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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]

International Social Work53(5) 686–700

© The Author(s) 2010Reprints and permission: sagepub.

co.uk/journalsPermissions.navDOI: 10.1177/0020872810372157

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Globalization and cross-border reproductive services: Ethical implications of surrogacy in India for social work

George PalattiyilUniversity of Edinburgh, UK

Eric BlythUniversity of Huddersfield, UK

Dina SidhvaUniversity of Edinburgh, UK

Geeta BalakrishnanUniversity of Mumbai, India

AbstractSurrogacy 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.

Palattiyil et al. 687

Keywords cross-border reproductive care, globalization, health tourism, India, International Federation of Social Workers, surrogacy

IntroductionEvery 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 encourage-ment, 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 economi-cally 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 populationThe 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 pri-vate 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 phe-nomenon 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 careInfertility and involuntary childlessness affect many of the world’s child-bearing 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


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 con-troversial 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 invol-untary childlessness (Daar and Merali, 2002); second, the development of technological interventions available to an increasing range of potential recip-ients, 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 fertil-ity 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;


• 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 charac-teristic 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 ser-vices 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 ser-vices is becoming increasingly competitive, and surrogacy in India is esti-mated 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 mar-ket 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 IndiaLittle documented evidence exists concerning surrogacy in India, and no systematic examination has yet been reported concerning the health and


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 lim-ited alternative opportunities to generate comparable levels of income and having limited autonomy in patriarchal family contexts, may experi-ence 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 sur-rogate 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


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 2009Proposed 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 car-rying 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 bet-ween 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 follow-ing 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.


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 workThe IFSW has set out key principles that should govern reproductive ser-vices, 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, institu-tional, 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 tech-nology 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).


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 surro-gates. However, an analogy with the fees paid to Indian surrogates in rela-tion 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 pro-posed contracts between the surrogate and the ART bank and between the surrogate and the intending parents are very clear in highlighting the surro-gate’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 under-stand 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 commis-sioning couples and a donor or surrogate. The literature is very sparse in this


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 surro-gate’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 aban-doned, 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 prob-lems over the legal status and adoption of such a child. Another ethical con-cern 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 fair-skinned children or to couples who do not have viable eggs/sperms (Sharma, 2008). These issues have very real implications for social work practice.

DiscussionSocial workers globally have a moral imperative to advocate the implemen-tation 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


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 disadvan-taged women for the purposes of reproduction, and advocating regulations that ensure the protection of all individuals affected by reproductive ser-vices. 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).

ConclusionGiven the elements of vulnerability, human rights, exploitation and hope that converge in the area of reproductive services, social work internation-ally 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 recom-mends 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 com-plexities 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 inter-personal 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 under-standing and knowledge for effective social work practice. There is a need for both baseline and longitudinal studies that will help develop systematic


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.

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