Article
Globalization
and cross-border
reproductive services:
Ethical implications of
surrogacy in India for
social work
i s w
International Social Work
53(5) 686–700
© The Author(s) 2010
Reprints and permission: sagepub.
co.uk/journalsPermissions.nav
DOI: 10.1177/0020872810372157
http://isw.sagepub.com
George Palattiyil
University of Edinburgh, UK
Eric Blyth
University of Huddersfield, UK
Dina Sidhva
University of Edinburgh, UK
Geeta Balakrishnan
University of Mumbai, India
Abstract
Surrogacy in the context of cross-border care has hitherto received little
attention from the international social work community. In India, the
provision of surrogacy services for foreign couples may be seen as part of
the country’s wider health tourism industry. This article overviews current
evidence on surrogacy in India, and discusses the extent to which proposed
legislation, the Assisted Reproductive Technologies (Regulation) Bill and
Rules 2009, satisfactorily addresses social workers’ concerns to ensure
adequate protection of the interests of young Indian women engaged in
surrogacy, as outlined in the International Federation of Social Workers’
policy on cross-border reproductive care.
Corresponding author: George Palattiyil, School of Social and Political Science, University
of Edinburgh, Chrystal Macmillan Building, 15A George Square, Edinburgh EH8 9LD, UK.
Email: [email protected]
Palattiyil et al.
687
Keywords
cross-border reproductive care, globalization, health tourism, India,
International Federation of Social Workers, surrogacy
Introduction
Every night in Anand, a quiet Indian city, 15 pregnant women prepare for
sleep in the spacious house they share, ascending the stairs in a procession of
ballooned bellies, to bedrooms that become a landscape of soft hills. A team of
maids, cooks and doctors looks after the women, whose pregnancies would be
unusual anywhere else but are common in this part of India. The young mothers
of Anand … are pregnant with the children of infertile couples from around the
world. (Dolnick, 2008)
Following market liberalization in the 1990s, India’s economy has witnessed
rapid development (De Rato, 2005; Hutchison, 2008; Panagariya, 2008; Sen,
2007), enabling it to compete successfully with the world’s more developed
economies. The development of private health care has been one of India’s
most remarkable achievements so that, with explicit government encouragement, it has emerged as a ‘global health destination’ (Chinai and Goswami,
2007), making health tourism the country’s second most popular industry
(India Health Visit, n.d.). With highly trained, English-speaking, staff
(usually having received their training in an English-speaking country),
well-equipped hospitals and speedy access to treatment, private medical
services are comparable with similar services provided in more economically developed countries, but at a substantially lower cost, offering: ‘first
world treatment at third world prices’ (Health Tourism India, n.d.). Substantial
though the development of India’s health tourism industry has been, further
expansion is predicted; the total health-care market is expected to expand
by 2012 from US$22.2 billion (5.2% of GDP) to US$50–69 billion (6.2–
8.5% of GDP) (Chinai and Goswami, 2007). Within the same time-frame,
India’s share of the global medical tourism industry is anticipated to grow to
around 2.4 percent, with the annual number of medical tourists expected to
top one million (Bharat Book Bureau, 2009).
Health-care tourism and health care for the
indigenous population
The state of private health care, however, stands in marked contrast to the
reality of health care for the majority of India’s indigenous population,
especially those living in rural areas. There are barely four doctors for
every 10,000 inhabitants (Hindustan Times, 2007). According to the 2005
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Reproductive and Child Health Facility Survey, less than half of India’s
primary health centres had a labour room or a laboratory, less than one-third
stocked essential drugs and less than one-fifth had a telephone connection
(Chinai and Goswami, 2007). While providers of services for foreign health
tourists are required to charge lower rates for the local population, even
these remain beyond the means of many indigenous patients. The impact of
health-care tourism on public health services is contested. Advocates of private health care and health tourism argue that public health services benefit
from a trickle-down effect and help prevent the export of skilled personnel
out of the country. Critics argue that, nevertheless, the growth of private
health care has fuelled the internal migration of skilled health-care workers
from rural areas to urban centres, and that benefits accruing to the public
health system are negligible. Meanwhile the Indian government is subjected
to increasing pressure to use health tourism income to underwrite public
health care (Chinai and Goswami, 2007).
Such developments are integral characteristics of globalization, a phenomenon epitomized by reduced trade barriers that enable individuals who
can afford to do so to transcend national boundaries to secure goods and
services from more or less anywhere in the world, expedited by modern ICT
facilities and cheap international travel.
Infertility, involuntary childlessness and
cross-border reproductive care
Infertility and involuntary childlessness affect many of the world’s childbearing population; worldwide, an estimated 40.2–120.6 million women
aged 20–44, living in a married or consensual relationship, fail to conceive
after 12 months of unprotected sexual intercourse: of these 12–90.4 million
are likely to seek medical help (Boivin et al., 2007). While a variety of
reproductive procedures is available for different forms of infertility and
involuntary childlessness, this article focuses explicitly on surrogacy.
Practices akin to surrogacy have been reported throughout history. The
Bible (Genesis 16:1–4) describes a form of genetic surrogacy (where the
surrogate is also the genetic mother of the child). However, this – and other
Biblical instances – differs from more recent forms of genetic surrogacy in
so far as the surrogate is conceived following sexual intercourse with the
genetic father as opposed to inseminating non-coitally. Second, the surrogate,
invariably a household servant, seems to have had little choice regarding
her participation. Gestational surrogacy, a more contemporary variant,
utilizes modern reproductive techniques to create an embryo using the egg
and semen of each genetic parent (although donor egg and/or semen could
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also be used) which is then placed in the uterus of the surrogate. The key
difference between genetic and gestational surrogacy is that in the latter, the
surrogate has no genetic relationship with the child she is carrying. The first
gestational surrogacy procedure was reported in 1985 (Utian et al., 1985).
The principal clinical indications for either form of surrogacy include:
absent or diseased or damaged uterus; maternal disease that precludes
pregnancy; recurrent pregnancy loss, or recurrent IVF implantation failures.
In addition, ovarian failure may indicate either gestational surrogacy using
a donor egg or genetic surrogacy. Surrogacy remains one of the most controversial of current reproductive procedures, primarily because it relies on
the reproductive services of a woman acting as a gestational carrier (whether
or not she is also the genetic mother of the child she is carrying). Critics
have decried it as womb renting and akin to prostitution (Hamilton and
Devlin, 2009; Haworth, n.d.) and commodifying children and therefore
exploitative and unethical. However, an alternative view perceives surrogacy
as a mutually beneficial arrangement in which the potential advantages for
all parties outweigh the disadvantages (McLachlan and Swales, 2001).
When considering surrogacy in the global context, the question of cultural
differences in ethical values also arises. The influential Western values of
autonomy, beneficence, justice and non-malfeasance are not necessarily
equally relevant in a culturally diverse context such as India.
Contemporary Western approaches to reproductive services are founded
on: first, awareness of the adverse psychological and social impacts of involuntary childlessness (Daar and Merali, 2002); second, the development of
technological interventions available to an increasing range of potential recipients, including single individuals, couples in same-sex relationships and
post-menopausal women (International Committee for Monitoring Assisted
Reproductive Technology [ICMART], 2006; Nyboe Andersen et al., 2009);
and third, the promotion of ‘reproductive autonomy’, encapsulated in various
national and international human rights codes (Jackson, 2007).
While most individuals and couples who seek medical treatment for fertility difficulties do so in their home country, travel to another country to obtain
reproductive services may be undertaken for a variety of reasons, including:
• a lack of sufficiently skilled personnel and/or technological resources,
and/or shortage of donors resulting in delays in accessing services, or
their unavailability, in their home country;
• exclusion from services in their home country on the basis of age,
marital status or sexual orientation;
• better standards of care;
• higher success rates;
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lower costs;
temporary or permanent residence in another country;
a desire to protect their privacy;
the opportunity to combine treatment with a holiday (Blyth and
Farrand, 2005; Deech, 2003; Infertility Network UK [INUK], 2008;
Inhorn and Patrizio, 2009; Pennings, 2002; Pennings et al., 2008,
2009; Storrow, 2005).
Cross-border reproductive care can also be seen as part of the wider
phenomenon of health tourism and globalization. A distinguishing characteristic of cross-border reproductive care is the outsourcing of conception
and reproduction to egg ‘donors’1 and surrogates, most notably young
unskilled Asian and eastern European women, for whom egg ‘donation’ and
surrogacy offer financial rewards far greater than they could earn from
‘regular’ labour, in countries where light – or completely absent – regulation
fails to offer them adequate protection (Blyth and Auffrey, 2008).
As with the private health-care sector generally, Indian reproductive services are also booming (Sinha, 2008), offering varied family-building
options and staff and facilities that are frequently comparable with those in
more developed economies. The market for cross-border reproductive services is becoming increasingly competitive, and surrogacy in India is estimated to be a US$445 million-a-year business (Haworth, n.d.). Indian
surrogates receive US$3000–6000 (compared with an annual income per
head of around $500), thus making surrogacy a potentially financially
attractive option to poor Indian women. However, as elsewhere where market forces operate, differential remuneration levels operate in India, with a
‘fair-skinned educated, middle-class Brahmin who speaks English’ able to
command a higher fee than a lower-caste woman (Subramanian, 2007). The
cost of surrogacy in India for the intending parents is lower than they would
incur in their own country – if surrogacy is available or permitted there.
Indian clinics charge US$2000–3000 for their services, contrasted with a
surrogacy package costing around US$45,000 in the USA (Chopra, 2006;
Mukherjee, 2007). Further, while in most Western countries the process of
obtaining a specialist appointment, undergoing physical and psychological
evaluation, and starting treatment can take months if not years, in India the
procedure can be considerably expedited.
The dilemma of surrogacy in India
Little documented evidence exists concerning surrogacy in India, and no
systematic examination has yet been reported concerning the health and
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psychological outcomes for Indian surrogates. Without exception, such
evidence as is available has been generated by journalists (Chopra, 2006;
Chu, 2006; Dolnick, 2008; The Hindu, 2008; Mukherjee, 2007; Schulz,
2008; Subramanian, 2007). These sources suggest that, in contrast to policy
and practice developments in jurisdictions where commercial or altruistic
surrogacy is subject to some measure of regulation, there is little evidence
that Indian surrogates’ human rights and physical or psychological health
are adequately protected. Uneducated and disadvantaged women, with limited alternative opportunities to generate comparable levels of income
and having limited autonomy in patriarchal family contexts, may experience economic and family pressure to participate in surrogacy (Lal, 2009;
Qadeer, 2009).
A surrogate may experience conflicting pressures over the social mores
of pregnancy. She may be subject to the strain of having to live in secrecy,
concoct stories about her pregnancy, or move away from home so as to
conceal her pregnancy if it cannot be construed as legitimate in her social
setting. In the social milieu to which the surrogates generally belong, the
process of pregnancy and childbirth is very much a social, rather than an
exclusively personal, event. Uprooting the surrogate from her family and
children during pregnancy may adversely affect both her own psychological
health and that of her children. Anecdotal evidence indicates that at least
some surrogates suffer from postpartum depression and a sense of emptiness
as a result of being unable to breastfeed their baby. But the surrogate is often
encouraged to focus on the altruistic basis for her action (Gupta, 2000). This
notion of unselfishness, along with other notions of ‘good karma’ or
positive actions that will yield other beneficial effects, encourage the surrogate to emphasize the immediate monetary benefits and disregard the
potential health and social consequences of surrogacy, assuming she was
aware of the latter in the first place.
Yet another consideration is the uncertain legal status of children born as
a result of a surrogacy arrangement, as illustrated by the case of Manji
Yamada, born on 25 July 2008 in the town of Anand in Gujarat (Schulz,
2008). Manji was born as the result of a surrogacy arrangement involving a
Japanese commissioning couple, who used the husband’s sperm and a donor
egg to create an embryo that was implanted into an Indian surrogate.
However, before Manji was born, the commissioning parents separated and
divorced and neither her commissioning mother, birth mother nor the egg
donor wanted her. Although neither her genetic father wished to keep her, he
was not allowed to return to Japan with her because under Indian law he was
not recognized as the child’s father and – as a single man – was barred from
adopting her. In addition the authorities refused to issue a birth certificate
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for Manji as a result of her ambiguous parentage under Indian law. Eventually
after considerable media attention (and apparently diplomatic overtures
between India and Japan), Manji’s paternal grandmother was permitted to
take her to Japan (The Hindu, 2008).
The Assisted Reproductive Technologies (Regulation)
Bill and Rules 2009
Proposed legislation, the Assisted Reproductive Technologies (Regulation)
Bill and Rules 2009, drawn up by the Ministry of Health and Family Welfare
and the Indian Council of Medical Research, which is expected to become
law during 2010, sets out a regulatory framework for reproductive technology,
including surrogacy. However, the safeguards it offers to surrogates fall far
short of those considered necessary by the International Federation of Social
Workers (IFSW) (Blyth and Auffrey, 2008).
The bill permits gestational (but not genetic) surrogacy – which may be
remunerated – and which can be used only where it would be unsafe or
where there would be undesirable medical implications for a woman carrying the baby to term. Only an Indian citizen aged 21–35 may act as a
surrogate, and may have no more than five successful live births, including
her own children. Assisted Reproductive Technology (ART) banks will be
registered with the government to recruit surrogates (and donors).
The bill provides for legally enforceable contracts to be agreed between the ART bank and surrogate and between the intending parent(s)
and surrogate. The surrogate is required to:
• undergo medical testing for diseases that may endanger her health or
that of the parents or the child;
• refrain from engaging in any act that would harm the foetus during
pregnancy and the child after birth until the child is handed over to
the designated persons;
• agree to relinquish all parental rights concerning the child;
• agree to undergo foetal reduction if she is carrying more than one
foetus;
• obtain the consent of her husband if she is married.
For their part, the intending parent(s) must agree to accept the baby following delivery. They – and not the surrogate – will be deemed the child’s legal
parent(s). The provision for a single person to acquire parental status resolves
the anomaly highlighted by the case of Manji Yamada described above.
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Specific provisions apply in the case of foreign or non-resident intending
parent(s). They must demonstrate their ability to take the child to their
country of origin or residence and must also appoint a guardian in India who
will be responsible for the child during and after pregnancy until the child
has been handed to the intending parents. The local guardian will be obliged
to take custody of the child if the intending parent(s) fail to take delivery of
the child. If the intending parents or their legal representative fail to claim
the child within three months of the child’s birth, the guardian will be free
to bring up the child him- or herself or hand over the child to an adoption
agency.
Surrogacy, cross-border reproductive services and
their implications for social work
The IFSW has set out key principles that should govern reproductive services, and which therefore apply also to both cross-border reproductive
services and to surrogacy:
• human life, human sperm, eggs and embryos should not be subject to
commodification or commercial exchange;
• all humans are entitled to protection from all forms of discrimination
and exploitation, including where this affects their reproductive
capacities;
• the exercise of self-determination should be subject only to the
constraint that this does not impair the rights and legitimate interests
of others;
• competent, safe and affordable reproductive and sexual health-care
advice and services should be available free of government, institutional, professional, familial or other interpersonal coercion. Such
advice and services should be provided free of charge to gamete
and embryo ‘donors’ and surrogates;
• individuals conceived as a result of any assisted reproductive technology should have a right to full information about their genetic
heritage;
• IFSW ethical standards and ethical codes of national professional
associations should be applied to reproductive health care, and to
cross-border reproductive services in particular;
• social workers should be encouraged to participate in all appropriate
aspects of reproductive services to promote their adoption of these
principles (Blyth and Auffrey, 2008).
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The proposed Indian legislation, as far as it applies to surrogacy, falls far
short of these principles. The institutionalization of commercial surrogacy
explicitly promotes the commodification of women’s reproductive capacity,
contrary to a number of national and international codes (e.g. Council of
Europe, 1996; European Union, 2004; the UK’s Human Fertilisation and
Embryology Acts 1990 and 2008 and Canada’s Assisted Human Reproduction
Act 2004: Canada). Underlying financial arrangements affect the issue of
informed consent. There is a general acceptance globally of a prohibition on
the outright sale and purchase of human sperm, eggs and embryos, and
reproductive capacity. While there is some institutionalized support for the
compensation of ‘donors’ in recognition of the ‘inconveniences’ (European
Union, 2004) or the ‘time, inconvenience, and discomfort’ (Ethics Committee
of the American Society for Reproductive Medicine, 2007) related to the
‘donation’, there is no formalized agreement on the compensation of surrogates. However, an analogy with the fees paid to Indian surrogates in relation to living costs/average earnings within a given community may be
drawn from the Ethics Committee of American Society for Reproductive
Medicine (2007), that states in regard to egg donation: ‘Total payments to
donors in excess of $5,000 require justification and sums above $10,000 are
not appropriate’, since payments above this level are likely to compromise
the woman’s ability to give her informed consent by encouraging her to
minimize the risks involved in the donation. It is far from clear that Indian
surrogates will be protected from exploitation or duress. Indeed, the proposed contracts between the surrogate and the ART bank and between the
surrogate and the intending parents are very clear in highlighting the surrogate’s responsibilities, but far less explicit in highlighting her rights. In
particular there appear to be no provisions for counselling of surrogates, a
provision whose necessity is well accepted within the infertility counselling
profession (Baron et al., 2007). However in the Assisted Reproductive
Technologies (Regulation) Bill and Rules itself, all references to counselling
relate to patients, and although the proforma donor consent form in the bill
includes a statement about receiving counselling, this is entirely absent from
the equivalent form for surrogates.
Given our limited knowledge of how ethical procedures are implemented
in the Indian context, there is an urgent need for further research to understand the processes through which donors and surrogates agree to participate
in commercial reproductive services. From a socio-legal and humanistic
perspective, what concerns us most in such circumstances is the mechanism
through which contractual agreements are drawn up between the commissioning couples and a donor or surrogate. The literature is very sparse in this
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area and there is a great need to develop a critical debate on these crucial
aspects of human rights.
Another ethical question concerns the possibility of exploitation. Women
who work as surrogates in this commercial reproductive industry appear to
have little understanding of their rights, in terms of their own health and
well-being. Although very limited research is available, reports in the media
indicate a rather disconcerting outlook. Commercial surrogacy has been
legal in India since 2002, and there are reports of exploitation of women
from poorer backgrounds, where mortality and morbidity rates associated
with pregnancy are higher (Dolnick, 2008).
There is also a correspondingly higher likelihood of the rejection of the
transferred embryo. This raises problematic issues in relation to the surrogate’s financial and medical needs and rights should the pregnancy fail.
Moreover, it is unclear how or whether the surrogate’s family would be
compensated if she were to die during childbirth, leaving behind motherless
children.
The uncertain status of the child created via IVF and surrogacy raises
other legal, ethical and human rights concerns. One such concern is related to
the contraction of HIV by the pregnant surrogate. Potential surrogates are
tested for HIV before the transfer of an embryo; however, if a surrogate were
to be infected mid-term, it raises the possibility that the child may be abandoned, leading to a host of other difficult issues. Involuntary abandonment is
also a possibility. If the genetic couple both died due to some unforeseen
circumstances, who would then be the custodian of the child? There would be
a host of far reaching socio-economic, cultural, practical and survival problems over the legal status and adoption of such a child. Another ethical concern is the lack of systems to ensure that the foreign national’s unused eggs or
embryos are not harvested and stored and then sold to couples who want fairskinned children or to couples who do not have viable eggs/sperms (Sharma,
2008). These issues have very real implications for social work practice.
Discussion
Social workers globally have a moral imperative to advocate the implementation of international human rights declarations and conventions regarding
the respect and innate worth and dignity of all individuals. That imperative
includes advocating for gender equality and the rights of children. They have
a role in promoting individual reproductive choice and decision-making and
challenging reproductive health policies and practices that unjustifiably
restrict access to services. Social workers should advocate the development
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of safe and reasonable reproductive health services and for community
education in relation to fertility and reproductive health issues: they have a
significant role in challenging practices that exploit materially disadvantaged women for the purposes of reproduction, and advocating regulations
that ensure the protection of all individuals affected by reproductive services. Finally, they have a role in helping to improve the socio-economic
conditions that create the need to participate in surrogacy. Hence there is a
need for greater attention to the issue of cross-border surrogacy by social
work researchers and policy advocates (Blyth and Auffrey, 2008).
Conclusion
Given the elements of vulnerability, human rights, exploitation and hope
that converge in the area of reproductive services, social work internationally has an important role in ensuring that ethical issues are addressed and
positive change is spearheaded. Blyth (2009) argues that social workers
should engage in the debate on globalized reproductive services. He recommends developing an understanding of key policies as agreed by the IFSW
and its reference to international codes of human rights. This will provide a
basis for sketching out actions that social work might legitimately take to
ensure an appropriate balance between the rights of involuntarily childless
adults, potential donors and surrogates, and any child who may be conceived
or affected by the procedure (Blyth and Auffrey, 2008).
Cross-border reproductive services bring their own dilemmas and complexities and social work has a key role to play in educating and empowering
surrogates. All humans need protection from all forms of discrimination and
exploitation, including circumstances where this affects their reproductive
capacities (Blyth and Auffrey, 2008).
Moreover, the autonomy of surrogates in India may be compromised
because they are not the prime decision-makers in the process of bearing
children. Blyth and Auffrey (2008) endorse the right to receive competent,
safe and affordable reproductive and sexual health-care advice and services,
free from government, institutional, professional, familial or other interpersonal coercion. Social work professionals in India can play a vital role in
recognizing the need to empower surrogates to help them advocate for their
own welfare and safety.
Much of the available evidence regarding reproductive services and
surrogacy in India is media-based, and there is a lack of systematic data
about what is happening. This is not a good basis for developing understanding and knowledge for effective social work practice. There is a need
for both baseline and longitudinal studies that will help develop systematic
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knowledge about the issues faced by surrogates who are part of wider
global reproductive services, such that their true voices can be heard and
understood.
In India, where thousands of women die each year during pregnancy and
childbirth, the practice of surrogacy often reflects blatant exploitation of
vulnerable women, who are available for a fraction of the cost charged by
Western surrogates in countries where commercial surrogacy is permitted
(Blyth and Auffrey, 2008). Social work, with its commitment to and solidarity
with marginalized people, needs to influence policies such that women have
a voice in decisions that affect them. They should be in a strong position to
influence all those involved in making reproductive health-related decisions
(Blyth and Auffrey, 2008). Therefore they should give their attention to the
growing and little studied practice of cross-border surrogacy.
Note
1. In common with conventional usage, we have used the term ‘donor’ here, although
the inappropriateness of this term should be noted since a key element of
‘donation’ in this context involves payment to egg providers.
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Author biographies
George Palattiyil is Lecturer in Social Work in the School of Social and Political
Science, University of Edinburgh, UK.
Eric Blyth is Professor in the School of Human and Health Sciences, University of
Huddersfield, UK.
Dina Sidhva is Teaching Fellow in the School of Social and Political Science,
University of Edinburgh, UK, at the same address as the corresponding author.
Geeta Balakrishnan is Lecturer in the College of Social Work, Nirmala Niketan,
University of Mumbai, India.