There’s a photo I often show my audience before starting my lectures on “reproductive tourism.” It’s from a marketing brochure of the Akanksha infertility clinic in Anand, India, and features its medical director, Nayna Patel, standing regally amongst a group of seated women, each with her face strategically concealed. These women are commercial surrogate mothers, whose wombs are for rent to wealthy Indians and foreigners alike.
Their motivations are largely a mystery, but most believe it is for the money. A surrogate from another clinic had once told a journalist that, with a $4,000 debt and an alcoholic husband, she had first considered selling a kidney, but decided that the $7,000 surrogacy fee was the better option. Another surrogate, a 29-year-old widow with a young son, was six months pregnant with a child for an American couple when she told a BBC reporter that her motivation was a need to pay for son’s education and shelter. A few have cited a moral duty to alleviate the “curse” of infertility from the women who purchase their services.
Across India, but mostly clustered in Maharashtra and Gujarat, maternal surrogacy is an exploding industry, having arisen to fill a most unexpected global market void: the need to address the epidemic of infertility.
Infertility—A Real Issue
The existence of a global infertility epidemic is clearly at odds with our conception of the world as being overpopulated. But, primarily in wealthier, developed nations, the provision of medical reproductive services to people deemed infertile is now a billion- dollar global industry, spurred on both by advances in technology and the emergence of a globalized economy. Unsurprisingly, India is one of the world’s most popular providers of reproductive services, leveraging her medical depth, advantageous currency exchange, and pervasive poverty. But when human reproduction meets commerce, gender inequality, and wealth disparity, the potential for ethical transgression becomes great indeed.
A person is considered infertile if he or she has been having unprotected (heterosexual) sex for one year, with an intent to reproduce, without achieving pregnancy. Conservative estimates hold that at least one billion women worldwide (and an unknown number of men) are presently experiencing a degree of infertility. This estimate is stunted by the obvious fact that you don’t know if you’re infertile unless you’re actually trying to get pregnant. The actual number is therefore likely to be substantially higher. The experiences of assisted reproduction clinics suggest that a fair proportion—if not a majority—of infertility issues are so-called “male factor” issues, meaning that the problem is often related to sperm quality. Indeed, semen samples collected over the past seven decades suggest a global, dramatic reduction in semen quality, such that what is considered normal today might not even make the scale 70 years ago. This may be a universal, global human trend, or it may be relegated to the developed world. We just don’t know yet.
Many theories have arisen for the increase in infertility in both sexes. Undeniably, women in high income countries are waiting into their 30s and 40s to start their families, and this is dramatically reducing their ability to become pregnant. The rise of obesity and with it, diabetes, has certainly contributed. It is possible that soy products, mimicking human hormones, are affecting our reproductive cycles. Some have theorized that overuse of the female contraceptive pill has introduced hormones into the drinking water, or that some artificial compounds, such as plastics, may decay into substances that also mimic hormones. At this point, all of this is mere speculation. What is known is that the seeking of assisted reproductive technologies (ARTs) is at an all-time high, and shows all the signs of accelerating.
The services sought include in vitro fertilization (IVF—the classic “test tube baby”—a technology that has been with us for over 30 years now), fertility drugs, sperm and egg donation, and maternal surrogacy. It’s the latter, the act of a woman hiring out her womb to gestate an embryo on behalf of a client, that brings with it the most ethical concerns and media attention.
India as a Provider
With the increase in demand, and with the maturation of reproductive technologies and services, has come a global industry of cross-border reproductive service provision, rife with philosophical quandaries, legal pitfalls and ethical concerns. Presently, in terms of financial transactions, the United States is the world’s greatest provider of reproductive services. But hot on its tail is India, which is fast becoming the undisputed world champion of all manner of ARTs. The phenomenon of crossing borders to seek ARTs is most commonly called reproductive tourism, and is being monitored by ethicists and epidemiologists, myself among them, for its challenges to our ideas about the valuation of human biology. This is particularly true for maternal surrogacy, since it necessarily involves the biological cooperation of another human being unconnected to the infertile couple.
The power of the industry in India is based upon several factors. They include: (1) the overabundance of English-speaking, highly trained doctors, as every Indian family strives to have at least one doctor in its midst, (2) The existing, well-developed, and recognized medical tourism infrastructure, which includes integrated travel, hotel, and insurance services, (3) An advantageous currency exchange rate leading to low prices, often by a factor of 10 or more, (4) A complicit Indian government, and (5) perceptions of Indian women.
The last two are particularly interesting to me. The Indian government has actively been promoting its medical tourism services for some time now by, for example, sponsoring junkets around the world. The extent to which the state is complicit in encouraging the growth of reproductive services specifically is a bit more difficult to measure, but may include the nature of India’s adoption laws with respect to surrogates. A surrogate mother in India loses all rights to a child that is not genetically hers at the point of delivery; whereas, in some other countries, a surrogate tends to have some time after delivery to decide whether she wishes to state a claim on the child. It is unclear to what extent the law in India is shaped by the needs of industry, and to what extent it truly reflects the values of Indians.
The Social Implications of Surrogacy
The perception of Indian women is a subtle and largely immeasurable point. Poor, village-based Indian women are often perceived in some circles as being ideal surrogates due to their global image as demure and submissive. Indian women are perceived to be less likely to drink alcohol, to smoke, and to engage in other practices seen to be detrimental to a successful pregnancy. In other words, it is their powerlessness relative to men and to the structures of their society that make them attractive to this trade. Maternal surrogacy is where India’s dominance in the world ART market truly manifests, given her abundance of young, poor women.
And therein begins the discussion of the ethics of the international reproductive tourism industry. When clients from a wealthy country such as the United States, Canada, or the United Kingdom seek biological services from vulnerable—and likely uneducated—individuals in a poor country like India, the opportunity for exploitation, even unintentional, is great. A maternal surrogate in India is handsomely paid, receiving anything from $2,000 to $8,000 per pregnancy, which is considerably more than she is typically likely to see in a year. A strictly libertarian argument holds that “fair” monetary compensation, combined with freedom of choice, obviates any ethical concern. A more nuanced perspective asks, if the alternative is poverty and death, is there really a choice at all? This is the classic tension between autonomy and exploitation, in that a desperately poor person can be co-opted to express her autonomy in such a way that it leads to her exploitation. There are identical scenarios involving international organ tourism, in which the extreme poor are convinced to sell their organs, and in many forms of prostitution. The fundamental question becomes, is it ethical to seek a profoundly intimate (and sometimes self-damaging) service from a vulnerable stranger, knowing that she likely offers it from a position of desperation?
The Ethics of Surrogacy
My work as an epidemiologist and ethicist has been to explore and describe the phenomenon of maternal surrogacy in India, without passing judgment on the service providers, clients, or surrogates. I have managed to identify 21 distinct ethical pitfalls inherent in the extant industry. But I wish to bring readers’ attention to just two of them: insufficient medical advocacy and limited informed consent.
The present commercial model for maternal surrogacy in almost every clinic in the developing world holds that a contractual relationship is forged between the client (usually a woman or couple from a wealthy country), the clinic, and the surrogate. But from a medical perspective, the clinician is directly responsible for the care of both the client and the surrogate, though he or she is being paid by just the client. This is clearly a conflict of interest. Consider if a medical situation were to arise in which the clinician must act either to save the life of the fetus or the surrogate. He has a strong financial incentive to choose on behalf of the paying client, and thus the fetus. The absence of an independent medical advocate acting on behalf of the surrogate immediately nudges this relationship into the realm of exploitation.
Given that the surrogate is often quite poor, uneducated, and semi-literate, it seems unlikely that she is even aware of the dangerous nature of her unequal status in this commercial relationship. This vulnerability further complicates the proper receipt of true informed consent. In legal terms, informed consent is a process to avoid fraud and the imposition of one party’s will upon another. In medical ethics, it is the process of a clinician receiving genuine permission from an autonomous person to perform a medical procedure on that person.
Contrary to its portrayal in popular media, informed consent is not simply the receipt of permission. In TV shows like House, informed consent is co-opted from patients who are tricked into giving permission for a dangerous procedure. It is often rationalized away because “the doctor knows best.” True informed consent involves an ascertainment that the patient understands the nature of the procedure and the likelihood of all its known risks.
Illiteracy is but one barrier preventing the communication of such risk. But when risk is presented in the same package as a significant financial incentive for accepting that risk, the negative consequences are necessarily muted in comparison.
But what are these risks? Childbirth is, after all, a natural process that pretty much all of these women have already gone through, since proven gestational ability is usually a prerequisite for serving as a surrogate. However, there is a reason that maternal mortality rates are monitored in every country: pregnancy is an innately dangerous state for a woman, especially in low income countries. Surrogates risk metabolic and circulatory complications, such as diabetes or extreme hypertension. Death is a small but real risk, as is, through gestational injury, impairment of her ability to have future children.
Those are the known, medical risks that any obstetric specialist knows to communicate to a woman considering pregnancy. In the case of maternal surrogacy in India, there are social risks that are just as damaging as the biological ones. Domestic violence and household strife have been known to arise when a surrogate’s husband dislikes the fact that she is carrying “the child of another man.” There is one story of a surrogate being forced from her village after her neighbours learned that she was carrying the baby of two gay Israeli men. There is also uncertainty surrounding whether the surrogate will be able to control her diet, or enjoy continuing carnal relations with her husband, or whether her current childcare responsibilities will be interrupted. These are all downstream negative consequences of the surrogacy procedure that need to be considered when formalizing the contractual relationship, though there is no evidence that these considerations are formally included in existing surrogacy negotiations.
Further complicating the quest for informed consent is the unavoidable power imbalance between doctor, client, and surrogate. As the least powerful member of this triad, the surrogate is at risk for being cowed into compliance. The fear is that unless conscious and overt steps are taken to ensure her full expression of choice and autonomy, a poor, semi-literate village woman will typically accept at face value the estimation of risk presented by a wealthy, educated, and typically male doctor. It takes unusual strength to find the voice to question points in a formal contract if presented as a fait accompli by an officious clinician. It is in some ways the legacy of India’s colonial heritage, wherein informed consent can literally be coerced by identity; an English-speaking clinician in Western garb wields extraordinary cultural authority.
A brochure of one Indian ART clinic featured the following quotation from a surrogate who had recently produced a child for an American client: “It’s a miracle. I myself was wondering how I managed to deliver such a beautiful American, totally white baby. I couldn’t believe it—I am very happy.” The statement is presented as a marketing tool for potential foreign clients. But what should be evident is that this woman failed to understand the genetic realities of the procedure in which she was a central part. In other words, truly informed consent was not in play.
There is no doubt that maternal surrogacy presents a ripe opportunity for very poor women to make a dramatic improvements in their families’ lives. So long as infertility remains prevalent globally, and so long as India experiences the tandem of advantageous global prices and widespread poverty, it is assured that India’s reproductive tourism industry will continue to grow. Our goal, as responsible global consumers seeking to minimize suffering and exploitation, should be to make the process as fair and as safe as possible. Ultimately, the creation of life is meaningless unless we also strive to respect the living.
Raywat Deonandan is an Assistant Professor in the Interdisciplinary School of Health Sciences at the University of Ottawa, the former Chief Science Advisor to Assisted Human Reproduction Canada, and an expert on the global industry of reproductive medical tourism.
India’s Surrogacy Laws
Commercial surrogacy remains controversial and is banned in many countries. But in India, a socially conservative society, surrogacy has thrived since the Supreme Court legalized the practice in 2002. A report by the Confederation of Indian Industry estimates the practice will generate $2.3 billion a year in 2012.
Women’s rights advocates claim that the lack of a clear law on surrogacy and the commercialization of an unregulated sector have left room for unethical medical practices and the exploitation of both surrogates and infertile couples.
Partly due to pressure from campaigners, the government set out a draft bill last year to limit the age of surrogate mothers to 35, set a maximum of five pregnancies—including their own children—and to make medical insurance mandatory. A further proposal would make it compulsory for prospective parents to show that a child born to a surrogate mother will have automatic citizenship in their home country. The bill also aims to stop clinics sourcing, supplying, and taking care of the surrogate mothers themselves.
SAMA and Surrogacy
The New Delhi-based NGO SAMA is a resource group for women and health. They work closely with marginalized communities to address health issues from a perspective of gender, caste and rights. They are one of the few grassroots groups examining the reproductive tourism phenomenon from the surrogate perspective, and have been lobbying for policy responses from the Indian government to better protect women’s rights. One of their most impactive publications is “Cheap & Best,” an analysis of websites, brochures, and advertisements on assisted reproductive technologies in India. Their website:www.samawomenshealth.org