This ambiguity, combined with the historical and cultural emphasis on the importance of science and technology in twentieth-century India, the high demand for services, and the low level of regulation, helped delay the introduction of more stringent regulatory measures around ARTs.50 It was not until 2000 that the Indian Council of Medical Research developed a code of ethical guidelines for practices involving human subjects, including embryos.51 Perhaps most controversially, these factors have also led to a thriving market in commercial surrogacy for both Indian and foreign clients since 2002.52 Those who travel to India for commercial surrogacy frequently cite the combination of few restrictions, high quality medical care, and, perhaps most significantly, the dramatically lower cost of Indian clinics compared with North American or European options.53 Given the expensive and time-consuming nature of all fertility treatment, cost is a particularly acute issue for sufferers across the global South, including India.54

Many foreigners who employ Indian commercial surrogates are very sensitive to suggestions that they exploit these women. For example, in her recent self-published ‘surrogacy memoir’, one British woman who employed an Indian surrogate mother was palpably keen to stress that the potential for exploitation had been a serious concern for her and her husband, and that they had attempted to ensure the relationship was not exploitative.55 However, the painful reality is that most commercial surrogates, as Amrita Pande found, have been ‘driven to surrogacy because of financial desperation, often compounded by a medical emergency and an urgent need for liquid cash’.56 Under these circumstances, it seems inevitable that few, if any, of these transactions ever truly offer ‘mutual benefit’ to both infertile couples (whether foreign or domestic) and to impoverished Indian women, even though this is how commercial surrogacy is marketed.

Moreover, current advertising for IVF and associated treatments often contravenes the guidelines of the Indian Council of Medical Research by preying on the desperation of potential clients. The possible exploitation of clients was identified as a special danger as early as 2000 by fertility specialist Aniruddha Malpani, who noted that ‘infertile patients are emotionally vulnerable and highly motivated. This provides a ground ripe for unethical practices’.57 One recent study in Ahmedabad suggested that many people visited fertility clinics directly as a result of seeing an advertisement, but up to 72% of advertisements by private fertility clinics in the city made totally unrealistic claims, such as guaranteeing those who used their services a successful pregnancy and delivery.58 In contrast, the head of the clinic where Holly Donahue Singh conducted her fieldwork was careful to warn patients that a success rate of 40% was much more realistic.59 Clinics which make dubious claims may engage in other illegal or unethical practices. A clinic based in Bengaluru was recently closed down after complaints to police that women treated there suffered severe side effects from the prescribed medication. Furthermore, in at least one instance, a DNA test has determined that a baby born via surrogacy was not, as claimed by medical staff, the biological offspring of the Indian couple in question.60

There have also been several high-profile international incidents where commercial surrogacy arrangements have broken down, or children born via surrogacy have been officially demarcated as stateless, with potentially dire consequences for the infant.61 In the infamous ‘Baby Manji’ case of 2008, a Japanese couple divorced shortly before the Indian surrogate mother carrying their child gave birth. This case demonstrated the extreme difficulties and hardship which can result in the absence of clearly defined regulations: both Japan and India initially refused to provide the baby with a passport, or to allow her to leave for Japan with her paternal grandmother.62 The following year, a German man faced similar difficulties when trying to arrange passports for his twin boys born to a commercial surrogate.63 Perhaps most distressingly, the uncertainty and potential for harm in these cases was underscored in 2014 when the Chief Justice of the Family Court of Australia, Diana Bryant, revealed that two years earlier an Australian couple whose Indian surrogate had given birth to twins had returned home with the baby girl but refused to apply for the paperwork for her twin brother. They had decided they did not want this child since they already had a son, even though they knew this meant the boy would be left uncared for and officially stateless.64

Cases like these have strengthened the demand for greater regulation of commercial surrogacy. Guidelines issued in 2012 now ban same-sex couples, unmarried men, and women (whether in a relationship or not), and all those married for less than two years from obtaining a visa to use commercial surrogacy services.65 The moral imperatives at play in this reframing of the rules on commercial surrogacy had little or nothing to do with the vulnerability of babies born to commercial surrogates to abandonment or abuse. After all, the Japanese couple at the centre of the ‘Baby Manji’ case had been married for several years before their divorce. Attitudes to sexuality in contemporary India are by no means monolithic, but the formulation of these rules on ‘acceptable’ clients for commercial surrogacy has much more to do with the prevalence of staunch conservative prejudices against those who do not conform to the ‘right’ (heterosexual, two-parent, securely established) family structure than the needs of children.66 Although regulation of commercial surrogacy was first mooted in 2005, and bills proposing stricter rules have repeatedly been introduced to Parliament since that time, the subject is still hotly contested. An article in The Tribune from June 2015 observed that: ‘A draft [act] acceptable to all concerned stakeholders continues to elude’.67

The latest and perhaps most important development, however, was the sudden announcement by the Indian government in October 2015 that it now intends to ban the use of commercial surrogacy services by all foreigners in the near future.68 A temporary ban is already in place, awaiting the ruling of the Supreme Court on this issue, although foreign couples who had begun the commercial surrogacy process before the autumn announcement have been exempted.69 It is currently proposed that a new law, the latest iteration of what was originally the Assisted Reproductive Techniques (Regulation) Bill 2014, will impose very strict limits on surrogacy. If passed in its current format, this will in the future restrict the import or export of embryos, and only allow altruistic surrogacy for married Indian couples who have been ‘examined by a competent authority’.70 This decision is not only a response to ongoing criticisms of commercial surrogacy as a deeply exploitative practice from both within and outside India, but also reflects the twin dominant beliefs on the Subcontinent that only married heterosexual couples can - or should - be parents, and that having children is an essential part of married life.

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