By Divya Mascranghe
Procreative liberty is the right to choose whether or not to have children. Assisted reproductive technologies (ART) include various medical processes to help with infertility and conceiving, and can assist in the exercise of procreative liberty. Surrogacy is a form of assisted reproductive technology where a woman (surrogate mother) bears and births a child for another due to infertility or other personal reasons.
Surrogacy can be (a) partial (gestational), where the baby shares the genes of the surrogate mother and the intended father by artificial insemination of his sperm with her egg; or (b) full surrogacy (traditional), where the intended couple are the genetic parents of the child. Here, conception occurs through In Vitro Fertilisation (IVF). This form of assisted reproduction affects two groups of women; the surrogate mother and the intended mother.
Research has identified financial gain, seeking self-worth, and altruism as reasons for agreeing to surrogacy. However, surrogacy has been criticised for being a form of slavery and sex work arising out of economic exploitation of women, and a commodification of the female body. There have been criticisms of surrogacy and the ethics of selling motherhood and renting wombs.
Surrogacy can cause a series of difficulties for the surrogate mother, including psychological, physical, social, legal, and financial difficulties, and the consequent burden on the healthcare system. Surrogate mothers have been romanticised as angels who make dreams happen, while they are also stigmatised. Arguably, for some women, surrogacy gives them control over their own bodies, while for others, it is being controlled by others. Yet, one can argue that this perceived control is a mystification.
Physical and psychological challenges
Giving up a baby can cause psychological challenges for the surrogate mother, including increased risk of postnatal depression and feelings of guilt and anger. Studies show 32% of surrogate mothers have admitted to having psychological problems during and after surrogacy, with some seeking professional help. Most women in the UK complained of having some difficulty in handing over the surrogate child even after one year of having done so. Women in India have been forced to live out this challenging pregnancy alone and away from their families due to stigma and rejection.
Women from economically disadvantaged backgrounds have agreed to surrogacy for want of money without fully understanding the risks. Studies in the Global North have demonstrated that poor rural women of the Global South have sought commercial surrogacy as a means of survival.
A majority of surrogate mothers in the UK were from partly skilled or unskilled backgrounds and were either unemployed or working part time, whereas the majority of surrogate women in India were below the poverty line and were working in unskilled jobs. Research shows that many surrogates in the Global North are high school graduates and less educated than the intended parents. The office of the UN Human Rights Commissioner has expressed unease in the practice of contracting surrogate mothers from lower economies to bear children for wealthy commissioned parents from richer countries due to power imbalances causing risk to surrogate mothers and children.
The cost of surrogacy in India is significantly lower than in Canada or the US, and close to one-third of the cost in the UK. Commercial surrogacy has been compared as a form of labour. This low-cost option in India leaves room for exploitation of this labour force. Thus, illiterate, poor, and financially desperate women in India have been pushed to be surrogate mothers, either by their own spouses or by middlemen, losing their freedom in exercising reproductive rights and procreative liberty. These power relations therefore reinforce subjugation of women of a subset of race and class.
Social and family relationships
Studies have shown that surrogate mothers have been shunned by their neighbours or family who disapproved of the decision. Research has found that a majority of women said they experienced negative responses from people around them, including stigmatisation, which has forced them to keep their surrogacy a secret by hiding in hostels or fertility clinics. Equating surrogacy with sex work has caused further stigmatisation of Indian surrogate women.
Research has found that some women draw a “moral boundary” differentiating adoption (giving up their own baby) and surrogacy. Married women have spoken of their husband’s generosity in permitting them to be surrogates. Thus, does the surrogate mother in the Global South really have a choice in her decision? Where is her procreative liberty if she must choose between her husband’s consent and hiding in a clinic, miles away from home?
Laws and other systems of regulation
Article 8 of the European Convention on Human Rights states that it “…[does] not guarantee the right to found a family or the right to adoption”. Drabiak et al. have found that despite having regulations in the US, manipulation of prospective surrogates and intended parents by surrogacy agencies and disarray in the execution of commercial contracts in surrogacy are evident.
While Jadva et al., suggested that surrogate mothers in the UK had a positive experience and their narrative has not reflected the claim that there are negative outcomes for surrogate mothers, they admit that socially desired responses could not be eliminated in their interviews.
Unequal bargaining power and insufficient regulations have led to non-payment by the intended parents if there are unfavourable outcomes such as a stillbirth or deformity. The lack of a registration process has led to “unwanted” children being left in poverty and falling victim to trafficking. Legal rights and duties needed for this new relationship, encompassing unique social and psychological implications, have not been clearly laid down yet, including in Sri Lanka. Reproductive tourism and commercialised surrogacy has commodified women’s reproductive labour while putting their health and safety at risk.
(The writer is an Attorney at Law and a postgraduate student of the University of Colombo. Her research interests are gender, women’s studies and ethnicity)