Photo by Camylla Battani on Unsplash

In Autonomy, Justice, and Injustice with Indian Gestational Surrogacy, Deborah Hamm describes justice and autonomy as pertinent to gestational surrogacy in India. Central to ethical deliberations on surrogacy, she suggests, should be the complexity and contexts within which these decisions are made. Women of low social standing volunteer to be gestational surrogates for internationals seeking to exercise their reproductive freedom to have a child. Even though the women volunteering to be gestational surrogates choose to do so autonomously, factors such as financial incentives and social standing strongly influence their decision.

Hamm argues that surrogates in India do not have autonomous decision-making power because the benefit of earning a living and surviving is greater than the perceived risk of carrying someone else’s child. Even though the principle of autonomy is used across cultures to protect these women, their limited freedom to truly choose their fate is unjust.

The surrogacy industry, which was legalized but unregulated in 2002, grew to become a $375 million industry with 3000 clinics. Recently, the Surrogacy Act (2022) and the Assisted Reproductive Technology Act (2021) have been enacted. The Surrogacy Act bans and penalizes commercial surrogacy and does not allow for monetary compensation except for medical insurance coverage. The Assisted Reproductive Technology Act aims to regulate the industry more by establishing a registry of clinics and banks that offer assisted reproductive technologies. The registry monitors the functioning of these clinics.

Regulating and monitoring the clinics from which commercial surrogacy operates may be a step towards ensuring a safer passage for these women. However, the implementation of these laws within the social, cultural, and religious paradigms offers the greatest challenge. These women, who are often of color and impoverished, remain subject to the cultural and legal systems that govern them, with little to no say. These acts may also leave these women in an even more dire position, seeing as they are not getting paid anymore, whereas they were in the past. Additionally, local Indian people seeking surrogacy are left with fewer choices. Fewer choices result from more stringent rules pertaining to the surrogate having to be related to the couple and increased cost.

Although the situation remains complex, the difference needed to support women seeking to be altruistic surrogates may still lie in social reform and change.

Camille Castelyn thanks Sarosh Saleem, who is an expert on medical tourism and assistant professor and head of the department at Shalamar Medical and Dental College and Head of Bioethics Unit, Pakistan, and Anamika Krishnan, who is an expert in health law, an attorney, and founder of the Global Bioethics Collective, for their shared insights that contributed to this blog post.