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Why All Non-Altruistic Surrogacy Should Be Banned

The growth of reproductive tourism in India is justifi ed as a win-win situation: women from abroad, desperate to bear biological babies, can now do so while the Indian women surrogates earn money. The bill of the Government of India to regulate this booming market was drafted at the behest of the very industry it seeks to regulate, and is meant not so much to offer protection to the women surrogates but to the industry. This article suggests that we recognise this business as exploitative and involving the appropriation of surplus labour, albeit with some special characteristics, and as a result, evoke a different set of policy implications.


Why All Non-Altruistic Surrogacy Should Be Banned

Mohan Rao

The growth of reproductive tourism in India is justified as a win-win situation: women from abroad, desperate to bear biological babies, can now do so while the Indian women surrogates earn money. The bill of the Government of India to regulate this booming market was drafted at the behest of the very industry it seeks to regulate, and is meant not so much to offer protection to the women surrogates but to the industry. This article suggests that we recognise this business as exploitative and involving the appropriation of surplus labour, albeit with some special characteristics, and as a result, evoke a different set of policy implications.

Mohan Rao ( is with the Centre of Social Medicine and Community Health, Jawaharlal Nehru University, New Delhi.

he iconic film actor Aamir Khan and his wife Kiran Rao recently put forth a statement in the newspapers announcing the birth of their genetic child, Azad, through surrogacy. They thanked god, science, technology and family as well as friends. Missing here was possibly the most important actor in this drama: the surrogate. This was perhaps because she had been paid for, and no further obligations ensued.

There is an irony here that has been noticed before. The surrogate mother, literature tells us, is, even in the most commercial of transactions, being told that she is doing what only god on earth can do, give precious life to couples who cannot bear a child (Pande 2009). Yet clearly, for womb-hiring couples such as Khan-Rao or the couple from Texas in the fi lm Made in India, this is a commercial relationship (Haimowitz and Sinha 2010). Altruism is here not in an uneasy, unexamined, relationship with commodification. On the contrary, commodification here is the winner. Clearly, you may be asked to return a gift; you cannot be asked to return something you have bought.

Issues of Surrogacy

Given the media hype, and the sexiness of the issues that have been raised, there has been some scholarly research around the issues raised by assisted reproductive treatment (ART) and surrogacy. Most have pointed out to the fact that given the highly unregulated nature of medical care in the country, there is a substantial amount of unethical practices involved and that the guidelines of the Indian Council of Medical Research (ICMR) are being implemented more in the breach than otherwise (Sama 2010). Others have pointed to the vulnerabilities of the women involved, driven as they are by ordinary economic concerns to offer their bodies up for exploitation (Pande 2009).

Indeed, it has been cogently argued that the draft bill set to regulate the ART industry is drafted at the behest of the very industry it seeks to regulate, and is meant not so much to offer protection to the women surrogates as to the industry (Qadeer and John 2009: 10-12). They have examined various aspects of patriarchy that underlie the seemingly seamless acceptance of this practice in India (Banerjee 2012).1 Yet, it is surprising that none of these critiques call for rethinking the issue towards a ban on all but altruistic surrogacy. This paper is a brief attempt at delineating such a position.

While the visibility – and valorisation – of women’s reproductive labour was something that came to be recognised, albeit reluctantly and with hesitation, with the second wave of feminism, what is not adequately recognised or theorised is the concept of surplus reproductive labour. This is surprising given the fact that the advances in life sciences over the last 20 odd years has commercialised all aspects of what has been called the global bio-economy. As Waldby and Cooper (2010: 4) argue that “Women constitute the primary tissue ‘donors’ in the new stem cell industries, which require high volumes of human embryos, oocytes, foetal tissue and umbilical cord blood. These industries rely on maternalembryonic nexus as a generative site...”.

In the west, these are obtained as a surplus (“spare” embryos) or waste (umbilical cord “afterbirth”, poor quality oocytes) whose regenerative capacity cannot or should not be withheld from others, who might potentially benefi t. In other places, countries such as India, China and much of the countries of eastern Europe, these are frankly transactional relations. The issue that I raise is whether we recognise this as exploitative and the appropriation of surplus labour, with some special characteristics, and as a result evoke a different set of policy implications.

Women’s Reproduction Labour

One reason that women’s labour was not recognised as such – especially in the reproduction of the household economy

– was precisely because women were

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seen as altricial above all. Selfl ess, their labour in the care and maintenance of the household was seen as love, or a gift, or a donation, something not to be vulgarised by market considerations. It is, therefore, not at all surprising that the same considerations accrue to women’s reproductive labour literally, i e, that they donate what is “waste” to them so that others unknown may benefi t. As Dickenson (2007: 56) has argued: “The products of women’s bodies are commodified, gaining tremendously in value, but women’s contribution to that value is not recognised in the marketplace because it is viewed under the same rubric as ‘home production’”. What is not remarked upon simultaneously is that on these “donations” rests a transnational industry, making profits selling hype and hope in an increasingly speculative market, selling futures. Indeed, Sexton (2011) has characterised this transnational business, as selling speculative promissory notes of hope. In the same vein, Hodges characterises the global bioeconomy as venture-capital-led selling of fantasy (Hodges 2012).

This global industry, dominated by transnational corporations, is said to be worth about $76 billion in the United States (US) and $3.23 trillion in the European Union.2 ARTs and surrogacy are only a small, but essential, part of this massive industry. It is essential because the raw materials for this global bioeconomy can only come from women’s bodies, but values are added more distally in the chain. It need hardly be added that the more distally we proceed from the female body, not only are more values being added, but this is largely a male industry comprising scientists in the life sciences (who obtain patents from gifts given by women), venture capital and biotech firms (who too obtain patents sold to them by scientists and profits from the sale of patents and fi rms with patents).

Thomson has argued that in the biomedical mode of reproduction “reproduction is made productive in an industrial sense, with its product being standardised molecular entities like clones and cell lines”.3 Franklin and Lock (2003) in their analysis of the contemporary globalised life sciences place reproduction at the centre of capitalised biosciences as the primary generator of wealth and value. This is needed, it is argued, to counter feminised labour and its product “donated” to the domain of altruism and gift, a domain, as we saw above, like the family which is depicted as beyond transactional relations of commerce.

Dickenson (2007) notes that “the new enclosures” of the genetic commons raise concerns and debates when men are the “sources” of tissue such as cell lines.4 This is not the case when only women are, in a sense, mined, since women’s bodies are “naturally” giftable. She, however, warns that with the new global bio-economy, both men’s and women’s bodies stand objectifi ed and commoditised.

Exposed to Global Markets

Indeed, Waldby and Cooper argue that today “reproduction is denationalised and exposed to global labour markets”. Thus, eastern European women, along with providing women in prostitution, also have emerged as major sellers of oocytes, solicited by private transnational in vitro fertilisation (IVF) clinics. Indeed, it has been documented that women in Ukraine were given a thousand pounds for their aborted foetuses subsequently sold for cosmetic clinics and spas. The same sources also supply material for stem cell research and treatment. There is a global trade in blood, cell lines, placentas, embryonic stem cells, embryos, and so on. Many of these cell lines are, of course, patented both by individual scientists in universities and more importantly, by biotech fi rms, global in nature (Krimsky 2003).

While in the Marxist analysis of labour, a labourer produces a surplus that is realised when a commodity is sold, i e, after it is alienated from her/him, in reproductive labour too can we not argue that a surplus is realised when the product is commoditised, either as a stem cell, cell line, regenerative treatment, or indeed, a baby that is created for surrogacy? (Marx 1976: pp 251, 262) As surplus labour is congealed into the commodity, surplus accrues to the owner of the means of production at the point the

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commodity is sold. In other words, labour that occurred earlier in time is realised as surplus at this point in time. We see the same occurring with respect to reproductive labour too, except that in some of these cases, these go on endlessly into the future. As Sunder Rajan (2007: 81) has argued, “It is not labour but life itself which becomes the locus of value in biocapital, with health becoming the index of life, rather than the facilitator of labour”.

Oliver argues that while Marx’s analysis of estranged labour “applies only metaphorically” to other kinds of labour, it applies literally to surrogacy. “In the case of surrogacy, the product is not part of the ‘inorganic body’ of nature. Rather, the product, the child, is itself an organic body created out of another organic body. The surrogate, then, is doubly estranged. She is estranged from her organic body and the body of the child….Her ‘freedom’ is an illusion created by estranged labour” (Oliver 1989: 105).

While commercial surrogacy is banned in many countries of Europe, France consistently rejects the commodifi cation of any part of the body. Just as you cannot sell blood, can you not sell ova or sperm, or indeed, cell lines? The body is not a tool; it is not yours to sell. This has profound implications for discussions on property rights and patents on biological products at the World Trade Organisation.

Reproductive Tourism in India

India is now integrating with the global reproductive tourism industry estimated to be worth $3 billion in the US alone (Spar 2006).5 Within six years of the birth the world’s first test-tube baby in 1978, the Government of India sponsored work on IVF at the Institute for Research

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in Reproduction in Mumbai in 1982. This initiative was soon taken over by the booming private sector in health, especially the corporate sector now emerging with state assistance. According to the ICMR, there were an estimated 250 IVF clinics in 2005. The Indian Society for Assisted Reproduction has a membership of more than 600 clinics. What is interesting is that these clinics have now moved to smaller cities and towns to exploit the market in these areas, and indeed, to create them (Sama 2010).

India has emerged as a centre for destination for people wishing both to have assisted reproduction and for surrogacy. Indeed, the surrogacy business alone is said to be worth $445 million.6 The cost of hiring a surrogate in India ranges from $6,000 to $8,000, as against about $80,000 in the US. Although there are wide variations, the cost of IVF in India is about $500 for each cycle, compared to $5,000 in the US. What is also important to bear in mind is that the ART industry also offers a regular supply of spare ova to another industry, namely, the stem cell therapy industry, also unregulated in India. The country has announced a public-private partnership with three European pharmaceutical companies and the British government for stem cell research.7

The growth of reproductive tourism is justified as a win-win situation: women from abroad, desperate to bear biological babies, can now do so while Indian women surrogates earn money. The government has now reluctantly come up with a bill to regulate this booming market. But the bill, as we noted earlier, was drafted at the behest of the very industry it seeks to regulate, and is meant not so much to offer protection to the women surrogates as to the industry (Qadeer and John 2009). The irony, of course, is that by the same logic, the government need not ban sale of body organs that it presently does. Although the framework to justify reproductive tourism is also “reproductive choice”, there is no attention paid to the idea of reproductive justice (Fried 2010). Studies indicate that women hiring themselves out as surrogates almost invariably do so out of economic necessity (Pande 2009); and indeed, are exploited by a range of middle men and women.

As India integrates with the global economy, striving to assert herself on the global stage, boasting of an impressive economic growth rate and the ability to withstand the global meltdown, one way to do so appears to be the foreign exchange it earns through reproductive tourism. As the French have it, plus ça change, plus c’est la même chose. India rushes into globalisation, by turning sexual and reproductive slavery into globalised commodities. Should we then call not for a regulation, but a complete ban on commercial surrogacy? Currently, India is one of the few countries that permits this trade in a completely unregulated manner. Regulating it and permitting it, will put us in the unique situation of a country proud to sell women’s surplus reproductive labour, much like slave owners did.


1 As the excellently played Dr Chaddha, in the successful new fi lm Vicky Donor puts it, this goes back to the Mahabharata. He also has a remarkable, but wrong, story of Aryan genes in India stemming from Alexander the Great! Alexander the Great was, of course, not Aryan, whatever that meant, but Aryan-ness does indeed touch on an important semiotic code in India: that of brahmins and Others.

2 The EU figure is from The Knowledge Based Bioeconomy in Europe: Achievements and Challenges, OECD, 2011. The US figures are from Bourne Partners Biotechnology Market Overview, NC, 2011. This figure is from the report of a consultancy firm that has an interest in attracting investments in this area, and thus in exaggerating both the size of the industry and the possible returns. It should therefore be treated with abundant caution.

3 Thomson (2010) cited in Waldby and Cooper (2010: 10).

4 Donna Dickenson, is, of course, referring to the controversy about the Moore case, Moore vs Regents of the University of California, 1990. This involved a man diagnosed with leukaemia who had his spleen removed as part of his treatment. He was repeatedly called to the treating hospital several times to donate tissue samples. It turned out that he had unusually active immune cells that had been used to produce an immortal cell line worth three million dollars, the patent for which was held by the University of California. Moore sued to establish his property rights in the cell line and the researcher’s and clinician’s failure to obtain his informed consent. He lost his case at the California Supreme Court, leading to the controversy. The court ruled against Moore on the grounds of greater public good; they did not address the issue of whether patenting serves this purpose.

5 Spar (2006), This should be treated with abundant caution; see Note 2.

6 Warner (2008), Compare this to the trillion dollar global bio-economy to which it offers raw materials.

7 The Hindu (2007), 23 October, Editorial.


Banerjee, Sneha (2012): “Emergence of the ‘Surrogacy Industry’”, Economic & Political Weekly, Vol XLVII, No 11, 17 March.

Dickenson, Donna (2007): Property in the Body: Feminist Perspectives (Cambridge: Cambridge University Press).

Franklin, Sarah and Margaret Lock (2003): “Animation and Cessation: The Remaking of Life and Death” in Sarah Franklin and Margaret Lock (ed.), Remaking Life and Death: Towards an Anthropology of the Biosciences (Santa Fe, New Mexico: School of American Research Press).

Fried, Marlene (2010): “The Politics of Abortion: A Note” in Mohan Rao and Sarah Sexton (ed.), Markets and Malthus: Population, Gender and Health in Neo-liberal Times (New Delhi: Sage).

Haimowitz, Rebecca and Viashali Sinha (2010): Made in India (New York: Chicken and Egg Pictures).

Hodges, Sarah (2012): “Limits to Speculative Surplus Value: Cord Blood Banking in Chennai”, paper presented at the JNU Warwick Workshop, “Science, Technology and Medicine in India, 1931-2000” at Jawaharlal Nehru University, New Delhi, 22 and 23 March.

Krimsky, Sheldon (2003): Science in the Private Interest: Has the Lure of Profi ts Corrupted Biomedical Research? (New York: Rowman and Littlefi eld).

Marx, Karl (1976): Das Capital, Vol 1 (London: Penguin Books).

Oliver, Kelly (1989): “Marxism and Surrogacy”, Hypatia, Vol 4, No 3, Fall.

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