Wednesday, October 22, 2008

T.K.Rajalakshmi on Surrogacy and Some Responses

In a Frontline article, T.K.Rajalakshmi criticizes the bill pointing out that health activists and women’s organizations are unhappy with it. Here are some of her contentions and my comments.

1. “The guidelines are basically meant to provide optimum benefit of these newer technologies to appropriate persons by a skilled team of experts at affordable health and economic costs in all public and private facilities in the country. So the guidelines basically aid the proliferation of the technology. The Bill is an avatar of the same.”

Amen. Anything that legalizes a practice could potentially aid its spread though to what extent it will happen will depend on socio-economic factors. So far as the purpose is to protect health and prevent fraud, the bill, notwithstanding a few limitations, has done a reasonably good job.

2. “The draft legislation provides for State boards, which would more or less perform the same function as the national board.”

Not quite. The National Board is primarily charged with laying down rules and procedures under Act. The State Board, though enjoying some discretion in this regard, is expected to act in accordance with the directions of the National Board and is responsible for enforcement. It is empowered to examine complaints and review decisions of the Registration Authority.

3. “A concept note … notes that economically disadvantaged women could be lured into carrying the fetuses of wealthy childless couples. Even in cases of altruistic surrogacy, there is the possibility that the surrogate mother will be emotionally pressured to demonstrate family loyalty by carrying a child for a sibling.”

True. Economic necessity is unquestionably the driving force on the supply side behind commercial surrogacy. The contract forms the egg/sperm donor and surrogate sign include language that she agrees ‘without any pressure from [his/her] side and in [his/her] full senses’. The cap of three surrogate pregnancies might also protect a woman to a small extent. No doubt this may be insufficient to prevent a woman from being pressured.

But the only surefire way to prevent it is to outlaw surrogacy itself. But, as was pointed out in a previous post, that solution has its own downside. For one thing, it will deprive willing surrogates of ‘employment’ and an attractive option for livelihood without the state providing any comparable substitute. Secondly, denying domestic childless couples the option of surrogacy could potentially aid divorce or worse, the abandonment of women who often get blamed in our society for failing to conceive. A third is of course the loss of the benefits associated with health tourism.

The question of women being forced into child bearing is however serious enough to merit some thought. The phenomenon, as we know, is not specific to surrogacy. Economic development and consumerism have been reported to have led to increased demands for dowry. Could the same thing happen here with family members forcing women to carry children?

Perhaps. The answer would depend on whether the idea gains acceptability about those sections of our society that are economically better off but socially backward where the relative status of women is the weakest. Several significant factors though are likely to work against it: (1) The burden associated with child bearing and the consequent opportunity cost to one’s own family. (2) Moral stigma associated with it. A strong stigma could deter entry much like it does for prostitution – it is unlikely that the majority of women in oppressive family environments will be forced to become high class prostitutes just for the money should it be legalized. (3)The larger the number of women in the market, the lower the price is likely to get. (4) The greater the poverty, the higher the perceived return on this ‘investment’ and therefore, the greater the chances of a woman entering the trade (either voluntarily or because of coercion). In contrast, the more impoverished the family, the lower the nutrition level is likely to be and hence, the less likely that she will be chosen from amongst her competitors to bear a child. Thus, the market, so long as the supply of women is adequate as in places like Anand, will, ceteris paribus, end up disfavoring those most in need of the reward thereby diminishing the incentive for entry.

4. “The Bill directs that ART clinics, semen banks and research organisations that use human embryos for study, which are operative on the date of notification of the Act, should obtain temporary registration within six months of the notification by the State board and regular registration within 18 months of the notification. Activists, however, are baffled at the notion of temporary registration. And more peculiarly, if the agency applying for temporary registration does not hear from the State Registration Authority within 60 days of receipt of the application, the clinic would be deemed to have received temporary registration. “If this is not facilitation of ART clinics, then what is?” wondered a health activist.
Again later, in talking about the statement from SAMA, the author writes “…there was an urgent need for regulation, not just regularization and promotion, of the present practice…”

This provision (s.14(1)) is supposed to ensure a prompt response from the government. It applies only for temporary registration and is so designed to prevent disruption of their activities when the government will have to process a large number of applications during a relatively short period. There are also provisions laying down the procedures to be followed in detail and penalties prescribed for failure to follow them. Despite this, the article argues that this all only amounts to only regularization and promotion, not regulation. I always thought good regulations are ones that do not obstruct businesses any more than necessary. Apparently not. The idea seems to be that a bill must promise enough red tape in order to qualify as ‘regulation’ – it must threaten delays, denial of a license or worse; otherwise, it is just ‘regularization’, ‘facilitation’ and ‘promotion’!

5. “There are certain ludicrous provisions as well. Under the section titled duties and rights of donors, it is laid down that no ART procedure shall be conducted unless the donor has obtained the consent in writing of his or her spouse. Given the low level of negotiating rights of the poor and especially women in reproductive matters, it is highly unlikely that there will be any spousal objection in a commercial transaction.”

I fail to see why it is ludicrous. The mere knowledge of fathering/mothering a child can be a significant emotional burden for an individual. It is not unreasonable to insist that the spouse/partner be made aware of and acquiesce in the happenings to avoid conflict. I am also unable to appreciate why the problem is not so much the existence of a moral objection of the spouse but the lack of one.

6. “…what is detrimental to the health of the surrogate mother is the provision that allows for multiple pregnancies in the event of failure in transferring the first embryo. The Bill allows up to three commissioned babies. That is, the surrogate mother can accept, on mutually agreed financial terms, at the most two more successful embryo transfers for the same couple.”
All that the provision says is that if the embryo transfer fails the first time, it may be tried again. The key words are ‘if she wishes’ and ‘decide to accept on mutually acceptable financial terms’. The practice is neither unknown nor unusual. Why she believes it is detrimental to the health of the mother is not explained nor am I aware of any evidence to support it.

7. “A question that activists, health experts and women’s groups are asking is whether surrogacy can be pursued and promoted as a public policy in India, given the abysmal track record as far as the health of women is concerned. Secondly, while the government encourages the small family norm, the ART guidelines and now the Bill actually allow for commissioning up to three babies. Third, public health experts like Imrana Qadeer feel that the government could do a lot more in terms of addressing the causes of secondary fertility, through effective antenatal and natal care.
… Imrana Qadeer argues that maternal mortality will not decline if surrogacy is promoted as part of what she calls legalized health tourism.”

Firstly, the purpose of surrogacy is to help childless couples have children, not those who already have them. Secondly, allowing a woman to carry up to three surrogate children is not the same as encouraging her. If that is ordinarily so then, a fortiori, it ought to be the case where the higher number is owing to a child being borne for someone else. Thirdly, this law is intended only as a last resort for couples whose infertility cannot be treated. Parts 5 and 6 of the rules lay down in detail the procedures for patient selection. The notion that couples may not get treated for their afflictions because of this bill is ludicrous.

The author argues that maternal mortality will not decline because of this bill. Yes and it will not stop dunces from being born and the Sun from rising in the East. Public health and surrogacy may be related but no reason has been provided to believe that the latter is deleterious to the former. Why public policy ought to promote one to the exclusion of the other is beyond me.

8. “The concept of promoting surrogacy as a public policy also denigrated the notion of gestational motherhood. It is ironic that when there are laws banning commercial transaction of human organs and sex selection of babies, the ART Bill comes to legalize something that has a clear potential for exploitation of the poor. Surrogacy arrangements, if any, should be limited to altruistic ones to prevent commercialization of the same.”

Society surely has a right to regulate surrogacy on grounds of morality (some might argue that there is a case for an Art.21 challenge if a ban is imposed but I am not getting into this). Whether it ought to do so is of course the issue here. It is a good question whether commercial transaction of human organs ought to be banned (this is the subject matter of a separate post) (as an aside, the very question came up briefly yesterday in the context of the ongoing hearing in the Naz Foundation case). The fact that a ban exists there does not imply that one should be imposed here.

As for the question of exploitation, I quoted in a previous post the opinion of the California Supreme Court in Johnson v. Calvert that the degree of exploitation here is no greater than ‘economic necessity in general exploits them by inducing them to accept lower-paid or otherwise undesirable employment.’ Another way to approach it is to ask whether an act becomes exploitative the moment it is invested with commercial value. For example, does sex become exploitative when one voluntarily engages in it for a living?

9. “…the Bill did not have a clear preamble outlining the purpose or a framework emerging from the government’s own perspective… …Not only did the Bill compromise heavily on the health and rights of women and children, it also promoted invasive and expensive technology instead of encouraging adoption. Above all, the activists feared that the Bill reinforced patriarchal as well as eugenic tendencies.”]

The perspective is fairly clear – laying down requirements for institutions and individuals concerned to abide by. Yes, it promotes invasive and expensive technology. Does it discourage adoption? I have had a hard time finding data but I do believe that even if it does, the market for surrogate children will not be substantially affected. It is doubtful that most of these foreign tourists who are a critical part of the industry will be satisfied only with adoption particularly when other developing nations offer similar low cost alternatives for surrogacy. I do not know what patriarchal tendency the author refers to but there are specific provisions in the act prohibiting sex selection. Eugenics? The prohibition on allowing ART for couples who can conceive otherwise (s.20(10)), on accepting egg/sperm from ‘a relative or a known friend of either of the parties seeking ART’ (s.20(12)) and those guaranteeing anonymity to the sperm/egg donor would all prevent ‘designer babies’. I do not quite see how one could circumvent all of this and still have a child with some Bollywood celebrity even if one wanted to.
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