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Exploitation and Harm in the Context of Indian Commercial Surrogate Women
Philippa Mary Trowse
LLB (QUT); LLM (QUT)
Submitted in fulfilment of the requirement for the degree of Doctor of Philosophy.
Queensland University of Technology, Faculty of Law, School of Law
Submitted 2018
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KEYWORDS
Commercial surrogacy
Commercial surrogacy AND India
International surrogacy
Surrogacy AND India
Surrogate women AND India
Assisted Reproductive Technology
ART
Exploitation
Harm Principle
On Liberty
John Stuart Mill
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ABSTRACT
Commercial surrogacy is prohibited throughout Australia, and in Queensland, New South Wales and the Australian Capital Territory the prohibition extends extra- territorially. However, Australian intended parents have engaged in commercial surrogacy overseas, and in particular in India. This thesis undertakes a systematic analysis of primary and secondary legislative material and identifies exploitation as a prominent reason for the prohibition on commercial surrogacy by the Australian Parliament. An analysis of the theoretical understandings of the concept of exploitation is conducted, and three key concepts that occur most frequently in the literature as being necessarily present in an exploitative transaction in the context of commercial surrogacy are identified. They are: taking advantage of a vulnerability, a defect in consent and an unfair distribution of benefits.
The credibility of the assertion by Parliament that commercial surrogacy exploits surrogate women is then tested through a systematic and comprehensive analyses of all the empirical evidence surrounding the lived experiences of Indian commercial surrogate women. The three key concepts of exploitation – taking advantage of a vulnerability, a defect in consent and an unfair distribution of benefits - are then employed to reveal evidence of Indian surrogate women being exploited. While evidence of exploitation affirms the assertion made by Parliament, it does not necessarily justify prohibition of the conduct. Mill’s harm principle is synthesised and employed as a normative framework to determine whether the exploitative conduct of commercial surrogacy harms Indian surrogate women, adding to the debate of whether the prohibition on commercial surrogacy is justified.
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TABLE OF CONTENTS KEYWORDS ...... 2 ABSTRACT ...... 3 TABLE OF CONTENTS ...... 4 LIST OF TABLES ...... 10 LIST OF APPENDICES ...... 11 GLOSSARY ...... 12 STATEMENT OF ORIGINAL AUTHORSHIP ...... 13 ACKNOWLEDGMENTS ...... 14 CHAPTER 1: INTRODUCTION ...... 15 I Background and Significance ...... 16 II Literature Review: Gaps in Literature, and Original Contributions to Knowledge ...... 24 A The Law of Commercial Surrogacy in Australia: Historical Development ...... 24 B Legal and Practical Problems Presented by Commercial Surrogacy ...... 25 C The Values Underpinning the Legislative Prohibition ...... 27 D Mill’s Harm Principle and the Context of Commercial Surrogacy ...... 29 E Exploitation and Commercial Surrogacy ...... 32 F The Experience of Commercial Surrogate Women in India ...... 34 G Applying Mill’s Harm Principle and the Concept of Exploitation to this Context ...... 36 H Significant Questions for Law, Policy, Practice and Theory ...... 37 I Research Questions (RQ) ...... 37 J Original and Significant Contributions to Knowledge ...... 38 III Methodology, Scope and Limitations ...... 40 A Methodology...... 40 B Scope and Limitations of this Thesis ...... 43 IV Thesis Outline and Key Findings...... 44 CHAPTER 2: THE LEGISLATIVE FRAMEWORK OF COMMERCIAL SURROGACY IN AUSTRALIA ...... 49 I Introduction: Multiple Forms of Surrogacy and Key Concepts ...... 49 A Terminology ...... 52 Table 2.1 Terminology in the different jurisdictions...... 54 II The Legislative Framework for Commercial Surrogacy in Australia ...... 55 A Introduction ...... 55 B Circumstances of the Offence ...... 56 Table 2.2 Overview of offences ...... 58 C Extra-Territorial Jurisdiction ...... 60 5
D Summary of the Legislative Framework for Commercial Surrogacy in Australia ...... 61 III Legal and Practical Problems Arising from Commercial Surrogacy Arrangements ...... 62 A Introduction ...... 62 B Parentage ...... 66 1 State parentage orders ...... 67 2 Parentage orders under the Family Law Act 1975 (Cth) ...... 68 3 Declaration of parentage under the Family Law Act 1975 (Cth) ...... 68 4 Adoption ...... 70 C Citizenship ...... 71 1 Australian citizenship ...... 72 2 Citizenship in India ...... 74 D Birth Certificates ...... 77 1 Australian birth certificates ...... 78 2 Indian birth certificates ...... 78 E Summary of Legal and Practical Problems Arising from Commercial Surrogacy Arrangements ...... 79 IV Policies and Values Underpinning the Legislative Framework ...... 81 A Historical Perspective ...... 81 B Legislative Reviews, Government Committees, Law Reform Commission Reports and Other Government Inquiries ...... 85 1 Queensland ...... 86 2 New South Wales ...... 88 3 Australian Capital Territory ...... 91 4 Tasmania ...... 92 5 Victoria ...... 94 6 South Australia ...... 95 7 Western Australia ...... 96 8 Family Law Council ...... 97 9 NHMRC...... 99 10 Commonwealth Inquiry ...... 99 C Summary of Policies and Values Underpinning the Australian Legislative Framework ...... 100 V Chapter Findings and Conclusions ...... 101 CHAPTER 3: MILL’S HARM PRINCIPLE ...... 103 I Introduction: The Nature of Mill’s Harm Principle, and its Relevance for this Thesis ..... 103 II Further Analysis of the Harm Principle ...... 111 6
A Agents Affected ...... 112 B What Constitutes the Type of Harm that Concerns Others? ...... 114 C What Type of Harm Attracts the Harm Principle? ...... 120 D How Does Causation Impact on the Harm Principle? ...... 127 E What Degree of Harm is Sufficient to Engage the Harm Principle and How is it Measured?...... 131 III Conceptual Conclusions About Mill’s Harm Principle in the Context of Commercial Surrogacy in India ...... 138 CHAPTER 4: EXPLOITATION ...... 145 I Exploitation Identified as a Policy Value Underpinning the Prohibition of Commercial Surrogacy ...... 145 II What is ‘Exploitation’ Generally? ...... 147 A Types of Exploitation ...... 148 B Harm in the Context of Exploitation ...... 151 C Theories about Exploitation ...... 152 D Three Key Concepts: Taking Advantage of a Vulnerability; Defective Consent; and Unfair Distribution of Benefit ...... 156 1 Taking advantage of a vulnerability ...... 157 2 Defective consent ...... 159 3 Unfair distribution of benefits ...... 164 E Summary ...... 166 III What is ‘Exploitation’ in the Indian Commercial Surrogacy Context? ...... 168 A Difficult Issues ...... 168 B Under What Circumstances Might Commercial Surrogacy be Exploitative? ...... 171 1 Taking advantage of a vulnerability ...... 171 2 Defective consent ...... 172 3 Unfair distribution of benefit ...... 178 C Findings and Conclusions ...... 184 CHAPTER 5: EXPERIENCES OF THE INDIAN SURROGATE WOMEN ...... 187 I Introduction ...... 187 II The General Context of Indian Society – Economics, Education, Culture and Health .... 189 A Economic Environment ...... 190 B Education and Literacy ...... 194 Table 5.1: Literacy rate in India ...... 194 Table 5.2: Literacy rate in Gujarat ...... 195 Table 5.3: Literacy rate in Delhi ...... 195 C Culture/Religion/Caste ...... 196 7
D Healthcare for Women ...... 201 E Summary ...... 204 III Social Science Evidence of the Experiences of Commercial Surrogate Women...... 205 A Introduction ...... 205 B General Overview of the Nine Empirical Studies ...... 208 C Variations in Studies and Conclusions ...... 219 D Taking Advantage of a Vulnerability ...... 220 Table 5.4 Family income of surrogate women in CSR report ...... 222 Table 5.5 Family income of surrogate women in Sama report ...... 224 E Defect in Consent ...... 236 1 Competence ...... 237 2 Sufficient Information: Literacy and education, general nature of arrangement, and core medical conditions (embryo transfer, foetal reduction, caesarean section) ...... 237 3 Voluntariness ...... 250 4 Summary of consent: A spectrum of outcomes/findings ...... 255 F Unfair Distribution of Benefits ...... 263 1 Payment and other benefits ...... 264 2 Denial of benefits ...... 270 3 Detriments ...... 272 4 Stigma ...... 280 5 Summary of unfair distributions of benefits: A spectrum of outcomes/findings ...... 284 G Analysis of the Themes Depicting Evidence of Exploitation ...... 289 1 Taking advantage of a vulnerability ...... 289 2 Defect in Consent ...... 291 3 Unfair distribution of benefits ...... 296 4 Overall conclusion of analysis of the themes depicting evidence of exploitation ..... 301 H Findings and Conclusions of Chapter Five...... 302 CHAPTER 6: APPLICATION OF THE HARM PRINCIPLE IN THE CONTEXT OF COMMERCIAL SURROGATE WOMEN IN INDIA ...... 305 I Introduction ...... 305 II Evidence of Harm ...... 306 A Physical Harm ...... 306 B Psychological Harm ...... 308 III Harm Within the Context of Mill’s Harm Principle ...... 311 A Identify Set-Backs and Isolate Interests (Step 1) ...... 311 1 Physical set-backs ...... 312 8
2 Psychological set-backs ...... 313 3 Summary of interests affected ...... 313 B Consent and Minor Harms and Hurts (Step 2) ...... 314 1 Consent ...... 314 2 Minor harms and hurts ...... 317 C Assessment of Set-Backs to Interests to Determine Whether Protection by Harm Principle Required (Step 3)...... 318 1 Interests ...... 318 2 Set-backs ...... 318 D Benefits (Step 4) ...... 323 Table 6.1 Causes, set-backs and interests affected ...... 324 E Overall Assessment of Harm (Step 5) ...... 325 1 Measuring the harm against the prevailing environment of the Indian surrogate mother ...... 325 2 Calculation of set-back to interests versus benefits ...... 328 F Summary of the Application of the Harm Principle ...... 332 G Findings and Conclusions ...... 337 CHAPTER 7: CONCLUSION ...... 340 I Introduction ...... 340 II Significant and Original Contribution to Scholarship ...... 340 III Findings and Areas of Further Research ...... 342 A Indian Surrogate Women are Exploited ...... 343 B Indian Surrogate Women Suffer Risk of Harm as a Result of Commercial Surrogacy Arrangements ...... 345 C Indian Surrogate Women Suffer Actual Harm as a Result of Commercial Surrogacy Arrangements ...... 346 D Conclusion about Whether this Thesis Supports an Argument that Commercial Surrogacy Should be Prohibited ...... 346 E Areas of Further Research ...... 349 Appendix 1: Outline of Research Studies ...... 350 Appendix 2: CASP Rigour of Data Analysis ...... 353 Appendix 3: Strengths and Weaknesses of Empirical Studies ...... 355 Appendix 4: Surrogacy Costs and Earnings ...... 357 Appendix 5: Research Questions, Resource, Search Terms, Methodologies, Sources, Original and Substantial Contributions to Knowledge, and Key Findings ...... 358 BIBLIOGRAPHY ...... 363 A Journal Articles/Books ...... 363 9
B Cases ...... 372 C Legislation ...... 374 D Parliamentary Debates/Hansard ...... 376 E Parliamentary Reports and Advice ...... 377 F Guidelines ...... 379 G Newspaper Articles ...... 379 H Other ...... 380
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LIST OF TABLES
CHAPTER 2:
Table 2.1 Terminology in the different jurisdictions 53
Table 2.2 Overview of offences 57
CHAPTER 5:
Table 5.1 Literacy rate in India 192
Table 5.2 Literacy rate in Gujarat 193
Table 5.3 Literacy rate in Delhi 193
Table 5.4 Family income of surrogate women in CSR report 219
Table 5.5 Family income of surrogate women in Sama report 222
CHAPTER 6:
Table 6.1 Causes, set-backs and interests affected 322
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LIST OF APPENDICES
APPENDIX 1 Outline of Research Studies 348
APPENDIX 2 CASP Rigour of Data Analysis 352
APPENDIX 3 Strengths and Weaknesses of 354 Empirical Research APPENDIX 4 Surrogacy Costs and Earnings 356
APPENDIX 5 Research Questions, Resources, 357 Search Terms
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GLOSSARY This section outlines some universal meanings which are attributed to surrogacy arrangements generally. A jurisdictional specific definition section is contained in the Literature Review in chapter 2.
Altruistic surrogacy is where the surrogate mother receives no money or benefit except the reasonable costs of the surrogacy arrangements.
Commercial surrogacy is where the surrogate mother receives payment above and beyond the reasonable costs of the surrogacy arrangement.
Cross border surrogacy occurs where intended parents engage in surrogacy arrangements other than in their jurisdiction of residence.
Gestational or full surrogacy occurs where the woman bears no genetic relationship to the child she carries. With the development of in vitro fertilisation and embryo transfer, the intended mother’s eggs or donor eggs can be used in the procedure.
International surrogacy occurs where the intended parents travel to another country to engage in a surrogacy arrangement.
Intended parent or intended parents are the person or persons to agree to become permanently responsible for the custody and guardianship of the child or children born as a result of a surrogacy arrangement.
Parentage order is a state court order transferring the parentage of the child born as a result of a surrogacy arrangement from the surrogate mother and her partner, if she has one, to the intended parents.
Parenting order is derived from the Family Law Act 1975 (Cth) and provides the intended parents with the day to day care of the child until he or she reaches the age of majority. It does not facilitate a transfer of parentage.
Surrogate mother or surrogate woman is the woman who becomes pregnant, gives birth and relinquishes the child or children born as a result of a surrogacy arrangement.
A surrogacy arrangement or surrogacy agreement is the arrangement under which a woman (surrogate mother or surrogate woman) agrees to become pregnant with the intention that the child born is treated not as her child but as the child of the intended parent or intended parents.
Traditional or partial surrogacy is where the woman who carries the child is the child’s genetic mother. In other words, the surrogate mother’s eggs are used in the fertilisation procedure. 13
STATEMENT OF ORIGINAL AUTHORSHIP
The work contained in this thesis has not been previously submitted to meet requirements for an award at this or any other higher education institution. To the best of my knowledge and belief, the thesis contains no material previously published or written by another person except where due reference is made.
QUT Verified Signature
Signature
9 July 2018
Date
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ACKNOWLEDGMENTS
Writing a thesis is an individual experience that tests one’s character, commitment and tenacity, yet opens a world of discovery and opportunity. It’s journey that would not be possible without the help and support of many people over many years, in particular my three supervisors to whom I am extremely indebted and grateful.
My journey would not have begun without the support of my principal supervisor, Professor Ben Mathews, whose guidance, reassurance and brilliant research skills allowed me to grow and develop as an academic and a person. Ben gave his time and knowledge freely and generously as well as providing emotional support, understanding and clarity through the most arduous times. He believed in me more than I believed in myself, and his support was unwavering and genuine. I could not have asked for a finer supervisor. I was also incredibly fortunate to have Professor Lindy Willmott and Professor Ben White as associate supervisors whose experience and knowledge contributed enormously throughout this thesis. Their inquring minds, clarity of expression and academic prowess kept me focussed and alert to the challenge.
I could not have continued to completion without the support of my friends at the QUT Law School who supported and encouraged me to continue on to completion – celebrating the highs and understanding the lows. I would also like to acknowledge professional editor Ellie Gleeson who provided proofreading services according to the guidelines laid out in the university endorsed national guidelines for editing research theses and Ilana Bolingford who provided valuable formatting assistance.
I would also like to thank my family – Andrew, Tom, Ben and Emily - who put up with my absence and tolerated my moods so that I could complete my thesis. You gave me time and understanding. Thank you! Finally I would like to acknowledge my mother, Nancy Dunn who was there at the beginning with love and support. 15
CHAPTER 1: INTRODUCTION
Surrogacy has changed the reproductive landscape of modern Australia.1 It has opened doors to reproduction where previous attempts have failed or been impossible; and expanded our concept of parenthood well beyond the traditional heterosexual ‘nuclear family’. However, surrogacy creates legal and ethical challenges and like many progressive technologies, attracts disapproval and criticism as well as support and appreciation. The former is reflected in state and territory legislation which prohibits commercial surrogacy – that is, where the surrogate mother is paid a fee for her services.
However, the prohibition of commercial surrogacy in Australia has not deterred intended parents from travelling off-shore to engage in this practice. In fact, more Australian intended parents engage in surrogacy overseas than in Australia.2 Many have travelled to India because of its accessibility, low cost and high medical standards.3 Between 2009 and 2011 commercial surrogacy dramatically increased by over 270% in India.4 Despite imposing limitations to access by foreigners in 2012, commercial surrogacy services are still being administered in India with a reported 3,000 clinics operating in 2016, some of which are accessible to foreigners.5
Overseas commercial surrogacy arrangements can cause problems for intended parents because pathways to parentage are obstructed. The rights of the child may also be affected due to inconsistent approaches to citizenship and birth registration, and the rights of surrogate women are restricted through lack of regulation and
1 Renate Klein, Surrogacy in Australia: New Legal Developments’ (2011) 23(2) Bioethics Research Notes 23, 23. In this context I refer to surrogacy through the use of in vitro fertilisation. It is respectfully acknowledged that indigenous customary practises akin to surrogacy have taken place prior to this time. 2 Standing Committee on Social Policy and Legal Affairs, The Parliament of the Commonwealth of Australia House of Representatives, Surrogacy Matters, Inquiry into the Regulatory and Legislative Aspects of International and Domestic Surrogacy Arrangements (April 2016) 26. 3 Amrita Pande, ‘Global Reproductive Inequalities, Neo-Eugenics and Commercial Surrogacy in India’ (2016) 64(2) Current Sociology Monograph 244, 246 Other reasons include surrogate women having less rights over the child and over their bodies. Sheela Saravanan, ‘An Ethnomethodological Approach to Examine Exploitation in the Context of Capacity, Trust and Experience of Commercial Surrogacy in India (2013) 8(10) Philosophy, Ethics and Humanities in Medicine http://www.peh- med.com/content/8/1/10. 4 Sam Everingham, Martyn A Stafford-Bell and Karin Hammarberg, ‘Australia’s Use of Surrogacy’ (2014) 201(5) Medical Journal of Australia 1, 1. 5 Pande, above n 3, 246. 16
questionable practices. The current prohibitive legislative framework offers little protection from these issues.
Exploitation of surrogate women is one of the cornerstone values6 underpinning the prohibition of commercial surrogacy. However, what the term exploitation means, whether it is in fact occurring and whether the prohibition is justified by this value has not been tested.
This thesis adds a significant contribution to scholarly research by exploring and analysing the condition of exploitation and the lived experiences of Indian surrogate women to determine whether these women are exploited and harmed when they engage in commercial surrogacy arrangements. A further contribution is added by employing Mill’s harm principle as a normative framework against which potential harm to the women is measured. Multiple bodies of knowledge are synthesised and integrated to conduct an intra-disciplinary critique of commercial surrogacy in the Australian context. The three areas of law, practice, and theory are addressed through the exploration of primary and secondary legislative material, description of legal and practical problems, analysis of social science and empirical research data, and application of the theoretical framework of Mill’s harm principle.
This chapter outlines the background to and significance of this thesis (section I). A literature review is conducted in section II which identifies gaps in the literature and the original contribution this thesis makes to knowledge. Section III describes the methodology and research design, including the scope and limitations. Finally, section IV provides an outline of the thesis.
I BACKGROUND AND SIGNIFICANCE
A surrogacy arrangement is one where a woman agrees to become pregnant with the intention that the child who is born is not treated as her own, but as the child of
6 While ‘values’ shape policies, the interpretation of the concept of ‘value’ is contested. Some consider values are ‘preferences, needs, motivators, concepts and situational needs’, while other see them as ‘interests, pleasures, likes, duties, obligations and attractions.’ Lida Shams, Ali Akbari Sari and Shahram Yazdani, ‘Values in Health Policy - A Concept Analysis’ (2016) 5(11) International Journal of Health Policy and Management 623, 623. For the purpose of this thesis, the reasons underpinning the policy decision to prohibit commercial surrogacy are described as ‘values’. 17
another person or persons.7 It has been acknowledged as beneficial8, condoned as no worse than other commercial transactions which take place in similar social and economic circumstances9, and criticised for being exploitative and commodifying.10 Much of the criticism is derived from surrogacy’s subversion of traditional conceptions of pregnancy, gestation and motherhood.11
In a surrogacy arrangement, the intended mother does not give birth to the child, and the woman who gives birth does not intend to nurture and raise the child, instead relinquishing her ‘maternal rights’ to someone else. For some, this offends important social values connected to the rights of the child, the rights of the birth mother, and the integrity of the family unit.12 Moreover, taken as a whole, some may argue it redefines existing concepts of parenthood and childhood. Commercial surrogacy arrangements arouse particularly high levels of controversy, given their characteristics.
Commercial surrogacy is prohibited in Australia, but the practice continues.
Surrogacy can be altruistic or commercial in nature. In an altruistic surrogacy arrangement, no money or other benefit is transferred to the surrogate mother, except for the reasonable expenses of the pregnancy and associated costs. In contrast, surrogacy arrangements involving expenses beyond those which are ‘reasonable’ – typically extending to actual payment for the surrogate’s services – are known as ‘commercial surrogacy arrangements’.13
7 Surrogacy Act 2010 (Qld) s 7. 8 Jenni Millbank, ‘Responsive Regulation of Cross-Border Assisted Reproduction’ (2015) 23 Journal of Law and Medicine 346, 347 cites Ethics Committee of the ASRM, ‘Cross-Border Care: A Committee Opinion’ (2010) 100 Fertility and Sterility 645, 646. 9 Stephen Wilkinson, ‘Exploitation in International Paid Surrogacy Arrangements’ (2016) 33 Journal of Applied Philosophy 125, 141. 10 Elly Teman, ‘The Social Construction of Surrogacy Research: An Anthropological Critique of the Psychosocial Scholarship on Surrogate Motherhood’ (2008) 67(7) Social Science & Medicine 1104; R Edelmann, ‘Surrogacy: The Psychological Issues’ (2004) 22(2) Journal of Reproductive and Infant Psychology 123; J C Cicarelli and L J Beckman, ‘Navigating Rough Waters: An Overview of Psychological Aspects of Surrogacy’ (2005) 61(1) Journal of Social Issues 21. 11 Paula Abrams, ‘The Bad Mother: Stigma, Abortion and Surrogacy’ (2015) 43(2) Journal of Law, Medicine & Ethics 179, 179. 12 Penne Watson Janu, ‘The Case for Discouragement of Surrogacy Arrangements’ (1996) 4 Journal of Law and Medicine 72. 13 Surrogacy Act 2010 (Qld) ss 10, 11; Surrogacy Act 2010 (NSW) ss 7, 9; Assisted Reproductive Treatment Act 2008 (Vic) s 44; Surrogacy Act 2012 (Tas) ss 8, 9; Family Relationships Act 1975 (SA) ss 10H(1), 10HA(2)(i); Surrogacy Act 2008 (WA) s 6; Parentage Act 2004 (ACT) s 40. 18
While altruistic surrogacy is permitted in Australia subject to regulatory requirements, commercial surrogacy is expressly prohibited and criminalised in all Australian jurisdictions.14 In three states and territories, the prohibition extends to overseas commercial surrogacy arrangements. Despite this, the number of Australian intended parents engaging in international commercial surrogacy has increased dramatically over the last decade.15
Commercial surrogacy and overseas markets. With the advent of reproductive travel, surrogacy destinations have emerged throughout the world, thereby allowing intended parents from jurisdictions which limit surrogacy opportunities to avail themselves of services in more permissive jurisdictions. Factors such as medical expertise, affordability of healthcare, sophisticated medical facilities and a good tourism infrastructure make Asia an attractive destination for medical treatment.16 More intended parents in Australia engage in surrogacy arrangements overseas than within Australia. 17 There are a number of reasons for this, including difficulty in finding a surrogate mother which has been attributed, in part, to the prohibitive laws in Australia, difficulty in navigating and understanding the complexities and variations of the surrogacy legislation in the six jurisdictions comprising Australian surrogacy law, and accessibility for individuals and same-sex couples.18 Estimates of overseas commercial surrogacy cases (as at April 2016) are approximately 250 per year.19
14 The Northern Territory does not have legislation which specifically prohibits commercial surrogacy. 15 Standing Committee on Social Policy and Legal Affairs, The Parliament of the Commonwealth of Australia House of Representatives, Surrogacy Matters, Inquiry into the Regulatory and Legislative Aspects of International and Domestic Surrogacy Arrangements (2016) 22; Mary Keyes, ‘Cross- border Surrogacy Agreements’ (2012) 26 Australian Journal of Family Law 28, 29. 16 Andrea Whittaker, ‘Challenges of Medical Travel to Global Regulation: A Case Study of Reproductive Travel in Asia’ (2010) 10 Global Social Policy 396. 17 Standing Committee on Social Policy and Legal Affairs, The Parliament of the Commonwealth of Australia House of Representatives, Surrogacy Matters, Inquiry into the Regulatory and Legislative Aspects of International and Domestic Surrogacy Arrangements (2016) 21; Keyes, above n 15, 29. 18 Standing Committee on Social Policy and Legal Affairs, The Parliament of the Commonwealth of Australia House of Representatives, Surrogacy Matters, Inquiry into the Regulatory and Legislative Aspects of International and Domestic Surrogacy Arrangements (2016) 22; Emily Jackson, Jenni Millbank, Isabel Karpin et al, ‘Learning from Cross-Border Reproduction’ (2017) 25(1) Medical Law Review 23, 25. 19 Standing Committee on Social Policy and Legal Affairs, The Parliament of the Commonwealth of Australia House of Representatives, Surrogacy Matters, Inquiry into the Regulatory and Legislative Aspects of International and Domestic Surrogacy Arrangements (2016) 21. 19
In its 2013 Report on Parentage and the Family Law Act, the Family Law Council of Australia noted an increase in applications for parentage orders, declarations of parentage and leave to adopt children born through overseas commercial surrogacy arrangements.20 The report also commented on the significant increase in applications for citizenship by descent granted to children born in India whose parents were Australian citizens and noted that ‘the sharp increase in the number of applications has been attributed by some commentators to the increase in surrogacy arrangements’.21 Indeed, Jenni Millbank, in 2014, with reference to figures obtained from the Department of Immigration and Citizenship (DIAC), noted there were 519 successful citizenship applications for children born in India in the 2011-2012 period. In comparing US figures for the same period which remained stable, the three-fold figure in India suggested a link to surrogacy.22 The Family Law Council report also quoted figures from the community group, Surrogacy Australia, which estimated 315 births in India to Australian intended parents in 2011.23 It is clear that a significant number of Australian intended parents have engaged in commercial surrogacy arrangements in India.
Legal and practical problems. When intended parents engage in commercial surrogacy arrangements overseas and seek a parentage order upon returning to Australia, the courts are presented with the unenviable decision of having to decide over two competing interests — that of public policy in prohibiting commercial surrogacy and the best interests of the child. In ensuring the best interests of the child are protected by granting a parenting order, the courts impliedly condone the prohibited conduct of engaging in commercial surrogacy. The case law suggests the judiciary is not comfortable with this tension24, nor is it consistent in its approach in dealing with the issue.25
20 Family Law Council, Commonwealth of Australia, Report on Parentage and the Family Law Act (2013) 62 cites Mary Keyes and Richard Chisholm, ‘Commercial Surrogacy-Some Troubling Family Law Issues’ (2013) 27 Australian Journal of Family Law 105. 21 Family Law Council, Commonwealth of Australia, Report on Parentage and the Family Law Act (2013) 64. 22 Jenni Millbank, ‘Rethinking “Commercial” Surrogacy in Australia’ (2015) 12 Bioethical Inquiry 477, 478. 23 Family Law Council, Commonwealth of Australia, Report on Parentage and the Family Law Act (2013) 64. 24 Ellison v Karnchanit [2012] FamCA 602 [88]. 25 Dennis v Pradchaphet [2011] FamCA 123; Dudley v Chedi [2011] FamCA 502. 20
Commercial surrogacy is problematic both for intended parents and the child born as a result of the surrogacy arrangements in terms of parentage, citizenship of the child, registration of the child’s birth certificate and the associated problems which flow on as a result. Many of these issues arise because the legislation prohibiting commercial surrogacy in Australia restricts pathways that intended parents can follow in order to be able to return to Australia with their child or children and obtain parentage. Not only are there problems arising from the prohibition of commercial surrogacy, the literature suggests prohibition is one of the factors driving intended parents overseas to seek surrogacy arrangements in countries such as India.26
Policy debates and ethical tensions. Until recently, there has been a noticeable lack of explanation throughout parliamentary debates, discussions and reports on the topic of commercial surrogacy.27 Millbank attributes an unfettered connection with payment and exploitation as the deterrent for discussion:
Using payment as an absolute proxy for “exploitation” has meant there has been no identification of what these risks are and their occurrence or likelihood; nor has there been consideration of what role Australian law could play in trying to ensure that the risk of harm elsewhere is minimised.28
Commercial surrogacy has frequently aroused media scrutiny with reports of babies being abandoned or stranded in foreign countries.29 There have been suggestions, including judicial comment, that commercial surrogacy should be legalised or ‘liberalised’ in Australia.30 In April 2016, the Federal Standing Committee on Social Policy and Legal Affairs (‘the Committee’) reported that the practice of commercial
26 Anita Stuhmcke, ‘The Regulation of Commercial Surrogacy: The Wrong Answers to the Wrong Questions (2015) 23 Journal of Law and Medicine 333, 334, 337; Jenni Millbank, ‘The New Surrogacy Parentage Laws in Australia: Cautious Regulation or “25 Brick Walls”?’ (2011) 35 Melbourne University Law Review 165, 191; Keyes, above n 15, 29. 27 Millbank, above n 26, 195. 28 Ibid. 29 Standing Committee on Social Policy and Legal Affairs, The Parliament of the Commonwealth of Australia House of Representatives, Surrogacy Matters, Inquiry into the Regulatory and Legislative Aspects of International and Domestic Surrogacy Arrangements (2016) 27; Samantha Hawley, Suzanne Smith and Michael McKinnon, ‘India Surrogacy Case: Documents Show New South Wales Couple Abandoned Baby Boy Despite Warnings’, Australian Broadcasting Commission, 13 April 2015 http://www.abc.net.au/news/2015-04-13/australian-couple-abandon-baby-boy-in-india- surrogacy-case/6387206; Lindy Kerin, ‘Australian Dad Pleads for Government Help After Twin Babies Stranded in Nepal’ Australian Broadcasting Commission, 21 October 2015 http://www.abc.net.au/news/2015-10-21/australian-twin-babies-stranded-in-nepal/6871840. 30 Millbank, above n 22, 487; J McCrossin, ‘Babies Without Borders’ (2015) 2(2) Law Society Journal 40. 21
surrogacy should remain illegal so that the potential for exploitation of surrogate women and children can be reduced.31 Exploitation of surrogate women featured throughout the report as a concern for the Committee, and was integral to three out of the ten recommendations made.32 Language barriers, economic need, and poor education were factors described in the report as compromising consent by surrogate mothers to medical procedures such as multiple embryo transfers, caesarean deliveries timed to the intended parents’ travel schedule, and selective foetal reduction. These factors were specifically identified as being indicative of exploitative behaviour.33 It is important to establish if there is evidence of these occurrences, the nature of any exploitation that is found to occur, and the impact it has on the surrogate women involved. The Committee recommended ‘that the Commonwealth government conduct a review of its current laws, regulations and policies as they relate to offshore surrogacy and consider additional options to identify ways in which it may better protect the rights of birth mothers and the children they carry on behalf of Australian citizens’. It further noted that ‘Australians who broker, facilitate or engage in offshore surrogacy arrangements (should be) aware of the human rights risks those arrangements may pose’.34
Commercial surrogacy arrangements involving Indian birth mothers. Lack of regulation combined with low costs, well-educated English-speaking medical staff, and well-equipped hospitals and clinics has allowed India to become a leading provider of reproductive treatment to foreign consumers.35 Part of the Indian government’s health policy in 2002 was active encouragement of the provision of
31 Standing Committee on Social Policy and Legal Affairs, The Parliament of the Commonwealth of Australia House of Representatives, Surrogacy Matters, Inquiry into the Regulatory and Legislative Aspects of International and Domestic Surrogacy Arrangements (2016) (v). 32 Recommendation 2 proposed the development of a model national law. One of the guiding principles was ‘that sufficient regulatory protections are in place to protect the surrogate mother from exploitation’. Recommendation 7 proposed the government establish an interdepartmental task force to address four matters, one of which was to ensure birth mothers provide free and informed consent to reduce the likelihood of exploitation in off-shore commercial surrogacy arrangements. Recommendation 10 proposed that the Australian government prioritise the right of surrogate mothers to be free from exploitation in its representations to the Expert’s Group on Parentage/Surrogacy at the Permanent Bureau of The Hague Conference of Private International Law. Standing Committee on Social Policy and Legal Affairs, The Parliament of the Commonwealth of Australia House of Representatives, Surrogacy Matters, Inquiry into the Regulatory and Legislative Aspects of International and Domestic Surrogacy Arrangements (2016) xi, xiii, xv. 33 Standing Committee on Social Policy and Legal Affairs, The Parliament of the Commonwealth of Australia House of Representatives, Surrogacy Matters, Inquiry into the Regulatory and Legislative Aspects of International and Domestic Surrogacy Arrangements (2016) 27. 34 Ibid 32. 35 Pande, above n 3, 246. 22
medical services to international consumers through ‘tax and land concessions, duty and tax concessions on various imports, income tax holidays for those investing in the industry and special “M” visas for medical tourists’.36
However, clinics driven by profit in an unregulated environment raised concerns about the ethics of surrogacy in India. In 2009, the Law Commission of India published a report that addressed the rights and obligations of the parties to a surrogacy agreement and the need for regulation by legislation. ‘Exploitation of poor women in underdeveloped countries who sell their bodies for money’ was seen as an important moral issue associated with surrogacy.37 The regulation of commercial surrogacy in India is currently under review. The Surrogacy (Regulation) Bill 2016 has been approved by Parliament but is currently being reassessed. The Bill aims to prohibit foreigners from engaging in commercial surrogacy in India. At the time of writing, it has not passed as law.38
Because Australian intended parents have travelled to India to engage in commercial surrogacy, the issue of exploitation of Indian surrogate women is important and relevant to the Australian landscape of commercial surrogacy. India has been selected as the jurisdictional focus for this thesis for two reasons. First, it has become a popular surrogacy destination for Australian intended parents. Second, it is one of the few jurisdictions where there is empirical evidence of the lived experiences of surrogate women. It therefore provides a fertile research landscape. In addition, analysis of the lived experiences of commercial surrogate women in India may apply more generally across other destinations adding further relevance to this thesis.
The question of exploitation. The question of whether birth mothers in commercial surrogacy arrangements are exploited is an important and topical issue and has been the subject of recent government committee reports and reviews. The terms of reference of the Commonwealth government’s 2016 report into the regulatory and legislative aspects of international and domestic surrogacy arrangements included Australia’s international obligations in the context of issues regarding informed
36 I Glenn Cohen, Patients with Passports (Oxford University Press, 2015) 18. 37 Law Reform Commission of India, Need for Legislation to Regulate Assisted Reproductive Technology Clinics as well as Rights and Obligations of Parties to a Surrogacy, Report No 228 (2009) 11. 38 Rituparna Bhattacharyya, ‘Draft Surrogacy (Regulation) Bill 2016: Rhetoric or Surrogate-centric’ (2016) 4(2) Space and Culture India 9, 15, 16. The information contained in this thesis is up to date as at 1 September 2017. 23
consent, exploitation, compensatory payments and rights and protections of all parties involved in commercial surrogacy arrangements.39 One of the reasons provided by the Committee for its recommendation to continue the prohibition of commercial surrogacy in Australia was the potential for exploitation of surrogate women. In 2013, the Family Law Council of Australia noted in its Report on Parentage and the Family Law Act that a number of submissions expressed concern that commercial surrogacy exploited women who act as birth mothers.40
As will be shown in this thesis, the claimed exploitation of surrogate women is a common and prominent theme in parliamentary debates, legislative reviews and numerous other government reports and inquiries which have taken place in the lead up to, and following the enactment of, surrogacy legislation throughout Australia. Exploitation of surrogate women has been expressed as a real and significant concern in Parliament and by the community,41 and has been relied on conceptually, empirically and ethically as a cornerstone of the Australian legal prohibitions. However, several factors suggest this reliance on exploitation as the value underpinning the legal context warrants exploration. Legally and practically, many Australians openly resist the prohibition by engaging in overseas commercial surrogacy arrangements but, the prohibition may present problematic outcomes. Theoretically, the dependence on the claim of exploitation may or may not be strong. Empirically, there may or may not be robust evidence demonstrating the nature and extent of exploitation of commercial surrogate women. There are important interests at stake, including the welfare of the surrogate women, the intended parents who may engage in illegal behaviour and the children born as a result of commercial surrogacy arrangements; and under-explored questions that warrant examination to determine whether and how surrogate women may be being exploited and, if they
39 Standing Committee on Social Policy and Legal Affairs, The Parliament of the Commonwealth of Australia House of Representatives, Surrogacy Matters, Inquiry into the Regulatory and Legislative Aspects of International and Domestic Surrogacy Arrangements (April 2016). http://www.aph.gov.au/Parliamentary_Business/Committees/House/Social_Policy_and_Legal_Affairs /Inquiry_into_surrogacy. 40 Family Law Council of Australia, Report on Parentage and the Family Law Act (2013) 82-83. 41 Standing Committee on Social Policy and Legal Affairs, The Parliament of the Commonwealth of Australia House of Representatives, Surrogacy Matters, Inquiry into the Regulatory and Legislative Aspects of International and Domestic Surrogacy Arrangements (April 2016) 28 [1.98]
are, the nature and extent of consequent harm, and the significance of this for normative debate about the justifiability of the current legal prohibition.
II LITERATURE REVIEW: GAPS IN LITERATURE, AND ORIGINAL CONTRIBUTIONS TO KNOWLEDGE
A The Law of Commercial Surrogacy in Australia: Historical Development The development of surrogacy legislation in Australia has been protracted. Millbank describes two waves of reform:42 the first in the mid-1980s to early 1990s when the majority of states and the Australian Capital Territory passed legislation which impacted on surrogacy both directly and indirectly. Surrogacy was directly prohibited in Queensland and Tasmania,43 while South Australia, Western Australia and Victoria had legislation governing assisted reproductive technology,44 some of which affected the ability to practice surrogacy. For example, the legislation in Victoria required women who received fertility treatment to be either infertile or likely to transmit a genetic abnormality or disease to any child she carried. Therefore, a necessarily fertile surrogate woman was not eligible to undergo assisted reproductive treatment procedures. The second wave of reform to which Millbank refers occurred between 2004–2012 which culminated in all jurisdictions except the Northern Territory legislating to permit altruistic surrogacy with facilitation to transfer parentage to the intended parents, and prohibiting commercial surrogacy. The circumstances surrounding the offence of commercial surrogacy and its extra- territorial application are explored in this thesis.
Both Millbank and Stuhmcke explored surrogacy legislation in the context of its prohibition in Australia.45 Stuhmcke argues that a review of the criminal penalties
42 Millbank, above n 26, 170-6. 43 Surrogate Parenthood Act 1988 (Qld) s 3 (repealed); Surrogacy Contracts Act 1993 (Tas) s 4 (repealed). 44 Reproductive Technology Act 1988 (SA) (repealed); Human Reproductive Technology Act 1991 (WA). Section 23 placed doubt on whether ART treatment could apply to a surrogacy arrangement due to the requirement that a ‘couple’ being treated must be married; Infertility Treatment Act 1995 (Vic) s 8(3)(a)(b); (repealed). Anita Stuhmcke, ‘Looking Backwards, Looking Forwards: Judicial and Legislative Trends in the Regulation of Surrogate Motherhood in the UK and Australia’ (2004) 18 Australian Journal of Family Law 13. 45 Millbank, ‘Rethinking “Commercial” Surrogacy in Australia’, above n 22, 477; Millbank, ‘The New Surrogacy Parentage Laws in Australia: Cautious Regulation or “25 Brick Walls”?’, above n 26, 170-77; Anita Stuhmcke, ‘Surrogate Motherhood: The Legal Position in Australia’ (1994) 2 Journal of Law and Medicine 116; Anita Stuhmcke, ‘For Love or Money: The Legal Regulation of Surrogate Motherhood’ (1996) Murdoch University Electronic Journal of Law 6 [11]-[32]; Stuhmcke, ‘Looking Backwards, Looking Forwards: Judicial and Legislative Trends in the Regulation of Surrogate 25
relating to commercial surrogacy in Australia is necessary.46 There is significant contribution to scholarly research on surrogacy legislation in Australia generally.47 However, a comprehensive up-to-date synthesis of the law is required, especially given recent government inquiries and significant case law developments in September 2017.48
This thesis adds to existing research by providing an updated detailed examination and comparison of the specific laws relating to the prohibition of commercial surrogacy in each Australian jurisdiction.
B Legal and Practical Problems Presented by Commercial Surrogacy Researchers including Stuhmcke, Millbank, Jackson, Keyes and Chisholm have identified legal problems and analysed issues surrounding overseas commercial surrogacy arrangements entered into by Australian intended parents, including parentage, citizenship and criminality.49 Despite the legislative prohibition in some jurisdictions and the practical problems surrounding parentage and citizenship, Australians continue to engage in overseas commercial surrogacy arrangements.50
Motherhood in the UK and Australia’, above n 44, 13; Anita Stuhmcke, ‘The Criminal Act of Commercial Surrogacy in Australia: A Call for Review’ (2011) 18(3) Journal of Law and Medicine 601. 46 Stuhmcke, ‘The Regulation of Commercial Surrogacy: The Wrong Answers to the Wrong Questions’ above n 26; Stuhmcke, ‘The Criminal Act of Commercial Surrogacy in Australia – A Call for Review’, above n 45, 601. 47 Tammy Johnson, ‘Queensland’s Proposed Surrogacy Legislation: An Opportunity for National Reform’ (2010) 17 (4) Journal of Law and Medicine 617; Catherine Brown, Lindy Willmott, Ben White, ‘Surrogacy in Queensland: Should Altruism be a Crime’ (2008) Bond Law Review 20; T Johnson, ‘Through the Looking Glass: A Proposal for National Reform of Australia’s Surrogacy Legislation’ in P Gerber and K O’Byrne (eds), Surrogacy, Law and Human Rights (Ashgate Publishing Ltd, 2015) 31; Louise Johnson, ‘Regulation of Assisted Reproductive Treatment (ART) in Australia and Current Ethical Issues’ (2014) 140 (1) Indian Journal of Medical Research 9; Ainsley J Newson, ‘Compensated Transnational Surrogacy in Australia: Time for a Comprehensive Review’ (2016) 204(1) Medical Journal of Australia 33; Ronli Sifris, Karinne Ludlow and Adiva Sifris, ‘Commercial Surrogacy: What Role for Law in Australia’ (2015) 23 Journal of Law and Medicine 275. 48 Standing Committee on Social Policy and Legal Affairs, The Parliament of the Commonwealth of Australia House of Representatives, Surrogacy Matters, Inquiry into the Regulatory and Legislative Aspects on International and Domestic Surrogacy Arrangements (2016); Bernieres & Dhopal [2017] FamCAFC 180. 49 Stuhmcke, ‘The Criminal Act of Commercial Surrogacy in Australia: A Call for Review’ above n 45; Stuhmcke, ‘The Regulation of Commercial Surrogacy: The Wrong Answers to the Wrong Questions’, above n 26; Jackson et al, above n 18, 35-36; Millbank, above n 26, 165; Jenni Millbank, ‘Resolving the Dilemma of Legal Parentage for Australians Engaged in International Surrogacy (2013) 27(2) Australian Journal of Family Law 135; Keyes and Chisolm, above n 20; Keyes, above n 15; Jenni Millbank, ‘Recognition of Lesbian and Gay Families in Australian Law – Part Two – Children’ (2006) 34 Federal Law Review 205. 50 Standing Committee on Social Policy and Legal Affairs, The Parliament of the Commonwealth of Australia House of Representatives, Surrogacy Matters, Inquiry into the Regulatory and Legislative Aspects of International and Domestic Surrogacy Arrangements (2016) 31; Martyn A Stafford-Bell, 26
The courts essentially condone this behaviour by granting parenting orders to intended parents upon their return to Australia, as that is in the best interests of the child born as a result of these arrangements. However, there is inconsistency in the minutia of the decisions creating uncertainty for the intended parents and child. This thesis highlights these problems for law and practice.
In Australia, the woman who gives birth to a child and her partner, if she has one, are the child’s parents.51 Therefore, when a child is born as a result of a surrogacy arrangement, the surrogate mother and her partner, if she has one, are the child’s parents until such time as a transfer of parentage can be made. Much of the scholarly research concerning parentage in surrogacy arrangements has been driven by the case law which followed legislative amendment by the states and the Australian Capital Territory in the early to mid-2000s in conjunction with the more recent development of global reproductive travel. When Australian intended parents enter into commercial surrogacy arrangements state legislation does not facilitate parentage orders to enable the transfer of parentage from the surrogate mother (and her partner, if she has one) to the intended parents. Adoption procedures and parenting orders pursuant to the Family Law Act 1975 (Cth) are the potential avenues available to these intended parents.52 Questions have been raised about the adequacy of parenting orders, the difficulties associated with seeking adoption orders and the difficult position the judiciary is placed in by having to contend with the competing interests of the best interests of the child and, in some circumstances, the illegal conduct undertaken by the intended parents.53 Millbank and Stuhmcke note that a lack of discussion of commercial surrogacy at a political level resulted in insufficient
Sam G Everingham and Karin Hammarberg, ‘Outcomes of Surrogacy Undertaken by Australians Overseas’ (2014) 201 Medical Journal of Australia 330. 51 Family Law Act 1975 (Cth) ss 69P, 69Q. 52 Ellison & Karnchanit [2012] Fam LR 33 [93]; Re Michael: Surrogacy Arrangements [2009] 41 Fam LR 694; Re W Adoption (1998) 23 Fam LR 538; Millbank, above n 26, 175; Keyes and Chisolm, above n 20, 114. 53 Keyes, above n 15, 28; Millbank, above n 26, 165; Olivia Rundle and Samantha Hardy, ‘Australian Birth Certificates: The best interests of no one at all’ (2012) 26 Australian Journal of Family Law, 116; Keyes and Chisolm, above n 20, 105; Millbank, ‘Recognition of Lesbian and Gay Families in Australian Law – Part 2’, above n 49, 205. 27
consideration being given to the problem of parentage of children born as a result of commercial surrogacy arrangements.54
As international travel for reproductive health continues to grow, so too does the body of literature on parentage and the associated complications surrounding citizenship and the issue of birth certificates, both of which impact on the child, the surrogate mother and the intended parents.55 Keyes suggests that the criminalisation of commercial surrogacy has driven surrogacy off-shore and that this ‘should have been anticipated and addressed directly in the design’ of the surrogacy legislation’.56
This thesis analyses in depth the legal and practical problems associated with commercial surrogacy from the perspective of Australian intended parents to identify the difficulties which arise as a result of prohibiting commercial surrogacy.
C The Values Underpinning the Legislative Prohibition A number of values and motivations that have contributed to the prohibition of commercial surrogacy are identified in the secondary legal material. The literature makes reference to surrogacy generally and, more specifically, commercial surrogacy in law reform commission reports,57 government committees and inquiries58 and, to some extent, parliamentary debates.59 The values most frequently raised include exploitation of surrogate women, commodification of children and commercialisation of reproduction. Other concerns relate to commercial profit from reproductive capacities, trading women and children, and challenging concepts of family and marriage.
There are gaps in the body of research about the policy basis of the legislative prohibition. Stuhmcke explored both primary and secondary material in 1996,60
54 Jenni Millbank, ‘From Alice and Evelyn to Isabella: Exploring the Narratives and Norms of “New” Surrogacy in Australia’, (2012) 21(1) Griffith Law Review 101; Millbank, above n 26, 165; Stuhmcke, ‘The Criminal Act of Commercial Surrogacy in Australia: A call for Review’, above n 45, 601. 55 Millbank, above n 22, 477; Millbank, above n 26, 165; Rundle and Hardy, above n 53, 116. 56 Keyes, above n 15, 45; Stuhmcke, above n 26, 334. 57 Lindy Willmott, ‘Surrogacy: ART’s Forgotten Child’ (2006) 29(2) University of New South Wales Law Journal 227; Stuhmcke, above n 45, 601. 58 Watson Janu, above n 12, 79; Stuhmcke, ‘Surrogate Motherhood – The Legal Position in Australia’, above n 45, 117; Stuhmcke, ‘Looking Backwards, Looking Forwards: Judicial and Legislative Trends in the Regulation of Surrogate Motherhood in the UK and Australia’, above n 44, 14. 59 Stuhmcke, ‘For Love or Money: The Legal Regulation of Surrogate Motherhood’, above n 45, [23]. 60 Ibid. 28
2004,61 201162 and 2015.63 Millbank also engaged with this research in the context of law reform relating to the transfer of parentage.64 This thesis will update research about the legislative frameworks regulating commercial surrogacy in Australia by engagement with further and more recent reviews and inquiries. Exploitation of surrogate women is a dominant value that has influenced Parliament’s decision to continue the prohibition of commercial surrogacy and, on this basis, is selected as the value explored in this thesis.
There is ongoing debate about the prohibition of commercial surrogacy in Australia. A Commonwealth government inquiry undertaken in 2016 found the prohibition should continue.65 Submissions from the public indicate that there is both opposition and support for this view. It is important to ascertain whether the position taken by Parliament is justified, and to remain updated with current policies. While no thesis can resolve the question entirely, this thesis will contribute to the debate of whether the prohibition of commercial surrogacy in Australia is justified and should continue.
There is a gap in knowledge relating to policy analysis of commercial surrogacy in terms of updated, detailed research. The landscape of surrogacy has changed significantly since previous research in this area was undertaken in the 1990s and 2000s. There is literature critiquing the prohibition of commercial surrogacy and noting its absence from public discussion.66 However, a deep doctrinal analysis of the current attitudes, values and motivations which have created a politically accepted negative attitude towards commercial surrogacy has not been carried out.
61 Stuhmcke, ‘Looking Backwards, Looking Forwards: Judicial and Legislative Trends in the Regulation of Surrogate Motherhood in the UK and Australia’, above n 44, 13; 62 Stuhmcke, ‘The Criminal Act of Commercial Surrogacy in Australia: A Call for Review’, above n 45, 601. 63 Stuhmcke, above n 26, 333. 64 Millbank, ‘The New Surrogacy Parenting Laws in Australia: Cautious Regulation or “25 Brick Walls”?’, above n 26, 165; Millbank, ‘From Alice to Evelyn to Isabella: Exploring the Narratives and Norms of ‘New’ Surrogacy in Australia’, above n 54, 101. 65 Standing Committee on Social Policy and Legal Affairs, The Parliament of the Commonwealth of Australia House of Representatives, Surrogacy Matters, Inquiry into the Regulatory and Legislative Aspects of International and Domestic Surrogacy Arrangements (April 2016) xi, 6. 66 Stuhmcke, above n 45, 604; Merryn Elizabeth Ekberg, ‘Ethical, Legal and Social Issues to Consider When Designing A Surrogacy Law’ (2014) Journal of Law and Medicine 728, 730, 732–735; Millbank, ‘The New Surrogacy Parenting Laws in Australia: Cautious Regulation or “25 Brick Walls”?’, above n 26, 165; Millbank, ‘Rethinking “Commercial” Surrogacy in Australia’, above n 22, 477. 29
At some point in the history of the surrogacy debate,67 the various state and territory parliaments decided to prohibit commercial surrogacy; and over time the prohibition has been preserved for various reasons. This research will explore the values, motivations and influences which underpin those decisions to add to the debate of whether the prohibition of commercial surrogacy is justified.
Exploitation of surrogate women is the selected value explored in this thesis because it is frequently raised as a concern in the context of commercial surrogacy, particularly in the most recent Parliamentary reports. This thesis will establish whether exploitation of surrogate women is justified as a reason to prohibit commercial surrogacy in Australia.
D Mill’s Harm Principle and the Context of Commercial Surrogacy The classical liberal theorist, John Stuart Mill asserted that people should be free to do as they please, regardless of whether it is unpopular, distasteful or even abhorrent, provided it does not harm others. According to Mill, if there is no harm to others, there is no ground for interference by the state, and people are free to pursue their own happiness.68 Mill’s harm principle has been selected as the normative concept for the purpose of determining whether or not the presence of exploitation in commercial surrogacy arrangements, if it exists, causes harm to the surrogate mother. The harm principle states that:
the only purpose for which power can be rightfully exercised over any member of a civilized community against his will is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant … The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute.69
The harm principle has been selected because it defines liberal ideology in terms that can be applied to the surrogacy landscape. The right to procreate is fundamental.70
67 As far back as 1986–1988, Queensland, Victoria and South Australia had legislation prohibiting commercial surrogacy. Stuhmcke, ‘The Criminal Act of Commercial Surrogacy in Australia: A Call for Review’, above n 45, 602. 68 John Stuart Mill, ‘On Liberty’ in Albert William Levi (ed), The Six Great Humanistic Essays of John Stuart Mill (Washington Square Press, 1963). 69 Ibid 135; J C Rees, ‘A Re-reading of Mill on Liberty’ in John Gray and G W Smith (eds), J.S. Mill on Liberty in Focus (Routledge, 1991) 169, 171. 70 Irit Rosenblum, ‘Being Fruitful and Multiplying: Legal, Philosophical, Religious, and Medical Perspectives on Assisted Reproductive Technologies in Israel and Internationally’ (2010) 36 Suffolk 30
However, in today’s medically advanced society with the expansion of in vitro fertilisation (IVF), reproduction has become a complex issue.71 Commercial surrogacy is at the ethical heart of this complexity and challenges legislators, the judiciary and citizens. It distorts traditional family values, complicates traditional family characteristics and places the traditionally private nature of reproduction in the global arena.72 Mill’s harm principle is an appropriate framework to apply in a democratic liberal society facing a non-traditional, modern reproductive technology employed by a minority of citizens, and which has the capacity to change the popular interpretation of ‘family’. The condition of exploitation is critiqued against the normative framework of Mill’s harm principle to add to the debate of whether exploitation of surrogate women is justified as a reason to prohibit commercial surrogacy in Australia.
Regarding Mill and the use of the harm principle, libertarians such as John Robertson have considered it in the context of reproduction. Robertson asserts that the only reason the state should interfere with reproductive liberty, including liberty surrounding reproductive technology, is to prevent harm to others.73 The notion of procreative liberty, which Robertson describes as ‘the freedom to decide whether or not to have offspring and to control the use of one’s reproductive capacity’,74 suggests that decisions relating to reproduction are best left to the individuals concerned and that it is wrong to force or prevent someone from having a child if it is not their wish.75 In the context of reproductive technology, Robertson stresses the need for a standard or method that can be used to balance reproductive choice with the competing interests that it affects, thereby providing consistency in resolving conflicts and controversies that arise in relation to these technologies. Robertson finds that standard in procreative liberty and proposes that:
Transnational Law Review 627, 628; Amel Alghrani and John Harris, ‘Reproductive Liberty: Should the Foundation of Families be Regulated?’ (2006) 18(2) Child and Family Law Quarterly 191, 191. 71 Rosenblum, above n 70, 628. 72 Abrams, above note 11, 180. 73 John Robertson, Children of Choice: Freedom and the New Reproductive Technologies (Princeton University Press, 1994) 16, referred to in Stephen Wilkinson, Choosing Tomorrow’s Children: The Ethics of Selective Reproduction (Oxford University Press, 2010) 11. 74 Ibid 16. 75 Robert Sparrow, ‘Therapeutic Cloning and Reproductive Liberty’ (2009) 34 Journal of Medicine and Philosophy 102, 104. 31
procreative liberty be given presumptive priority in all conflicts, with the burden on opponents of any particular technique to show that harmful effects from its use justify limiting procreative choice.76
Robertson’s views align with Mill’s harm principle, which asserts ‘the only purpose for which power can be rightfully exercised over any member of a civilized community against his will is to prevent harm to others’.
Feinberg, well known for his commentary on the harm principle, describes it as ‘valid legitimisation in support of the prohibition of criminal conduct’.77 He notes:
it is legitimate for the state to prohibit conduct that causes serious private harm, or the unreasonable risk of such harm...78
There is further scholarly research which has applied the harm principle in the context of health law and specifically to reproductive technologies.79 Carson Strong has applied the harm principle in the context of a ‘no-harm argument’ used to support the creation of non-traditional families by methods such as ovum donation for post-menopausal women and post-mortem artificial insemination, and children negligently created with serious genetic diseases.80 Douglas Diekema argues that the harm principle provides a more appropriate threshold than the ‘best interests’ test for challenging parental refusal to provide consent to medical treatment for children;81 and Colin Gavaghan has applied the harm principle in the context of pre- implantation genetic screening.82
As suggested, the utilitarian nature of the harm principle promotes freedom through maximising the interest of general happiness for the greatest number of people. Translating the principle to the concept of surrogacy raises challenging issues as the interests of the surrogate mother and the other parties to the surrogacy arrangement
76 Robertson, above n 73, 16. 77 Joel Feinberg, ‘Wrongful Life and the Counterfactual Element in Harming’ (1986) 4(1) Social Philosophy and Policy 145, 145. 78 Joel Feinberg, Harm to Others, The Moral Limits of the Criminal Law (Oxford University Press, 1984) 11. 79 Carson Strong, ‘Harming by Conceiving: A Review of Misconceptions and a New Analysis’ (2005) 30 Journal of Medicine and Philosophy 491; Alghrani and Harris, above n 70, 191; Douglas Diekema, ‘Parental Refusals of Medical Treatment: The Harm Principle as Threshold for State Intervention (2004) 25 Theoretical Medicine 243; Colin Gavaghan, ‘Deregulating the Genetic Supermarket: Preimplantation Screening, Future People, and the Harm Principle (2000) 9 Cambridge Quarterly of Healthcare Ethics 242. 80 Strong, above n 79, 491. 81 Diekema, above n 79, 243. 82 Gavaghan, above n 79, 242. 32
are not necessarily compatible. This thesis analyses the harm principle and establishes parameters for measurement so that it can be utilised to evaluate harm caused as a result of exploitation in the context of commercial surrogacy in India, thereby making a significant and original contribution for further debate.
E Exploitation and Commercial Surrogacy Exploitation is a complex concept, and is not necessarily morally wrong or sufficient to attract legislative prohibition.83 For example, mutual exploitation occurs where both parties receive an advantage from the transaction.84 Although the advantage to one party might be greater, prohibition of the activity could be detrimental to both.85 However, if an exploitative transaction causes harm or unreasonable risk of harm, prohibiting such transactions is potentially justified.86 Harmful exploitation occurs if, as a result of the exploitative transaction, the person being exploited suffers harm as measured against an appropriate baseline or threshold.87 The nature of the exploitation depends on the circumstances in which it is posited.
Both Wood and Wertheimer argue that the meaning of the term ‘exploitation’ is not inherently immoral and unjust and that the transaction in question must be analysed to determine if it is wrongful and unethical.88 Some forms of exploitation are accepted by society. For example, exploitation occurs daily in business activity where one party takes advantage of the other to achieve a desired outcome. Further, one can ‘exploit’ good fortune to one’s advantage. Clearly, the term as used in parliamentary debate and discussion in the context of surrogate women in poor countries is given a pejorative interpretation. Feinberg suggests that adding the
83 Allen W Wood, ‘Exploitation’ (1995) Social Philosophy and Policy Foundation 136, 146. 84 Alan Wertheimer, ‘Exploitation and Commercial Surrogacy’ (1996–1997) 74(4) Denver University Law Review, 1215; Wood, above n 83, 148; Stephen Wilkinson, ‘The Exploitation Argument Against Commercial Surrogacy’ (2003) 17(2) Bioethics 169, 173-4; G D K Crozier, ‘Too Blunt a Tool: A Case for Subsuming Analyses of Exploitation in Transnational Gestational Surrogacy under a Justice or Human Rights Framework (2014) 41(5) The American Journal of Bioethics 38. 85 Wood, above n 83, 149. Alan Wertheimer goes further by asserting that exploited parties typically benefit more than their exploiters. Alan Wertheimer, ‘Two Questions about Surrogacy and Exploitation’ (1992) 21(3) Philosophy and Public Affairs 211, 223; Sharon Bassan, ‘Context Matters! Why Terms of Transaction as Well as Autonomy Should Be Analysed in the Context of Low-Income Countries’ (2014) 14(5) The American Journal of Bioethics 48, 49. 86 Feinberg, above n 78, 11. 87 Alan Wertheimer, Exploitation (Princeton University Press, 2015) 207. 88 Allen Wood, ‘Unjust Exploitation’ (2016) 54 The Southern Journal of Philosophy 92; Wertheimer, above n 87, 214; Wood, ‘Exploitation’, above n 83, 137. 33
element of ‘wrongfulness’89 brings exploitation within the parameters of unacceptable behaviour. However, Wood’s concept of exploitation centres on vulnerability. He asserts exploitation is morally wrong even when voluntary and beneficial to the exploitee because the exploiter benefits from the exploitee’s vulnerability.90 Ballantyne acknowledges vulnerability and inequality of bargaining power as necessary elements of exploitation whereas conditions of defective consent and unfair distribution of benefits constitute Wilkinson’s exploitation concept. There is inconsistency throughout the literature surrounding the definitional attributes of exploitation.
Wertheimer and Wilkinson have explored the concept of exploitation in the context of commercial surrogacy. Wilkinson framed his research around the two key concepts of the exploited person receiving low-level benefit or high-level harm, and defective consent, and seeks to find a resolution around how to best respond to the exploitative traits of commercial surrogacy in India. This thesis does not attempt to find a solution to counteract exploitation within the Indian commercial surrogacy industry, but rather conducts an exploration to determine whether there is evidence of its presence. Other researchers, including Ballantyne, Kirby, Panitch, Tobin and Cattapan have contributed to the discussion of what exploitation means in the context of commercial surrogacy.91 There is no consistent definition or agreement surrounding the necessary elements that constitute exploitation in this context.
There is significant concern in parliamentary debate and inquiry in Australia that commercial surrogacy exploits surrogate women in poor countries, thereby supporting its continued prohibition. However, what is meant by the term
89 Joel Feinberg, Harmless Wrongdoing, The Moral Limits of the Criminal Law (Volume 4) (Oxford University Press, 1990) 199; Wood, above n 83, 148, 153: although Wood argues that ‘those who help people in a position of weakness typically exploit them as well …whether they make just profits, unjust profits, or even no profits at all, as long as they also use the vulnerability of the recipients to further some end of their own other than the helping itself’. 90 Wood, above n 83, 151. 91 Stephen Wilkinson, ‘Exploitation in International Paid Surrogacy Arrangements’ (2016) 33(2) Journal of Applied Philosophy 125; Angela Ballantyne, ‘Exploitation in Cross-border Reproductive Care’ (2014) 7(2) International Journal of Feminist Approaches to Bioethics, 75, 87; Jeffrey Kirby, ‘Transnational Gestational Surrogacy: Does it have to be Exploitative?’ (2014) 14(5) The American Journal of Bioethics 24; John Tobin, ‘To Prohibit or Permit: What is the (Human) Rights response to the Practice of International Commercial Surrogacy? (2014) 63(2) International and Comparative Law Quarterly 317; Alana Cattapan, ‘Risky Business: Surrogacy, Egg Donation, and the Politics of Exploitation’ (2014) 29(3) Canadian Journal of Law and Society 316; Vida Panitch, ‘Global Surrogacy: Exploitation to Empowerment’ (2013) 9(3) Journal of Global Ethics 329; Wilkinson, above n 84, 169. 34
‘exploitation’ and whether is actually occurs has been assumed rather than explored. A regulatory framework requires robust justification.
This thesis adds an original element to the existing research by undertaking doctrinal research and thematic analysis of the theories surrounding the contested concept of exploitation to identify three key concepts most frequently considered in the scholarly literature as being necessarily present in an exploitative transaction in the context of commercial surrogacy: taking advantage of a vulnerability, a defect in consent, and an unfair distribution of benefits.
Furthermore, this thesis tests the credibility of the assertion that commercial surrogacy exploits surrogate women, both in terms of what the term exploitation means and whether it is occurring. By synthesising the concept of exploitation to identify how it can be employed in the context of commercial surrogacy in India, this thesis adds to knowledge by drawing on the three key concepts necessarily present in an exploitative transaction in the pejorative sense. In doing so, a strong interpretation of exploitation is adopted; one that envelops the concepts of exploitation and takes into account the most common assertions of theorists who have studied the condition. This ensures that the condition of exploitation — and the potential negative impact of commercial surrogacy on Indian surrogate women — is accurately and fairly represented and provides a robust and acceptable standard to determine the presence or otherwise of the condition. It lays the foundation for further analysis, drawing on the available empirical research, of whether exploitation is occurring in the lived experiences of Indian surrogate women.
F The Experience of Commercial Surrogate Women in India There is a considerable body of scholarly research asserting that commercial surrogacy exploits surrogate women.92 However, there are also arguments that such
92 Sreeja Jaiswal, ‘Commercial Surrogacy in India: An Ethical Assessment of Existing Legal Scenario from the Perspective of Women’s Autonomy and Reproductive Rights’ (2012) 16(1) Gender, Technology and Development 1-28; Alison Bailey, ‘Reconceiving Surrogacy: Toward a Reproductive Justice Account of Indian Surrogacy’ (2011) 26(4) Hypatia 715 (arguments for and against exploitation 724, 725 and 733); Pamela Laufer-Ukeles, ‘Mothering for Money: Regulating Commercial Surrogacy’ (2013) 88 Indiana Law Journal 1223, 1226, 1227; Jonathan W Knoche, ‘Health Concerns and Ethical Considerations Regarding International Surrogacy (2014) 126 International Journal of Gynecology and Obstetrics 183-186; Panitch, above n 91, 329-343; Sheela Saravanan, ‘An Ethnomethodological Approach to Examine Exploitation in the Context of Capacity, Trust and Experience of Commercial Surrogacy in India’ (2013) 8(10) Philosophy, Ethics and Humanities in Medicine; Francoise Baylis, ’Transnational Commercial Contract Pregnancy in India’ 35
arrangements should not be prohibited on the basis of exploitation,93 and that ‘paid surrogacy is no worse than many other exploitative commercial transactions which take place against a backdrop of global inequality and constrained options’.94 The empirical research embodying the lived experiences of surrogate women in India is limited, with nine research teams dominating this sphere. This thesis conducts doctrinal analysis of each empirical study encompassing 11 peer reviewed articles, 1 book and reports by 2 non-government organisations, to analyse the experiences of Indian surrogate women and determine whether there is evidence of exploitation and how it is revealed.95 In-depth analysis and synthesis of all available empirical data surrounding the lived experiences of Indian surrogate women has not been carried out before. Researchers including Wilkinson, Bromfield and Rotabi, Kirby and Bailey96 have drawn upon fragments of empirical research to illustrate particular viewpoints. However, the literature to date has not been aggregated and analysed within the specific context of exploitation of commercial surrogate women in India.
in F Baylis and C McLeod (eds) Family-making: Contemporary Ethical Challenges (Oxford University Press, 2014) 26. 93 Wilkinson, above n 91, 125; Tobin, above n 91, 344-347; Hugh V McLachlan and J K Swales, ‘Exploitation and Commercial Surrogate Motherhood’ (2001) 7(1) Exploitation and Commercial Surrogate Motherhood, Human Reproduction & Genetic Ethics 8. Examples where the matter is discussed but no clear conclusion reached include: Nicole F Bromfield and Karen Smith Rotabi, ‘Global Surrogacy, Exploitation, Human Rights and International Private Law: A Pragmatic Stance and Policy Recommendations’ (2014) 1(3) Global Society Welfare 123; Cattapan, above n 91, 361. 94 Wilkinson, above n 91, 141. 95 Amrita Pande, ‘Not an “Angel” Not a “Whore”: Surrogates as “Dirty” Workers in India’ (2009) 16 Indian Journal of Gender Studies 141; Amrita Pande, ‘“At Least I am not Sleeping with anyone”: Resisting the Stigma of Commercial Surrogacy in India’ (2010) 36(2) ProQuest Central 292; Amrita Pande, ‘Commercial Surrogacy in India: Manufacturing a Perfect Mother Worker’ (2010) 35(4) Signs 969; Amrita Pande, ‘“It May be her Eggs But it’s my Blood”: Surrogates and Everyday Forms of Kinship in India’ (2009) 32 Qualitative Sociology 37; Pande, ‘Global Reproductive Inequalities, Neo- Eugenics and Commercial Surrogacy in India’, above n 3, 246; Sharvari Karandikar et al, ‘Economic Necessity or Noble Cause? A Qualitative Study Exploring Motivations for Gestational Surrogacy in Gujarat, India’ (2014) 29 Affilia 224; Saravanan, ‘above n 92; Malene Tanderup et al, ‘Reproductive Ethics in Commercial Surrogacy: Decision-making in IVF Clinics in New Delhi, India’ (2015) 12(3) Journal of Bioethical Inquiry 491; Malene Tanderup et al, ‘Informed Consent in Medical Decision- making in Commercial Gestational Surrogacy: A Mixed Methods Study in New Delhi, India’ (2015) 94 Nordic Federation of Societies of Obstetrics and Gynecology 465; Kalindi Vora, ‘Indian Transnational Surrogacy and the Commodification of Vital Energy’ (2009) 28 Subjectivity 266; Diksha Munjal-Shankar, ‘Autonomy, Choices and Consent in Commercial Surrogacy: Viewing Through the Indian Lens’ (2015) 7(4) Asian Bioethics Review, 380; Sharmila Rudrappa, Discounted Life: The Price of Global Surrogacy in India (New York University Press, 2015); Centre for Social Research, Surrogate Motherhood-Ethical or Commercial (Delhi and Mumbai) Final Report (undated); Centre for Social Research, Surrogate Motherhood — Ethical or Commercial (Anand, Surat and Jamnagar) (undated); Sama-Resource Group for Women and Health, Birthing a Market A Study on Commercial Surrogacy (2012). 96 Wilkinson, above n 91, 129-131; Bromfield and Rotabi, above n 93, 126; Kirby, above n 91; Bailey, above n 92, 721–726. 36
This thesis adds to knowledge by garnering all the currently available empirical research, so that the varied experiences of the women — the subject of the research — can be analysed. Evidence of the three key concepts of exploitation are isolated and synthesised, and an objective conclusion drawn as to whether there is evidence that Indian surrogate women are exploited, thereby making a significant contribution to the literature.
G Applying Mill’s Harm Principle and the Concept of Exploitation to this Context This thesis creatively synthesises both the harm principle and the concept of exploitation, and brings these concepts to bear on the experience of commercial surrogate women in India, informed by the social science evidence about their experience. While the harm principle has been noted as a framework which could justify restrictions on reproduction, the principle, as espoused by Mill, has not been analysed and applied in the context of commercial surrogate women in India.
Anita Stuhmcke noted the harm principle as a framework to justify criminal restrictions on procreative liberty, commenting that there is no empirical evidence of surrogate women being harmed. Stuhmcke’s research focussed on the global, social and technological environment, community views, and ambiguity and inconsistency of the penalties throughout Australia. She was not specifically focussed on the concept of the harm principle or Indian surrogate women.97 Marcus Agnafors explored aspects of harm in the context of children born as a result of surrogacy arrangements but has not undertaken a detailed analysis of the harm principle, nor applied it to surrogate women, specifically those residing in India.98 Similarly, in 2009, Peter Gaffney asserted that harm-based arguments in support of the prohibition of commercial surrogacy in Australia are unconvincing.99 However, this opinion was based on harm to Australian surrogate women and does not relate to overseas commercial surrogacy. Furthermore, this research relies upon analytic philosophy rather than empirical research to support its findings. Finally, Gaffney’s research was
97 Stuhmcke, above n 45, 607, 608-9. Stephen Wilkinson analysed exploitation in the context of commercial surrogacy arrangements but he has not adopted Mill’s harm principle as his theoretical framework, nor is his research confined to the Australian context. Wilkinson, ‘Exploitation in International Paid Surrogacy Arrangements’ above n 91, 125. 98 Marcus Agnafors, ‘The Harm Argument Against Surrogacy Revisited: Two Versions Not to Forget’ (2014) 17 Medical Health Care and Philosophy 357. 99 Peter Gaffney, ‘Why the “Widespread Agreement” is Wrong: Contesting the Non-Harm Arguments for the Prohibition of Full Commercial Surrogacy’ (2009) 17 Journal of Law and Medicine 280. 37
carried out in 2009 and the commercial surrogacy landscape has changed significantly since that time, particularly in the international arena.
The substantive chapters of this thesis will enlarge on the summarised literature that has been reviewed in this section.
H Significant Questions for Law, Policy, Practice and Theory Accordingly, while clearly being of contextual significance, commercial surrogacy also raises pressing questions for law policy, practice and theory. The overall purpose of this thesis is to contribute to scholarly knowledge about the law, policy and practice of commercial surrogacy in Australia, and to develop new insights into the theoretical basis for the current legal approach. Regarding the law and policy, this thesis will comprehensively synthesise the nature of the law relating to commercial surrogacy in Australia and isolate the policy values and motivations that underpin the legislation prohibiting commercial surrogacy with a focus on the dominant value of exploitation. Regarding practice, the legal and practical problems presented for those who participate in commercial surrogacy despite the current legal prohibition are identified. Following this, theories surrounding the condition of exploitation are analysed and three key concepts are identified from the literature as being necessarily present in an exploitative transaction of commercial surrogacy. They are: taking advantage of a vulnerability, a defect in consent and an unfair distribution of benefits. Empirical data from social science literature relating to the practical experiences of surrogate women in the selected jurisdiction of India is then explored and analysed to determine whether there is evidence of Indian surrogate women who have engaged in commercial surrogacy arrangements being exploited. Harms attributed to surrogate women resulting from the commercial surrogacy arrangements are identified, isolated, and measured using the normative framework of Mill’s harm principle. The theoretical analysis will be informed by theoretical understandings of exploitation, social science evidence of the lived experience of Indian commercial surrogate women and Mill’s harm principle.
This thesis addresses seven research questions spanning the dimensions of law, practice, policy and theory.
I Research Questions (RQ) The seven research questions driving this thesis are: 38
RQ 1: What is the law relating to commercial surrogacy in the Australian jurisdictions?
RQ 2: What are the legal and practical problems presented by the legislative prohibition on commercial surrogacy in the Australian jurisdictions?
RQ 3: What are the policies and values underpinning the legislative prohibition on commercial surrogacy in the Australian jurisdictions?
RQ 4: What is John Stuart Mill’s harm principle?
RQ 5: What is “exploitation”; what are its core features for operational purposes; and how can it be understood in the context of commercial surrogacy?
RQ 6: Is there evidence of commercial surrogate women in India experiencing exploitation?
RQ 7: What does Mill’s harm principle, together with an understanding of the nature of exploitation, and of the lived experiences of commercial surrogate women in India reveal/indicate about their experience of harm?
J Original and Significant Contributions to Knowledge This thesis makes significant contributions to knowledge in five domains. First, it explores the legislative frameworks regulating commercial surrogacy throughout Australia to explain how the legislation prohibits commercial surrogacy in the different jurisdictions and the impacts it has on the parties involved.
Second, this thesis contributes to and updates the existing body of literature analysing legal and practical problems imposed by the current legislation on Australian intended parents who engage, or have engaged, in commercial surrogacy arrangements in India. Many of the problems arise because of procedural obstructions caused by the impact of legislative prohibition. This analysis identifies these problems for law and practice, and provides justification to explore the policy decisions which underpin the laws and which have created an environment in which the identified problems are generated.
Third, this thesis examines the policies and values underpinning the legislation to determine the basis upon which the legislation prohibiting commercial surrogacy has 39
been enacted. Through doctrinal research and analysis of secondary material, a number of common themes are extracted of which exploitation emerges as a dominant value. In the liberal democracy of Australian society, the state must refrain from interfering in the rights of the people unless it has just cause to do so. This thesis provides an understanding of why commercial surrogacy is prohibited in Australia and adds to the debate of whether the prohibition is justified.
The fourth contribution to knowledge is the analysis of the concept of exploitation and its practical application to the commercial surrogacy environment in India. This analysis explores the validity of the value of exploitation of surrogate women, which has been identified as a cornerstone animating the legal prohibition, and tests the credibility of that assertion in terms of what the term ‘exploitation’ means and whether it is occurring.
Fifth, this thesis contributes to the literature on Mill’s harm principle in the context of reproductive technology and commercial surrogacy. This is significant on two grounds. First it will analyse the harm principle to isolate themes that can be applied to the context of commercial surrogacy. Second, it will determine whether Indian surrogate women are harmed or at definite risk of harm, thereby applying the harm principle in a context that has not been undertaken and contributing to the debate surrounding the question of whether law reform in this area is required. These contributions to knowledge help to fill gaps in the evidence base and scholarly literature.
The original contributions to knowledge made by this thesis are:
1. Identification and analysis of the policy, values and motivations which influenced the legislative prohibition on commercial surrogacy. 2. Analysis and application of Mill’s harm principle in the context of exploitation of surrogate women in India. 3. Analysis of the concept of exploitation and identification of features of this concept that are relevant to the context of commercial surrogacy. 4. Synthesis of social science research concerning the nature and extent of exploitation in the lived experiences of surrogate women in India. 5. Employment of Mill’s harm principle, together with conceptual and social science analysis of exploitation, as a normative framework for critical 40
examination of whether Indian surrogate women are harmed by commercial surrogacy transactions thereby adding to the debate surrounding the justifiability of the legislative prohibition in Australia. In addition, this thesis synthesises and integrates multiple bodies of knowledge employing the four areas of law, policy practice and theory, to conduct an intra- disciplinary critique of commercial surrogacy in the Australian context.
III METHODOLOGY, SCOPE AND LIMITATIONS
A Methodology. The research questions are explored using methodologies that employ a combination of doctrinal legal research and analysis to explore the questions about law, practice and policy; theoretical research and analysis to explore the questions about harm and exploitation; and social science research and analysis to explore the question about the practical experiences of Indian commercial surrogate women. Further details for each component of the thesis are provided here in section IV. Searches are current as at 1 September 2017.
Research Question 1: What is the law relating to commercial surrogacy in the Australian jurisdictions? This question was explored using doctrinal research and analysis of commonwealth, state and territory legislation governing commercial surrogacy in Australia. Legislation was identified by accessing commonwealth state and territory legislation databases, and the specific surrogacy legislation was located by searching these databases using targeted search terms. Common law decisions that relate to and/or explain the Australian legislation governing commercial surrogacy were also identified by searching electronic legal databases to further elucidate the meaning and operation of key legislative principles. Searches were originally carried out on the following databases: Austlii, Lexis Nexis AU and Westlaw AU between July 2012 and December 2015. Searches were updated in August and September 2017 using LawOne via Timebase and Lexis Advance Pacific. Details of the search approach and strategies are in Appendix 5.
Research Question 2: What are the legal and practical problems presented by the legislative prohibition on commercial surrogacy in the Australian jurisdictions? This question was explored using doctrinal legal research and 41
analysis of commonwealth, state and territory legislation governing commercial surrogacy in Australia, all publicly available common law decisions in Australia considering commercial surrogacy and secondary legal sources including parliamentary debates (Hansard), explanatory memoranda, government committee reports, and other extrinsic materials (e.g. law reform commission papers and secondary source coverage in books and articles). Searches were originally carried out on the following databases: AGIS, Austlii, Lexis Nexis AU and Westlaw between July 2012 and December 2015. Searches were updated in August and September 2017 using LawOne via Timebase and Lexis Advance Pacific. Details of the search approach and strategies are in Appendix 5.
Research Question 3: What are the policies and values underpinning the legislative prohibition on commercial surrogacy in the Australian jurisdictions? This question was explored using doctrinal research and analysis into secondary legal sources including parliamentary debates (Hansard), explanatory memoranda, government committee reports, and other extrinsic materials (e.g. law reform commission papers and secondary source coverage in books and articles). Searches were originally carried out on the following databases: Austlii, Lexis Nexis AU and Westlaw AU between July 2012 and December 2015. Searches were updated in August and September 2017 using LawOne via Timebase and Lexis Advance Pacific. Details of the search approach and strategies are in Appendix 5.
Research Question 4: What is John Stuart Mill’s harm principle? This question was explored by doctrinal research and analysis of primary source material being ‘On Liberty’ by J.S. Mill, and secondary material in the field of social science including books, reports and journal articles. Searches were originally carried out on the following databases: EBSCO Host (including Academic Search Elite and CINAHL), Sage Journals, Science Direct and Scopus between July 2012 and December 2015. Searches were updated in August and September 2017. Details of the search approach and strategies for this research question are in Appendix 5.
Research Question 5: What is “exploitation”; what are its core features for operational purposes; and how can it be understood in the context of commercial surrogacy? This question was explored by doctrinal research and analysis of secondary material in the field of social science including books, reports 42
and journal articles. Material was retrieved from the following databases via QUT library: CINHAL and Academic Search Elite in EBSCO Host; Sage Journals; Science Direct and SCOPUS. Updated searches were carried out in August and September 2017. Full details of the search approach and strategies for this RQ are in Appendix 5.
Research Question 6: Is there evidence of commercial surrogate women in India experiencing exploitation. This question was explored by:
1. Doctrinal research and analysis of primary material including statistical research documentation obtained from government websites and non- government organisations such as Government of India Ministry of Health and Family Welfare and Census of India Website. 2. Doctrinal research and analysis of secondary material in the field of social science research such as books, reports and journal articles about the lived experiences of women in India in the context of the gender, culture, caste and economic environment. This was achieved by retrieving material from the following databases via QUT library: CINHAL and Academic Search Elite in EBSCO Host; Sage Journals; Science Direct and SCOPUS. In addition, material was retrieved from Google Scholar (via scholar.google.com.au) and by searching grey literature including government and organisational websites in India. Searches were originally carried out between July and December 2015 and updated between August and September 2017. 3. Analysis of the experiences of Indian surrogate women to determine whether evidence of exploitation is present, how it is revealed and whether it causes harm to the surrogate mother. Full details of the search approach and strategies for this research question are in Appendix 5.
Research Question 7: What does Mill’s harm principle, together with an understanding of the nature of exploitation, and of the lived experiences of commercial surrogate women in India, reveal/indicate about their experience of harm? This question was explored by isolating the harms identified in Research Question 6 and deploying Mill’s harm principle as the normative framework against which the harms identified are critiqued using the counterfactual baseline. 43
B Scope and Limitations of this Thesis While this thesis makes several significant contributions to knowledge, it is important to note its scope and limitations. First, in relation to values, analysis in this thesis revealed a number of values and motivations underpinning the legislative prohibition. It is beyond the scope of any single thesis to critically analyse and consider all of these values. Here, the value of exploitation of the surrogate mother is selected as the core concept warranting deeper analysis on the basis that it was found to be a dominant value underpinning the legislation and was acknowledged in the literature as one of if not the major problem that prohibition was intended to avoid.100
Second, while this thesis explores the experiences of commercial surrogate mothers, it is beyond the scope of a single thesis to explore the experiences of all potential participants in commercial surrogacy arrangements. It is acknowledged there can be a number of parties involved in a commercial surrogacy arrangement. There will always be at least one intended parent and the surrogate mother, but there may also be a second intended parent, the partner of the surrogate mother, sperm donor, egg donor, and of course, the child (or children) born as a result of the surrogacy. Here, in exploring RQs 5, 6 and 7, the selected human subject of concern is the surrogate mother, whose experience is the focus of much of the parliamentary debate and discussion surrounding prohibition of commercial surrogacy in Australia. Although there are parties in relationships with the surrogate mother who may be harmed by her role in the surrogacy transaction, including her family, this thesis will focus on exploitation and/or harm caused to and not by the Indian surrogate mother.
Third, this thesis will focus specifically on surrogate mothers in India who are engaged in commercial surrogacy arrangements. Commercial surrogacy is prohibited and therefore not practiced openly within Australia. However, it is public knowledge that Australian intended parents engage in commercial surrogacy arrangements. Commercial surrogacy is practised in a number of jurisdictions including parts of the USA and Ukraine.101 Insofar as the thesis explores the experience of commercial surrogate women, the jurisdictional focus is limited to India because of its popularity
100 Keyes, above n 15, 45; Millbank, above n 26, 191. 101 India, Thailand, Nepal and Mexico offer commercial surrogacy services but currently have bans or restrictions on access by foreign consumers to these services. Jackson, above n 18, 24. 44
with Australian intended parents over the past decade and the availability of evidence about the experiences of surrogate women in that jurisdiction.
Fourth, this thesis contributes to knowledge by exploring the strength of the particular value of exploitation of surrogate women and does not seek to explore all policy values underpinning the legislative prohibition; accordingly, it does not claim to propose a final comprehensive response about whether commercial surrogacy should be prohibited. Nor does this thesis argue that the legislative prohibition of commercial surrogacy necessarily prevents parties engaging in that particular conduct. Rather, it explores whether one of the significant reasons for Parliament enacting the prohibition of commercial surrogacy in Australia — exploitation of surrogate women — is justified by the harm principle.
Fifth, the purpose of this thesis is to explore and develop evidence about the research questions posed concerning law, policy, practice and theory. The thesis does not aim or purport to develop model laws or regulatory frameworks to respond to the problems it identifies. For example, in relation to RQ 1 concerning the nature of the law and RQ 2 about the legal and practical problems it presents, the research and analysis will identify the nature of the legislative principles and the resulting practical problems facing commercial surrogacy. While insights may indicate implications for potential reform, it is not the aim or function of this thesis to resolve those problems or develop a model commercial surrogacy law which makes the legislation more workable or commercial. Similarly, in relation to Indian surrogate women and RQ 6 concerning exploitation and RQ 7 concerning harm to which the women are exposed, the aim of this thesis is not to provide direction on the prevention of exploitation and harm, but to explore the existence and nature of these conditions and indicate whether they exist to justify further exploration of the prohibition on commercial surrogacy.
IV THESIS OUTLINE AND KEY FINDINGS
Chapter 2 addresses Research Questions 1, 2 and 3 by synthesising the laws relating to commercial surrogacy in Australia, identifying some of the problems faced by Australians who enter into overseas commercial surrogacy arrangements, and 45
exploring the values and motivations that have influenced the Australian Parliament to prohibit commercial surrogacy. The first part of the chapter begins with a brief description about the various forms surrogacy can assume and the diversity in relationships created by surrogacy arrangements. Following this, the chapter addresses Research Question 2 by identifying and analysing the legal and practical problems faced by Australians who enter into commercial surrogacy. Problems surrounding parentage, citizenship and registration of birth are identified and analysed, and this, in turn, invites further exploration of whether the current framework justified. Chapter 2 then explores Research Question 3 by examining the underpinning policies, values and motivations that have been used to justify the prohibition of commercial surrogacy in Australia. A number of values and motivations that have contributed to the prohibition are identified. This lays the foundation for selecting and critiquing one dominant value underpinning the currently problematic legislative framework in order to add to the debate of whether the framework should remain as it currently stands. Chapter 2 concludes that exploitation of surrogate women is a dominant value driving the prohibition of commercial surrogacy in Australia.
Chapter 3 addresses Research Question 4 by exploring the concept of Mill’s harm principle. On liberty is analysed both as a primary resource and, informed by scholarly critique, to isolate themes from the harm principle that can be applied in the context of commercial surrogacy. A framework is established against which the level of harm experienced by surrogate women can be measured.
Chapter 4 addresses Research Question 5. Theories surrounding the nature of exploitation are explored and analysed. The literature is reviewed and the concept of exploitation is applied so that it forms a measurable condition. Three key concepts most frequently occurring in the literature are identified as being necessarily present in an exploitative transaction in the context of commercial surrogacy. They are: taking advantage of a vulnerability, a defect in consent, and an unfair distribution of benefits, and, together, they represent a strong model of exploitation – that is one that meets a robust standard that is necessary to support a regulatory framework. Challenges raised in the application of the three key concepts in the context of commercial surrogacy are identified and resolved so that the concepts can be applied 46
to primary qualitative studies and secondary social science material about the lives and experiences of surrogate women in India.
Chapter 5 explores Research Question 6, beginning with an exploration of the Indian social context so that the physical, social and economic environment of Indian surrogate women can be placed in context. Primary qualitative studies and secondary material from social science research is examined using the three key concepts identified in chapter 4 to inform an assessment of whether there is evidence that exploitation is present in the lived experiences of surrogate women in the selected jurisdiction of India. Exploitative practices that are present and attributable to the women as a result of the commercial surrogacy arrangements are identified and isolated. Chapter 5 concludes that there is evidence that the three core features identified in chapter 4 as being key concepts of exploitation are present in the lived experiences of some Indian surrogate women.
Chapter 6 identifies and measures the harms imposed by commercial surrogacy transactions against a counterfactual baseline in order to determine whether they warrant the protection of Mill’s harm principle. The chapter begins by identifying evidence of potential harm revealed in the analysis and synthesis of the empirical research in chapter 5. The potential harms are then assessed against the framework of Mill’s harm principle. When applying the counterfactual baseline, the test employed is whether the surrogate mother in a worse position than she would have been had the commercial surrogacy arrangement not taken place. This is achieved by following five steps. First, the harms or set-backs that Indian surrogate women face are identified and their affected interests isolated. Second, harms which are not affected by Mill’s harm principle are excluded. Third, the interests and set-backs are analysed and assessed to determine whether the women’s interests are sufficiently affected to attract the harm principle. Fourth, the benefits afforded to surrogate women by the surrogacy transaction are isolated. Fifth, an overall assessment is made of whether the women are in a worse position than they would have been had the surrogacy arrangement not occurred. This assessment takes the set-backs and benefits of commercial surrogacy transactions into account. The chapter concludes that some surrogate women who participated in the studies informing this thesis are exposed to actual harm and definite risk of harm but commercial surrogacy is not 47
‘typically’ harmful, and there is insufficient evidence to conclude that, overall, the surrogate women who participated in the studies informing this thesis are harmed.
Chapter 7 concludes this thesis by drawing together the findings, identifying implications for Australian state and territory legislators and suggesting areas of further research. In addition, Chapter 7 presents the overall conclusions and significant and original contributions of knowledge made by the thesis. A brief summary of the findings and implications is set out below:
1. Commercial surrogacy is prohibited in all Australian jurisdictions, and in Queensland, New South Wales and the Australian Capital Territory the prohibition is extra-jurisdictional. Because intended parents travel overseas to engage in commercial surrogacy, the prohibition of commercial surrogacy in Australia raises legal and practical problems relating to parentage, citizenship and registration of the child’s birth. 2. A dominant value underlying and justifying the prohibition of commercial surrogacy in Australia is that commercial surrogacy exploits surrogate women. This thesis could not make any conclusions about Indian surrogate women generally, as the studies informing this thesis are qualitative in nature and the findings apply only to those women who participated in those studies. However, in relation to those participants, there is evidence that some Indian surrogate women are being exploited by commercial surrogacy transactions thereby confirming, to some extent, the concerns of Australian State and Territory Parliaments. 3. It can be concluded that some surrogate women suffer actual harm through stigmatisation and some women are exposed to a definite risk of harm through stigma, multiple embryo transfer, foetal reduction and caesarean section. 4. It cannot be concluded that commercial surrogacy typically harms Indian surrogate women because they are a diverse cohort with varied needs and experiences. Furthermore, when considering the potential benefits surrogacy presents to the women, there is insufficient evidence to conclude that, overall, commercial surrogacy is harmful to Indian surrogate women; or to those Indian surrogate women who participated in the studies informing this thesis. Therefore, interference by the state in prohibiting commercial surrogacy 48
based on exploitation of surrogate women has not been justified by this thesis using the framework of Mill’s harm principle. 49
CHAPTER 2: THE LEGISLATIVE FRAMEWORK OF COMMERCIAL SURROGACY IN AUSTRALIA
I INTRODUCTION: MULTIPLE FORMS OF SURROGACY AND KEY CONCEPTS
Medical developments in reproductive technology have progressed dramatically since the first IVF birth in 1978.1 Surrogacy has grown in popularity as techniques and accessibility to treatment improve, infertility increases, children available for adoption decline, and general perceptions about infertility treatments change.2
Surrogacy takes many forms, each of which raises ethical debate. Traditional surrogacy occurs where the surrogate mother’s egg is used in the fertilisation procedure so that the child is genetically related to the surrogate mother. In a gestational surrogacy arrangement, the surrogate mother has no genetic connection to the child she bears, because the egg or eggs used in the fertilisation procedure are donated or from the intended mother. A further differentiation surrounds the payment arrangements. In an altruistic surrogacy arrangement, there is no exchange of money or other benefit between the parties to the agreement except that the surrogate mother is paid the reasonable expenses of the pregnancy. A commercial surrogacy arrangement involves payment or other benefit being afforded to the surrogate mother in exchange for her services in carrying, delivering and relinquishing the child born as a result of the commercial surrogacy arrangements
Traditionally, surrogacy involved a male intended parent having sexual intercourse with the surrogate mother, or, alternatively, artificial insemination was self - conducted. However, with the development of artificial reproductive technologies such as IVF, more complex and sophisticated methods allow implantation of the surrogate mother with an embryo (or embryos) using an egg or eggs taken from the
1 Geraldine Hartshorne, ‘Thirty Years of IVF’ (2008) 11(2) Human Fertility 77, 77. 2 Anita Stuhmcke, ‘The Criminal Act of Commercial Surrogacy in Australia — A Call for Review’ (2011) Journal of Law and Medicine 601; Anita Stuhmcke, ‘For Love or Money: The Legal Regulation of Surrogate Motherhood’ [1996] Murdoch University Electronic Journal of Law 6 [7]; Anita Stuhmcke, ‘Surrogate Motherhood: The Legal Position in Australia’ (1994) 2 Journal of Law and Medicine 116, 118. 50
intended mother or a donor. Similarly, the sperm used in the fertilisation procedure need not be that of the intended father, although it might be.
Therefore, the biological relationships in surrogacy arrangements are diverse. This, coupled with the fact that the birth mother is not the intended mother, means that in a surrogacy arrangement the intended parents are not the legal parents. Legal procedures must be undertaken to transfer parentage from the surrogate mother and her partner to the intended parents. Added to the already complex landscape, intended parents often cross international borders to engage in commercial surrogacy arrangements. Whether it is to access high-level medical expertise, lower costs, or to escape a restrictive local surrogacy framework, countries such as India have seen a dramatic increase in access to the surrogacy services it provides, with turnover estimates from between $3.2 million and $4.5 million per year.3
The literature suggests one of the reasons Australian intended parents travel to India is because commercial surrogacy is prohibited in Australia.4 Many Australian intended parents do not know a willing altruistic surrogate mother — that is, a woman who is prepared to gratuitously carry or gestate a baby which she will then relinquish.5 Advertising for an altruistic surrogate mother is prohibited in most jurisdictions in Australia.6 As a consequence, intended parents travel overseas to engage in commercial surrogacy arrangements.
3 Marcus Agnafors, ‘The Harm Argument Against Surrogacy Revisited: Two Versions Not to Forget’ (2014) 17 Medical Health Care and Philosophy 357, 358; Alison Bailey, ‘Reconceiving Surrogacy: Toward a Reproductive Justice Account of Indian Surrogacy’ (2011) 26(4) Hypatia 715, 717; Louise Johnson, Eric Blyth et al, ‘Barriers for Domestic Surrogacy and Challenges of Transnational Surrogacy in the Context of Australians Undertaking Surrogacy in India’ (2014) Journal of Law and Medicine 136, 145. 4 Jenni Millbank, ‘The New Surrogacy Parentage Laws in Australia: Cautious Regulation or “25 Brick Walls”?’ [2011] 35 Melbourne University Law Review 165, 191; Mary Keyes, ‘Cross-border Surrogacy Agreements’ (2012) 26 Australian Journal of Family Law 28, 29. 5 Standing Committee on Social Policy and Legal Affairs, The Parliament of the Commonwealth of Australia House of Representatives, Surrogacy Matters, Inquiry into the Regulatory and Legislative Aspects of International and Domestic Surrogacy Arrangements (2016) 23. 6 Parentage Act 2004 (ACT) s 43; Surrogacy Act 2010 (NSW) s 10; Surrogacy Act 2010 (Qld) s 55; Family Relationships Act 1975 (SA) s 10H(2); Surrogacy Act 2012 (Tas) s 41(2)(c); Assisted Reproductive Treatment Act 2008 (Vic) s 45; Surrogacy Act 2008 (WA) s 10. Western Australia allows advertising for altruistic surrogacy. Surrogacy Act 2008 (WA) s 10 limits the offence of publishing to commercial surrogacy arrangements for reward which are those surrogacy arrangements where payment amounts to more than reasonable expenses. In South Australia and Tasmania, the offence occurs where the advertiser receives a fee and in New South Wales advertising for altruistic surrogacy is not an offence provided no money is exchanged for the advertisement and the surrogacy arrangement is not commercial in nature. 51
From the genesis of legislative activity relating to surrogacy in the mid-1980s, commercial surrogacy was prohibited because it was viewed as exploitative and harmful. There was little political discussion or debate on the topic at that time, and scant further debate since then.7 In 2012, when all states and the Australian Capital Territory passed legislation legalising altruistic surrogacy, commercial surrogacy was still prohibited and remains so today.
This chapter: Research Questions 1, 2 and 3. This chapter addresses Research Questions 1, 2 and 3. First, in section II, it addresses Research Question 1 by synthesising the legislative framework relating to commercial surrogacy throughout Australia. Section III addresses Research Question 2 by conducting doctrinal legal research and analysis of the problems that arise as a result of the prohibition of commercial surrogacy. This is important because the literature suggests that the prohibition of commercial surrogacy in Australia has contributed to intended parents engaging in overseas commercial surrogacy, which, in turn, raises legal and practical problems. A general understanding of the legislative framework relating to commercial surrogacy in Australia and the associated problems then provides a background in which section IV analyses the more specific issue in Research Question 3, namely the policy reasons and values underpinning the prohibition of commercial surrogacy.
The chapter begins by synthesising the legislation relating to commercial surrogacy in each state and territory. In particular, the circumstances under which the offence of commercial surrogacy occurs and the geographical extent of the prohibition of commercial surrogacy are examined. The problematic issues that commercial surrogacy generates are then identified and analysed. This provides a backdrop against which further exploration of the policies and values underpinning the legislation can be carried out in section IV. At the outset of section IV, an historical perspective of how the laws relating to surrogacy have developed is conveyed to place in context the changing social attitudes and medical developments which have occurred alongside the increase in use of surrogacy as a reproductive technology. Following this, secondary material is reviewed and analysed to determine the reasons
7 Anita Stuhmcke, ‘Surrogate Motherhood: The Legal Position in Australia’, above n 2, 116; Anita Stuhmcke ‘Looking Backwards, Looking Forwards; Judicial and Legislative Trends in the Regulation of Surrogate Motherhood in the UK and Australia’ (2004) 18 Australian Journal of Family Law 1, 11. 52
underpinning the prohibition of commercial surrogacy. One dominant value (exploitation of surrogate women) is identified to provide the foundation for further research and analysis in the following chapters.
However, first it is important to understand the terminology used in the legislation, as there is variance between the jurisdictions.
A Terminology As noted in chapter 1 (and the glossary), different terminology is used in legislation relating to surrogacy throughout Australia. ‘Surrogacy arrangements’ are also known as ‘substitute parent agreements’8 and ‘recognised surrogacy agreements’.9 The ‘surrogate mother’,10 is also known in some jurisdictions as the ‘birth mother’ 11 or ‘birth parent’.12 The ‘intended parents’13 may be referred to as ‘commissioning parents’,14 ‘arranged parents’15 or ‘substitute parents’.16 A ‘parentage order’17 is referred to as a ‘substituted parentage order’ in Victoria18, and South Australia refers to it by description rather than name.19
In an altruistic surrogacy arrangement, there is no exchange of money or other benefit made to or by any party, with the exception of reasonable expenses being paid to the surrogate. The definition of ‘reasonable expenses’ varies across jurisdictions, but generally refers to expenses that are directly associated with the pregnancy. In some jurisdictions, the legislation specifically lists expenses which are ‘reasonable’, such as medical, legal and counselling expenses, transportation and accommodation costs, loss of earnings due to the pregnancy and even insurance
8 Parentage Act 2004 (ACT) s 23. 9 Family Relationships Act 1975 (SA) s 10HA(2). 10 Family Relationships Act 1975 (SA) s 10HA(2); Status of Children Act 1974 (Vic) s 1. 11 Surrogacy Act 2010 (Qld) s 8(1); Surrogacy Act 2010 (NSW) s 5(5); Surrogacy Act 2012 (Tas) s 4; Surrogacy Act 2008 (WA) s 3. 12 Parentage Act 2004 (ACT) s 23(a). 13 Surrogacy Act 2010 (Qld) s 9; Surrogacy Act 2010 (NSW) s 5(6); Surrogacy Act 2012 (Tas) s 4. 14 Status of Children Act 1974 (Vic) s 17; Family Relationships Act 1975 (SA) s 10HA(2). 15 Surrogacy Act 2008 (WA) s 3. 16 Parentage Act 2004 (ACT) s 24(c). 17 Surrogacy Act 2010 (Qld) s12(1); Surrogacy Act 2010 (NSW) ss 4, 12; Parentage Act 2004 (ACT) ss 23, 26; Surrogacy Act 2012 (Tas) ss 16, 22; Surrogacy Act 2008 (WA) ss14, 19. 18 Status of Children Act 1974 (Vic) s 22. 19 Section 10HB of the Family Relationships Act 1975 (SA) is headed ‘Orders as to parents of child born under recognised surrogacy arrangements’. Reference is made to the court ‘making an order under this section,’ and the effect of the order is outlined in s 10HB (13). However, there is no specific name given to the order other than by description. 53
premiums.20 Alternatively, the legislation may provide a loose definition such as making a payment or reward in connection with the pregnancy the subject of the agreement or the birth or care of the child.21 There is generally no refinement of what is considered ‘reasonable’ although New South Wales does require verification by way of receipts or other documentation.22 Those arrangements where expenses, beyond those which are reasonable, are paid by or to any party to the agreement are known as ‘commercial surrogacy arrangements’. Table 2.1 details the differences in terminology between the Australian jurisdictions.
20 The reasonable expenses associated with the surrogacy arrangement are defined in legislation. Surrogacy Act 2010 (Qld) s 11; Surrogacy Act 2010 (NSW) s 7; Family Relationships Act 1975 (SA) s 10HA(2a)(i); Surrogacy Act 2008 (WA) s 6; Surrogacy Act 2012 (Tas) s 9; Surrogacy Act 2008 (WA) s 6. 21 Parentage Act 2004 (ACT) s 40; Assisted Reproductive Treatment Act 2008 (Vic) s 44. 22 Surrogacy Act 2010 (NSW) s 7(5). 54
Table 2.1 Terminology in the different jurisdictions.
Terms and Queensland New South Australian Victoria Tasmania South Western sections of Wales Capital Assisted Australia Australia legislation Territory Reproductive Surrogacy Surrogacy Treatment Act Surrogacy Family Surrogacy Act 2010 Act 2010 Parentage 2008 Act 2012 Relationships Act 2008 (Qld) (NSW) Act 2004 (Vic)(ARTA) (Tas) Act 1975 (WA) (ACT) Status of (SA) Children Act 1974 (Vic) (SCA)
Surrogacy s 7 s 5 s 23 s 3 ARTA s 5 s 10HA (2) s 3 arrangement Surrogacy Surrogacy Substitute Surrogacy Surrogacy Recognised Surrogacy arrangement arrangement parent arrangement arrangement surrogacy arrangement agreement agreement
Birth s 8(1) s 5(5) s 23 s 40 ARTA s 5 s 10HA (2a) s 3 mother Birth Birth Birth 17 SCA Birth (a)(i) Birth mother mother parent Surrogate mother Surrogate mother mother mother Intended s 5(6) s 5(6) ss 23, s 3 ARTA s 5 s 10HA (2a) s 3 parent Intended Intended 24(1) Commissioning Intended (a)(ii) Arranged parent parents Substitute parents parents Commission- parents parents ing parents
Parentage s 12(1) ss 4, 12 s 23, 26 ss 17 SCA, 20 ss 16, 22 s 10HB s 14, 19 order Parentage Parentage Parentage SCA Parentage Order under Parentage order order order Substitute order S10HB order parentage order
55
II THE LEGISLATIVE FRAMEWORK FOR COMMERCIAL SURROGACY IN AUSTRALIA
A Introduction General prohibition on commercial surrogacy. Surrogacy is regulated in most jurisdictions in Australia although the key legislative principles vary sufficiently making it complex and challenging to navigate. However, one common aspect of the legislative framework is that commercial surrogacy is prohibited, in some way, in all legislated jurisdictions.23
The Northern Territory is the only jurisdiction in Australia that has not passed legislation in relation to commercial surrogacy. However, medical practitioners providing reproductive services are subject to the National Health and Medical Research Council’s Ethical Guidelines which provide an overarching and robust framework for the conduct of ART in clinical practice.24 The Guidelines specifically state that ‘clinics and clinicians must not practise, promote or recommend commercial surrogacy, nor enter into contractual arrangements with commercial surrogacy providers’. 25 However there is an ethical obligation to advise people intending to undertake assisted reproductive technology overseas of any concerns about the standard of care in such overseas clinics.26
In contrast, commercial surrogacy is expressly prohibited by legislation in all other Australian jurisdictions. However, the legislative approach to prohibition varies across these seven jurisdictions. For the purpose of this thesis, these differences in legislative approach have been broken down into two areas. The first relates to what actually constitutes an offence and who could commit an offence, and the second relates to the extra-territorial extent of the offence. The first area will be dealt with in section B under the heading of ‘Circumstances of the offence’, and the second will be dealt with in section C.
23 Surrogacy Act 2010 (Qld) s 56; Surrogacy Act 2010 (NSW) s 8; Parentage Act 2004 (ACT) s 41; Assisted Reproductive Treatment Act 2008 (Vic) s 44; Surrogacy Act 2012 (Tas) s 40; Family Relationships Act 1975 (SA) s 10H; Surrogacy Act 2008 (WA) s 8. 24 Australian Government, National Health and Medical Research Council, Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research (2017) 13. 25 Ibid 65. 26 Ibid 33. 56
B Circumstances of the Offence Liability of parties. The offences in this section are specifically related to commercial surrogacy arrangements. In some jurisdictions, only the parties to a commercial surrogacy arrangement commit an offence, whereas in other jurisdictions the offence extends to third parties who do acts such as provide technical or professional services for commercial surrogacy arrangements. For example, it is an offence to enter into commercial surrogacy arrangements in Queensland, New South Wales, the ACT, Tasmania, and Western Australia.27 This has wide application encompassing anyone who is a party to the agreement and may include the surrogate mother and her spouse, the intended parents, and gamete donors. The offence of payments surrounding commercial surrogacy attaches to the surrogate mother in Victoria. It is an offence for a surrogate mother to receive any material benefit or advantage as a result of a surrogacy arrangement subject to costs actually incurred as a direct consequence of entering into the arrangement.28 It is not an offence for the intended parents to make such payments to the surrogate mother. In South Australia, the offence of entering into a commercial surrogacy arrangement applies to any person who ‘negotiates, arranges or obtains the benefit’ of the agreement unless the person is authorised by the State Framework for Altruistic Surrogacy.29
Other offences. In Queensland, 30 Western Australia,31 and the Australian Capital Territory,32 medical, legal and allied health professionals are also prohibited from providing services in relation to commercial surrogacy arrangements. Clearly, this would apply to medical professionals who specialise in infertility treatment. It is questionable whether it would extend to affiliated services provided outside the hospital walls but which, nonetheless, assist with pregnancy, such as pathologists or nursing staff who provide pre-natal advice. On the other hand, the provision of medical, legal and allied health services under these circumstances is not an offence in New South Wales, Victoria, South Australia or Tasmania.
27 Surrogacy Act 2010 (Qld) s 56; Surrogacy Act 2010 (NSW) s 9; Parentage Act 2004 (ACT) s 41; Surrogacy Act 2012 (Tas) s 40; Surrogacy Act 2008 (WA) s 8. 28 Assisted Reproductive Treatment Act 2005 (Vic) ss 44 (1), (2). 29 Family Relationships Act 1975 (SA) s 10H(1). 30 Surrogacy Act 2010 (Qld) s 58. 31 Surrogacy Act 2008 (WA) s 11. 32 Parentage Act 2004 (ACT) s 44. 57
There are offences surrounding the advertising of surrogacy in all legislated jurisdictions, although in some jurisdictions the offence only relates to commercial surrogacy arrangements.33 Legislation in Victoria, Tasmania, South Australia, Western Australia and the Australian Capital Territory also specifies an offence of brokerage or arranging others to enter into such arrangements.34
Penalties. There is significant variance in the penalties imposed for offences which take place in the different legislated jurisdictions. For example, the penalty for entering into a surrogacy arrangement in most jurisdictions varies from fines of approximately $12,000–$16,000. This figure increases to $24,000 in Western Australia and escalates to $110,000 in New South Wales. In all jurisdictions except Tasmania (which provides for a fine only) there is an optional penalty of imprisonment, but in New South Wales and Victoria a person who offends the legislation may be subjected to both a fine and a term of imprisonment. Similar discrepancies can be found in relation to offences of advertising, providing technical services and brokering surrogacy arrangements in return for a fee.
In summary, offences relating to commercial surrogacy arrangements in Australia may be committed in a number of ways. These range from entry into the arrangement, receiving payments above and beyond those costs which are reasonable under the surrogacy arrangement, advertising, arranging or organising a surrogacy arrangement for profit, and providing services relating to a commercial surrogacy arrangement. As a result, there is significant variance throughout Australia in terms of the manner in which the offences relating to commercial surrogacy are committed and the consequences. Liability extends to different people depending upon the jurisdiction concerned. These include medical staff, the surrogate herself, donors of genetic material, intended parents, and those who procure the surrogacy arrangement in return for payment. Legal behaviour in one jurisdiction could provoke prosecution
33 Surrogacy Act 2010 (Qld) s 55; Surrogacy Act 2010 (NSW) s 10; Parentage Act 2004 (ACT) s 43; Assisted Reproductive Treatment Act 2008 (Vic) s 45; Surrogacy Act 2012 (Tas) s 41; Surrogacy Act 2008 (WA) s 10; Family Relationships Act 1975 (SA) s10H(2). See commentary in above note 6 for specific jurisdictional details on advertising. The legislation in South Australia makes it an offence to ‘induce’ another for valuable consideration, to enter into a surrogacy contract. 34 Assisted Reproductive Treatment Act 2008 (Vic) ss 45(1)(c), 45(1)(e); Surrogacy Act 2012 (Tas) s 41(2); Family Relationships Act 1975 (SA) s 10H(1); Surrogacy Act 2008 (WA) s 9; Parentage Act 2004 (ACT) s 42 refers to procuring someone to enter into a substitute parent agreement. 58
in another. An overview of the offences relating to commercial surrogacy appears in Table 2.2.
Table 2.2 Overview of offences
QLD NSW ACT VIC Assisted TAS SA WA Surrogacy Surrogacy Parentage Act Reproduct-ive Surrogacy Family Surrogacy Act 2010 Act 2010 2004 Treat-ment Act 2012 Relation- Act 2008 Act 2008 ships Act 1975
Commercial s 56 s 8 s 41 s 44 ARTA s 40 s 10H unless s 8 Surrogacy Offence Offence Offence Offence for authorised by Offence prohibited SM to be paid 100 PU the State 100 PU 1000 PU or 100 PU or (PU = Framework $24,000 or 3 years 2 years 1 year 240 PU or $157) for Altruistic 2 years Imprison- Imprison- imprisonment 2 years Surrogacy Imprisonment ment ment or (PU = $150) imprisonment 12 months (PU = both or both Imprisonment $121.90) (2500 PU (PU = for $155.46) corporation) (PU = $110)
Advertising s 55 s 10 CS s 43 s 45 ARTA s 41 s 10H (2) s 10 Publishing Offence Offence Offence 100 PU Offence, for Offence prohibited 10(1) unless commercial 240 PU or valuable commercial 100 PU or for an (fine + 2 years consideration, only 3 years altruistic imprisonment) Imprisonment to induce Imprison- and no and altruistic or both another to $6000 fine ment payment (fine only). enter a made for surrogacy advert 10(2) contract 50 PU or 1000 PU or 6 months CS/AS Not CS/SA not 12 months 2 years Imprisonment specified specified imprisonment CS/AS Imprison- Not ment specific Provision of s 58 No s 44 No No No s 11 technical or Offence Offence Offence professional services for 100 PU or 100 PU or $12,000 or CSA 3 years 1 year 1 year prohibited Imprison- imprison-ment imprisonment ment
Brokerage Not Not specific s 42 procure ARTA s 41(2) s 10H s 9 introduce specific but could be s45(1)(c) Brokerage negotiate, for valuable but could included in 100 PU or 1 arrange arrange, consideration be advertising year s45(1)(e) 100 PU induce included in imprisonment procure a SM 1 year advertising or both 12 months imprisonment 240 PU or imprisonment 2 years imprison- ment or both 59
QLD NSW ACT VIC Assisted TAS SA WA Surrogacy Surrogacy Parentage Act Reproduct-ive Surrogacy Family Surrogacy Act 2010 Act 2010 2004 Treat-ment Act 2012 Relation- Act 2008 Act 2008 ships Act 1975
Extra- s 54 s 11 s 45 No No No No territorial yes yes yes prohibition of commercial surrogacy
60
C Extra-Territorial Jurisdiction In Queensland, New South Wales and the Australian Capital Territory, the offence of entering into a commercial surrogacy arrangement has extra-territorial reach.35 That means it is an offence for anyone resident in these jurisdictions to enter into a commercial surrogacy arrangement anywhere in the world.
The legislation in Victoria, whilst preventing a surrogate mother from receiving any material benefit or advantage as a result of a surrogacy arrangement,36 is silent about intended parents making payments or providing such material benefit or advantage to the surrogate. This suggests that intended parents in Victoria who enter into overseas commercial surrogacy arrangements do not commit an offence under the Victorian legislation. This would be so even if the payment was made in Victoria. The surrogacy legislation in Victoria does prohibit advertising and publication in relation to making or facilitating entry into surrogacy arrangements, thereby preventing persons both within Victoria and overseas advertising their services within Victoria. However, no offence is committed in that state by intended parents who travel overseas to seek and engage in commercial surrogacy arrangements.
Similarly, the legislation in Tasmania, South Australia and Western Australia does not have extra-territorial reach. This means that residents of those jurisdictions and Victoria can enter into overseas commercial surrogacy arrangements without committing an offence under the surrogacy legislation of their jurisdiction.37 Technically, because there is no surrogacy legislation in the Northern Territory, residents of that jurisdiction could also access such services without finding themselves in breach of the law. However, for residents in Queensland, New South Wales and the Australian Capital Territory, entry into a commercial surrogacy
35 Surrogacy Act 2010 (Qld) s 54; Surrogacy Act 2010 (NSW) s 11; Parentage Act 2004 (ACT) s 45. 36 Assisted Reproductive Treatment Act 2008 (Vic) s 44. 37 In Hubert & Juntasa [2011] FamCA 504 [13], Watts J found that the necessary geographical nexus with New South Wales was lacking where intended parents entered into a commercial surrogacy arrangement in Thailand. Therefore, the applicants were unlikely to have committed an offence. At the time, New South Wales had no surrogacy legislation, but entry into commercial surrogacy arrangements was prohibited by the Assisted Reproductive Technology Act 2007 (NSW) s 43. The offence was subject to the Crimes Act 1900 (NSW) s10C. The Criminal Law (Territorial Application) Act 1995 (Tas) s 4 has similar requirements to the New South Wales legislation. It is submitted that there would be an insufficient territorial nexus with Tasmania to constitute an offence if intended parents from Tasmania engage in commercial surrogacy overseas. For the same reason, intended parents from South Australia (see Criminal Law Consolidation Act 1935 s 5G) and Western Australia (see Criminal Code Act Compilation Act 1913 (WA) Appendix B Schedule Criminal Code s12) would not commit an offence if they enter into off-shore commercial surrogacy arrangements. 61
arrangement is an offence even if it occurs overseas. In all legislated jurisdictions, state parentage orders cannot be obtained when intended parents enter into commercial surrogacy arrangements, regardless of whether or not they commit an offence.38
D Summary of the Legislative Framework for Commercial Surrogacy in Australia This part of the chapter identified and analysed the legislative framework of commercial surrogacy in Australia, thereby answering RQ 1. The research and analysis found that commercial surrogacy is prohibited in all Australian States and the Australian Capital Territory, while in the Northern Territory there is no legislation governing surrogacy of any kind, although the National Health and Medical Research Council’s Guidelines state that commercial surrogacy is ethically unacceptable and advises practitioners against such practice.
What constitutes the offence, and how it is perpetrated, varies among jurisdictions. This affects which party in the surrogacy arrangement actually commits the offence under the legislation. As a result, behaviour that is legal in one jurisdiction could be prohibited in another. For example, a person who provides technical services in South Australia would commit an offence if they travel interstate to Western Australia to carry out their work. Intended parents who can legally engage in off- shore commercial surrogacy in Victoria face potential criminal charges and imprisonment in Queensland, New South Wales and the Australian Capital Territory.
In addition, the penalties which attach to the various offences differ in severity. An offence such as advertising surrogacy arrangements which attracts a fine in one jurisdiction could attract imprisonment or even both a fine and imprisonment in another jurisdiction. Alternatively, the value of the fine imposed may be notably greater. This is significant as the consequences for engaging in commercial
38 In Queensland, New South Wales, Victoria and Tasmania, the court cannot make a parentage order if the parties have entered into a commercial surrogacy arrangement. Surrogacy Act 2010 (Qld) s 22(2)(e)(vi); Surrogacy Act 2010 (NSW) ss 23(1), (2); Status of Children Act 1974 (Vic) s 22(1)(d); Surrogacy Act 2012 (Tas) s 16(2)(a)(ii). In the Australian Capital Territory and South Australia, the legislation is not quite as strong in that whether or not the parties have engaged in a commercial surrogacy arrangement is one of the matters the court takes into consideration in deciding whether to make a parentage order: Parentage Act 2004 (ACT) s 26(3)(d); Family Relationships Act 1975 (SA) s 10HB(9)(c). The legislation in Western Australia does not explicitly prohibit the court from making a parentage order if the surrogacy arrangement is commercial in nature. However, the arrangement must be approved by the Western Australian Reproductive Technology Council. As commercial surrogacy is an offence under the legislation, it is unlikely the Council would approve such an arrangement: Surrogacy Act 2008 (WA) ss 8, 16(1), 17. 62
surrogacy can be harsh. The legislation is complicated and varied. Ignorance or lack of familiarity about the legislation is no bar to prosecution. Parties involved in surrogacy arrangements must be aware of the different requirements imposed by the legislation in different jurisdictions. This is particularly so for those engaging in off- shore commercial surrogacy.
In the next section, this thesis will explore the associated important question articulated in RQ 2 — namely, the legal and practical problems associated with overseas commercial surrogacy arrangements. Commercial surrogacy is prohibited in Australia. However, it is clear from the case law and media reports that intended parents engage in commercial surrogacy arrangements overseas. This creates problems that relate to parentage, citizenship and records of birth.
III LEGAL AND PRACTICAL PROBLEMS ARISING FROM COMMERCIAL SURROGACY ARRANGEMENTS
A Introduction General background to the problems. The main aim of the parties to a surrogacy arrangement, apart from achieving a successful pregnancy and birth, is for the intended parents to become the legal parents. Most surrogacy arrangements require the assistance of reproductive technology, although traditional surrogacies still occur. In some jurisdictions, the use of the surrogate mother’s egg is prohibited, thereby making it necessary to use either a donor egg or that of the intended mother.39 As a result, assisted reproductive technology can play an integral role in surrogacy arrangements. Whichever fertilization procedure is adopted, one thing remains constant — in a surrogacy arrangement, the intended mother does not carry and give birth to the child.
Under Australian legislation, the woman who gives birth to a child (and her partner, if she has one) are the child’s parents. Therefore, where surrogacy is involved, it is necessary to transfer parental rights from the surrogate mother and her partner to the intended parent or parents. State and territory surrogacy legislation facilitates this process in Australia by providing that a court can make a parentage order if certain conditions are satisfied. One of the conditions is that the surrogacy arrangement is
39 Parentage Act 2004 (ACT) s 42(b); Assisted Reproductive Treatment Act 2008 (Vic) s 40(1)(ab). 63
altruistic and not commercial in nature. Therefore, when Australian intended parents enter into commercial surrogacy arrangements in India, a transfer of parentage is not permitted under Australian law.
This also raises issues about citizenship, because the child’s birth parents are Indian citizens, but the intended parents are Australian. Unlike Australian law, which considers the birth parents to be the child’s parents, in India, generally the intended parents are considered to be the child’s parents. Therefore, in India, because the child’s parents are Australian, the child is not an Indian citizen; but under Australian law, without a transfer of parentage, the child’s parents are Indian, therefore the child is not an Australian citizen. Unless the child is afforded Australian citizenship by descent, he or she will be stateless.
To complicate matters, the regulatory schemes in India are inconsistent with who they register on the birth certificate. Sometimes, the birth mother’s name appears on the child’s birth certificate40 and in other cases words such as ‘unknown’41 or ‘no mother’42 are recorded. If a male intended parent has provided genetic material for the fertilisation procedure, his name might appear on the certificate.43 On other occasions, the certificate has been registered in the names of the intended parents. Even if the Australian intended parents are registered on the birth certificate, it does not guarantee the child is afforded Indian or Australian citizenship. Citizenship of children born to Australian intended parents in India is uncertain. Furthermore, in order for the intended parents to bring the child back to Australia, it is necessary that the child be issued with a passport, which is problematic without citizenship.
Therefore, the legal and practical problems are essentially caused by two factors. First, the commercial nature of the arrangement limits the kinds of parental orders the court can impose. Second, the arrangements take place in an overseas jurisdiction which raises issues with citizenship and documentation, such as the child’s birth certificate. The chapter draws on case law to illustrate the difficulties experienced by intended parents in these contexts.
40 Balaz v Anand Municipality No. 3020, Special Civil Application (Gujarat H.C. 2008). 41 Schone v Schone [2012] FamCA 1126 [5]. 42 Re Blake [2013] FCWA 1 [6]. 43 Ronald & Victor [2011] FamCA 389; Schone v Schone [2012] FamCA 1126; Re Blake [2013] FCWA 1; Fisher-Oakley v Kittur [2014] FamCA 123. 64
Limitations. Until recently, Thailand was a popular commercial surrogacy destination for Australian intended parents. For illustrative purposes, case law emanating from commercial surrogacy arrangements entered into by Australian intended parents in Thailand is referred to in this chapter, as well as those that occurred in India. Similarly, some of the examples provided by the case law to illustrate problems associated with citizenship and registration of birth reflect the experiences of intended parents who are not necessarily Australian. These cases are used to convey circumstances which could potentially arise in the context of Australian intended parents, as well as demonstrating the lack of consistency in the administration and regulation of commercial surrogacy in India, and the associated problems this can cause.
Finally, it is acknowledged that India’s current policy places an embargo on foreigners engaging in commercial surrogacy. Recent changes to guidelines in India which relate to surrogacy impact on Australian intended parents because persons other than Indian citizens are precluded from engaging in commercial surrogacy in India. One reason for the embargo is concern from the Indian government that Indian surrogate women being exploited by foreigners who engage in commercial surrogacy,44 although Pande asserts clinics are still making themselves available to foreigners.45
In sum, there are three major legal and practical issues that the research in this thesis has identified and will analyse: parentage, citizenship and registration of birth certificates.
Parentage orders. The chapter begins by highlighting the importance of obtaining a parentage order following the birth of a child as a result of a surrogacy arrangement, and the difficulties associated with this when the surrogacy arrangement is commercial in nature and occurs overseas. In most Australian jurisdictions, the court cannot impose a state parentage order if the surrogacy arrangement is commercial46
44 Press Information Bureau, Government of India Cabinet, 24 August 2016, http://pib.nic.in/newsite/PrintRelease.aspx?relid=149186. 45 Amrita Pande, ‘Global Reproductive Inequalities, Neo-Eugenics and Commercial Surrogacy in India’ (2016) 64(2) Current Sociology Monograph 244, 247. 46 Surrogacy Act 2010 (Qld) s 22(2)(e)(vi); Surrogacy Act 2010 (NSW) s 23; Parentage Act 2004 (ACT) s 24(c); Status of Children Act 1974 (Vic) s 22(1)(d); Surrogacy Act 2012 (Tas) s 16(2)(a)(ii); Family Relationships Act 1975 s 10HA(2a)(i). Western Australia does not specifically exclude parentage orders where the surrogacy arrangement is commercial in nature, but the agreement must be 65
or, in some cases, if the child was not conceived in that particular state or territory.47 Those parents who are unable to obtain a state parentage order because of the commercial nature of the surrogacy arrangement they have engaged in may apply to the Family Court of Australia. Parenting orders issued under the Family Law Act 1975 (Cth) are examined in this chapter. While parenting orders confer parental responsibility on the intended parents, they do not transfer parentage. Difficulties in interpreting the relevant sections of the Family Law Act which declare parentage are examined. Tensions and inconsistencies in judicial decision-making when applying family law legislation to commercial surrogacy arrangements are demonstrated, particularly in situations where a male intended parent is genetically related to the child. Approaches adopted by the judiciary to accommodate parentage in commercial surrogacy arrangements are explored. Parentage of children born as a result of commercial surrogacy arrangements is significant for two reasons. First, there is legal uncertainty surrounding the parentage of these children; and second, according to the Family Law Council, many parents who have engaged in overseas commercial surrogacy do not apply for parenting orders resulting in ‘children growing up in Australia without any secure legal relationship to the parents who are raising them’. 48 Section B will be devoted to the issues of parentage orders and other procedures adopted by intended parents to gain legally justified caring responsibilities for their children.
Citizenship and registration of birth. The chapter also examines the issues of citizenship and registration of birth. Citizenship is not an automatic right when a child is born to an Australian citizen outside Australia. Application for Australian citizenship must be made to the Minister for Immigration and Border Protection. Problems arise where proof of one parent being an Australian citizen is required because of the questions surrounding parentage in overseas commercial surrogacy arrangements. In addition, registration of the intended parents on the child’s Indian birth certificate does not confer parentage under Australian law. These issues have led to lengthy court cases where intended parents have been unable to take the child approved by the Western Australian Reproductive Technology Council in order to obtain a parentage order. As commercial surrogacy is prohibited under s 8, is it unlikely the Council would approve a commercial surrogacy arrangement. 47 For example, in the Australian Capital Territory, Victoria and South Australia, the fertilisation procedures must be carried out in those jurisdictions: Parentage Act 2004 (ACT) s 24(a); Status of Children Act 1974 (Vic) s 20(1)(a); Family Relationships Act 1975 (SA) s 10HA (2a)(h). 48 Family Law Council of Australia, Report on Parentage and the Family Law Act (2013) 99. 66
born as a result of a surrogacy arrangement back to their home country. Section C will be devoted to the issue of citizenship and section D will analyse the issue of registration of birth.
B Parentage Australian state and territory legislation about commercial surrogacy contains an irrebuttable presumption that the woman who gives birth to a child as a result of artificial conception procedures and her husband (if she is married) or de facto partner if she has one are the child’s parents.49 In a surrogacy arrangement, the child’s legal parents at the time of birth are the surrogate mother and her partner. The intended parents have no immediate right to parentage. Legislation in most jurisdictions in Australia prescribes a procedure by which parentage can be transferred from the surrogate or birth parents to the intended parents. In most jurisdictions, this is referred to as a ‘parentage order’.50 The effect of a parentage order is that the child becomes a child of the intended parent(s) and the intended parent(s) become the parent(s) of the child. In addition, the legal parentage of the birth parents is extinguished.51 A transfer of parentage protects the child’s rights under succession law in relation to both intestacy and the contesting of a will and protects the surrogate mother and her family from any claim the child may have against the surrogate mother’s estate. In addition, legal responsibility and liability towards the child, such as child support, are removed from the surrogate mother and her spouse if she has one.52 The legislation also provides that the intended parents be registered on the child’s birth certificate,53 thereby alleviating potential
49 Status of Children Act 1978 (Qld) s 15; Status of Children Act 1996 (NSW) s 14; Status of Children Act 1974 (Vic) ss10C, 10D, 10E; Parentage Act 2004 (ACT) ss 5, 6, 6A; Status of Children Act 1974 (Tas) s 10C; Artificial Conception Act 1985 (WA) ss 5, 6; Family Relationships Act 1975 (SA) s 10C; Status of Children Act (NT) ss 5C, 5D. If the child is born to the surrogate mother as a result of natural conception with the intended father, the surrogate or birth mother will be a legal parent of the child. 50 In Victoria, it is referred to as a ‘substitute parentage order’ and in South Australia no specific title is conferred. 51 Surrogacy Act 2010 (Qld) ss 22, 39; Surrogacy Act 2010 (NSW) ss 12, 39; Status of Children Act 1974 (Vic) ss 22, 26; Parentage Act 2004 (ACT) s 26, 29; Family Relationships Act 1975 (SA) s 10HB(13); Surrogacy Act 2008 (WA) ss 19, 26; Surrogacy Act 2012 (Tas) s 26. 52 Millbank, above n 4, 175. 53 For example, in Queensland, an application may be made pursuant to s 41D of the Births, Deaths and Marriages Registration Act 2003 (Qld) to register the transfer of parentage. The order to do this emanates from the court; whereas in New South Wales the requirement to register emanates from the Surrogacy Act 2010 (NSW) s 49(1) which requires the registrar of the court to give notice of a parentage order made by the court to the Registrar of Births Deaths and Marriages. Similar provisions exist in the Parentage Act (2004) ACT s 47, Surrogacy Act 2012 (Tas) s 33, Family Relationships Act 1975 (SA) s 10HD, Surrogacy Act 2008 (WA) s 32. The Status of Children Act 1974 (Vic) s 31 67
inconveniences that could arise with school or sporting club registrations, service providers, health professionals and any other situation which requires either the production or lodgement of a birth certificate or proof of legal guardianship.54
1 State parentage orders In all jurisdictions, parentage orders are problematic where commercial surrogacy is involved, particularly where this has occurred overseas. For example, in Queensland, New South Wales, ACT, Victoria, South Australia and Tasmania, the court cannot make a parentage order if the parties have entered into a commercial surrogacy arrangement.55 There is no such limitation in Western Australia. However, a parentage order cannot be obtained in Western Australia unless the surrogacy arrangement has been approved by the Western Australian Reproductive Technology Council.56 There are a number of factors of which the Council must be satisfied before it will approve a surrogacy arrangement, many of which would be difficult to satisfy if the arrangement was carried out in an overseas jurisdiction such as India. For example, there must be a written agreement signed by the arranged parents, the birth mother and her partner, and any other person whose gametes are used and that person’s spouse.57 Further, there are requirements concerning the provision of counselling, legal advice, and medical and psychological assessment which must be satisfied three months prior to the arrangement being approved by the Council.58 There are also specific time requirements which must be adhered to concerning lodgement of applications for a parentage order.59 These requirements are difficult to satisfy in international surrogacy arrangements, particularly in the Indian context where procedures are tightly controlled by the surrogacy clinics, as revealed in chapter 5. Finally, it is unlikely the Reproductive Technology Council of Western Australia would approve an overseas commercial surrogacy arrangement, as
provides that the court must serve a sealed copy of the parentage order on the Registrar of Births Deaths and Marriages if the court has made a parentage order (referred to as a ‘substituted parentage order’ in Victoria.) 54 Ellison v Karnchanit [2012] FamCA 602[100]. 55 Surrogacy Act 2010 (Qld) s 22(2)(e)(vi); Surrogacy Act 2010 (NSW) s 23; Parentage Act 2004 (ACT) ss 24(c), 26(d); Status of Children Act 1974 (Vic) s 22(1)(d); Family Relationships Act 1975 (SA) ss10HA(2a)(i), 10HB(2)(a), 10HB(9)(c). 56 Surrogacy Act 2008 (WA) ss 16, 17. 57 Surrogacy Act 2008 (WA) s 17(b). 58 Ibid s 17(c). 59 For example, the application must be lodged within 28 days from when the child was born: Surrogacy Act 2008 (WA) s 20(2). 68
commercial surrogacy is an offence punishable by a fine or imprisonment in Western Australia.60
In addition to the arrangements not being commercial in nature, legislation in the ACT61 and South Australia,62 and Victoria63 specifically require that the child be conceived in that jurisdiction in order to obtain a parentage order in relation to that child.
The Northern Territory has no facility to make a parentage order following a surrogacy arrangement.
Despite the different approaches taken by the states and territories, a parentage order cannot be obtained if the parties enter into an overseas commercial surrogacy arrangement.
2 Parentage orders under the Family Law Act 1975 (Cth) Where intended parents to a surrogacy arrangement are unable to obtain a state parentage order in the jurisdiction in which they reside because the arrangement is commercial in nature, they can apply for a parenting order under the Family Law Act 1975 (Cth). Generally, s 65C(c) provides the applicants with standing to make the application provided they are persons concerned with the care, welfare or development of the child. Whilst parenting orders confer parental responsibility, including the duties, powers, responsibilities and authority which, by law, parents have in relation to children,64 they do not transfer parentage. This is significant as important rights accrue to children through their parents, as noted above, and the names on the child’s birth certificate are not altered.
3 Declaration of parentage under the Family Law Act 1975 (Cth) Between 2011 and 2017, there were a number of Family Court decisions concerned with the issue of whether a biological intended parent should be granted a declaration of parentage.65
60 Surrogacy Act 2008 (WA) s 8. See Table 2.2: Overview of offences. 61 Parentage Act 2004 (ACT) s 24(a). 62 Family Relationships Act 1975 (SA) ss10HA(2a)(h), 10HB(2)(a). 63 Status of Children Act 1974 (Vic) s 20(1)(a). 64 Family Law Act 1975 (Cth) ss 61B, 64B(1). 65 While a declaration of parentage pursuant to the Family Law Act 1975 (Cth) s 69VA allows the intended parents to overcome some of the shortfalls of a parenting order, it will not necessarily confer the same rights as a parentage order, as it only provides conclusive evidence of parentage for the 69
In some cases, the declaration sought was not granted because the specific provision of the Family Law Act the applicant was relying upon did not apply. For example, s 60H(1) of the Act provides that a child born under artificial reproductive technology is the child of the woman who gave birth and her partner if she has one, and not the donor of genetic material. In Gough and Kaur66 which involved a surrogacy arrangement in Thailand, Macmillan J found that the child was not the child of the male intended parent because he was not the partner of the woman who gave birth to the child as a result of an artificial conception procedure (the surrogate mother).
Other applicants have relied on s 60HB, which deals specifically with surrogacy arrangements. In Dudley v Chedi,67 Watt J refused to grant a declaration of parentage to the biological father of a child born through an overseas commercial surrogacy arrangement because his Honour found that s 60HB of the Family Law Act provides that state and territory legislation governs parentage of children born as a result of surrogacy arrangements. Section 60HB had no application in cases of overseas commercial surrogacy.68
In one case, a declaration was granted pursuant to s 69VA of the Family Law Act 1975 (Cth) on the basis that it was in the best interests of the child. 69 Section 69VA provides the court with power to issue a declaration of parentage after receiving evidence about the parentage of a child. In Green-Wilson & Bishop, Johns J granted a declaration of parentage to a male genetic father on the basis that the Victorian state legislation is silent about parentage of children born as a result of international commercial surrogacy arrangements, and international commercial surrogacy is not illegal in that jurisdiction.70
More recent decisions have determined that s 69VA of the Family Law Act is not applicable to international commercial surrogacy arrangements. In Bernieres &
purposes of all laws of the Commonwealth. As a result, matters governed by state and territory laws, such as medical treatment and intestacy, will only be acknowledged if the relevant state or territory legislation expressly incorporates s 69VA declarations. See Mary Keyes and Richard Chisholm, ‘Commercial Surrogacy – Some Troubling Family Law Issues’ (2013) 27 Australian Journal of Family Law 105. 66 [2012] FamCA 79. 67 Dudley v Chedi [2011] FamCA 502. 68 This view was subsequently confirmed in Bernieres & Dhopal [2017] FamCAFC 180. 69 Dennis & Pradchaphet [2011] FamCA 123; Ellison & Karnchanit (2012) 48 Fam LR 33. 70 Green-Wilson & Bishop [2014] FamCA 1031[41]. 70
Dhopal71 the trial judge, Berman J, found that s 69VA is not an independent source of power but requires ‘parentage’ to be in issue in respect to another matter before it is enlivened. In that case, Mr Bernieres was the biological parent of a child born as a result of a commercial surrogacy arrangement. Because there was no issue before the court about who the biological father was, s 69VA was not enlivened.72
The issue surrounding a declaration of parentage of children born as a result of international commercial surrogacy arrangements was clarified on appeal by the Full Court of the Family Court of Australia in Bernieres & Dhopal.73 Applying the rule of statutory construction, generalia specialibus non derogant — that is, that specific sections in legislation prevail over those of a more general nature — the court held that s 60HB provides that parentage of children born as a result of surrogacy agreements is regulated by state and territory legislation, children born as a result of conventional artificial conception procedures are addressed by s 60H, and s 69VA is not applicable in the circumstances.
Therefore, s 60HB specifically applies to parentage of children born as a result of surrogacy arrangements but does not provide the Family Court with power to confer parentage to intended parents whose children are born as a result of overseas commercial surrogacy arrangements.74 The more general provision of s 69 VA is not applicable to surrogacy because specific sections prevail, and s 60H applies to parentage of children born as a result of artificial conception procedures other than surrogacy arrangements.
4 Adoption Another means of obtaining parentage following a surrogacy arrangement is through adoption orders. Again, there are legislative hurdles primarily caused by a lack of definition of ‘parent’. In Re Blake,75 the applicant, Mr Blake was the defacto partner of Mr Marston, the biological father of twins born through a surrogacy procedure in
71 Bernieres & Dhopal (2015) 53 Fam LR 547. 72 It was also held that s 67ZC, which provides the court with jurisdiction to make orders relating to the welfare of children, was not applicable because the child was not a ‘child of the marriage’ as required by the legislation. 73 Bernieres & Dhopal [2017] FamCAFC 180. 74 The Surrogacy Act 2008 (WA) does not specifically prohibit a Western Australian state court from making a parentage order in relation to a commercial surrogacy arrangement. However, the conditions which must be satisfied to gain approval by the Reproductive Technology Council of Western Australia are so onerous it is extremely unlikely if not impossible to be met by an international commercial arrangement. 75 [2013] FCWA 1. 71
India. He sought orders relating to a step-parent adoption for the children. Under the Adoption Act 1994 (WA), Mr Blake had to show that he was not a birth parent or adoptive parent of the children and that he was the de facto partner of the child’s birth parent or adoptive parent. Mr Marston was not an adoptive parent of the children. Mr Blake therefore had to satisfy the court that Mr Marston was a ‘birth parent’.
Crisford J relied upon s 97ZC of the Family Law Act 1975 (Cth) which provides that the court can make orders relating to the welfare of children. The court noted that Mr Marston and Mr Blake had acted as parents to the children from their birth. ‘To suggest Mr Marston is anything other than a parent or a father within its ordinary meaning is to turn a blind eye to the reality of “family” in present day society.’76
However, it is questionable whether adoption is a reliable avenue through which to gain parentage in commercial surrogacy arrangements. Under adoption legislation, the birth mother of a child cannot choose the adoptive parents. The children must be surrendered to the state, which takes on the responsibility of placing the children.77 Step-parent adoptions are permitted in some jurisdictions if the person seeking to adopt the child is a spouse of a parent of the child, which, in the context of surrogacy, is difficult to prove without a transfer of parentage from the surrogate mother.78
Although one of the aims of surrogacy is to provide intended parents with a child of their own, there are legal constraints in achieving this. As well as issues relating to parentage, matters such as the right to citizenship and the content of birth certificates are also problematic. The following section addresses these issues.
C Citizenship A central issue faced by parents and children involved in overseas surrogacy arrangements is citizenship. Issues arise because a child is born in an overseas country to a woman who does not intend to take on the role of the child’s parent, yet citizenship is derived through parentage. Within the context of Indian commercial surrogacy, a child born to an Indian surrogate woman could be an Indian citizen under Australian law because parentage is attributed to the woman who bore the
76 [2013] FCWA 1 [51]. 77 Jenni Millbank, above n 4, 174. 78 Adoption Act 2009 (Qld) s 92. 72
child and her partner. Until parentage has been transferred from the surrogate mother and her partner to the Australian intended parents, the child has no right to Australian citizenship because he or she was born outside Australia and does not have a ‘parent’ who is an Australian citizen. The issue of citizenship is important and illustrative of the challenges faced by intended parents who engage in international commercial surrogacy arrangements. India is used to exemplify those challenges.
1 Australian citizenship If a child is born in Australia, and one or both of the child’s parents are Australian citizens or permanent residents when the child is born, the child will automatically become an Australian citizen.79 If a child is born outside Australia, application must be made to the Minister for Immigration and Border Protection. The most straightforward application is one for citizenship by descent because there are no adoption or residency requirements.80
Section 8 of the Australian Citizenship Act 2007 (Cth) governs children born as a result of artificial conception procedures or surrogacy arrangements. The section incorporates the Family Law Act 1975 (Cth) by restricting its application to children born to persons under ss 60H or 60HB of that Act. Neither of these sections apply to children born as a result of overseas commercial surrogacy arrangements.81 However, in some cases (particularly in India), children born through a surrogacy arrangement have been granted citizenship by descent.82
In order to be eligible for citizenship by descent, one of the parents of the child must be an Australian citizen at the time e the child is born.83 The word ‘parent’ is not defined in the Australian Citizenship Act 2007 (Cth).84 Prior to the decision of H v
79 Australian Citizenship Act 2007 (Cth) s 12. 80 Ibid s 16(2). 81 Section 60HB only applies to surrogacy arrangements where a state or territory court has made an order that a person is the child’s parent. A state parentage order will not be made where the child is born as a result of a commercial surrogacy arrangement. Sections 60H and 69VA do not apply to international commercial surrogacy arrangements: Bernieres & Dhopal [2017] FamCAFC 180. 82 Ronalds & Victor [2011] FamCA 389; Blake and Anor [2013] FCWA 1; Mason v Mason [2013] FamCA 424. 83 Australian Citizenship Act 2007 (Cth) s 16(2). 84 However, ‘responsible parent’ is defined in s 6 and includes a parent, a person with whom the child is living under a parenting order, a person who has parental responsibility for the long-term or day to day care, welfare or development of the child, or a person who has guardianship or custody of the child. This assists with determining who can sign the form for an application for citizenship by descent of a child under 16 years of age, but not with who is a ‘parent’ for the purposes of satisfying the requirements of citizenship by descent. 73
Minister for Immigration and Citizenship 85 in 2010, ‘parent’ was interpreted as being a biological parent unless there was ‘an express contrary intention in a specific provision’. However, the Citizenship Policy, issued by the Department of Immigration and Border Protection in 2016,86 provides that the meaning of ‘parent’ for citizenship purposes adopts the ordinary usage of the word as reflected by the Full Federal Court in H v Minister for Immigration and Citizenship87 where it was stated that being a parent may depend on various factors including matters of a social, legal and biological nature. Evidence as to the proposed parents’ conduct before, at the time of, and after the birth is relevant to this decision.88 Therefore, the Citizenship Policy makes provision for non-biological parents which can occur in surrogacy arrangements if neither intended parent is able to provide gametes for the fertilisation procedure.
However, the requirement that at least one of the parents of the child must be an Australian citizen at the time the child is born is problematic in the international commercial surrogacy context. The Full Federal Court in H v Minister for Immigration and Citizenship noted that this requirement is open to two interpretations. The first is that the person who is the child’s parent at the time of the application for citizenship must have been an Australian citizen when the child was born. The second and preferred interpretation is that the person who is the child’s parent at the time the child is born must be an Australian citizen at that time. In a surrogacy situation, the child’s parents at the time the child is born will depend on the law in the country where the surrogacy arrangements take place. Under Australian law, the child’s parents would be the surrogate mother and her partner or husband if she has one. If the child is born in a surrogacy arrangement in India, it is unlikely either of those persons will be Australian citizens. Therefore, under Australian law, the child born as a result of an international commercial surrogacy arrangement may be ineligible for citizenship by descent.89
85 Department of Immigration and Border Protection, Commonwealth of Australia, Citizenship Policy, 217 https://www.border.gov.au/Citizenship/Documents/acis-june-2016.pdf. 86 Department of Immigration and Border Protection, Commonwealth of Australia Citizenship Policy, 217 https://www.border.gov.au/Citizenship/Documents/acis-june-2016.pdf. 87 [2010] FCAFC 119 [129]. 88 H v Minister for Immigration and Citizenship [2010] FCAFC 119 [130]. 89 Hudson v Minister for Immigration and Citizenship [2010] FCAFC 119. 74
The Citizenship Policy provides some relief for children born under circumstances of international commercial surrogacy. In determining the child’s parents, a court order or other evidence from the country where the child is born indicating the person applying has parental responsibility may satisfy the application requirements. However, even this poses potential difficulties because under Indian law or regulation, it is unclear whether, at the time the child is born, the child is the child of the surrogate mother, who subsequently relinquishes her maternal rights, or the child of the intended parents. Citizenship challenges such as a lack of synchronicity between the Australian Citizenship Act 2007 (Cth) and administrative decisions relating to citizenship have been identified in the literature.90 The irregularities surrounding parentage in the Indian surrogacy context are illustrated in the following section.
2 Citizenship in India A child born in India after 2004 is an Indian citizen if both parents are Indian citizens or if one parent is an Indian citizen and the other parent is not an illegal migrant at the time the child is born.91 While this appears straightforward, it is complicated when interpreted in the context of surrogacy because of the uncertainty in determining the child’s parents. If the child’s parents are the surrogate mother and her partner if she has one, the child will be an Indian citizen due to the citizenship of his or her parent(s). However, if the Australian intended parents are considered to be the parents of the child, the child is unlikely to be an Indian citizen. It is necessary to outline the Indian regulatory system relating to surrogacy in order to explain the complexity.
In 2005, the Ministry of Health and Family Welfare (Government of India) published the National Guidelines for Accreditation, Supervision & Regulation of Assisted Reproductive Technology (ART) Clinics in India (‘National Guidelines’).92 While the National Guidelines do not have legislative force, its role was to regulate
90 Millbank, above n 4, 200; Jenni Millbank, ‘Unlikely Fissures and Uneasy Resonances: Lesbian Co- Mothers, Surrogate Parenthood and Fathers’ Rights’ (2008) 16 Feminine Legal Studies 141; Jenni Millbank, ‘Recognition of Lesbian and Gay Families in Australian Law – Part Two: Children’ (2006) 34 Federal Law Review 205, 232–241. 91 Citizenship Act 1955 India s 3; Usha Rengachary Smerdon, ‘Birth Registration and Citizenship Rights of Surrogate Babies Born in India’ 20(3) Contemporary South Asia 341, 343. 92 Indian Council of Medical Research, ‘National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India’, Ministry of Health and Family Welfare, Government of India (2005) http://icmr.nic.in/art/Prilim_Pages.pdf. 75
and supervise ART clinics in order to provide safe ethical services.93 The Guidelines placed no restrictions on eligibility. The Assisted Reproductive Technologies (Regulation) Bill 2008 was drafted in 2008 and modified but not passed in 2010. In 2012, the Indian government placed eligibility restrictions on access to commercial surrogacy in India.94 Further restrictions occurred in 2015, when the Ministry of Home Affairs (Foreign Division) disseminated a circular advising that no visas or other permissions to enter India be granted to foreigners for the purpose of commercial surrogacy, and that current visas be cancelled. Exit permissions for children born through a surrogacy arrangement were to be determined on a case by case basis by the Foreign Review Office. The National Guidelines were to still be followed except to the extent of any inconsistencies to the circular.95
The most recent iteration of proposed surrogacy legislation in India is the Surrogacy (Regulation) Bill 2016. The central tenet of the proposed legislation is to ‘prohibit commercial surrogacy and allow ethical surrogacy to needy infertile Indian couples’.96 The Bill has been approved by the Union Cabinet but not yet passed as law.97 Presently, surrogacy is regulated by the instructions outlined in the 2015 circular in conjunction with the National Guidelines. Where the documents are inconsistent, the instructions contained in the circular prevail.
Prior to 2013 commercial surrogacy in India was readily accessed by Australian intended parents. Under the National Guidelines, the birth certificate pertaining to a
93 National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India, Ministry of Health and Family welfare of India and Indian Council of Medical Research (2005), Preliminary pages, x http://icmr.nic.in/art/art_clinics.htm 94 The Indian government, through the Ministry of Home Affairs, advised that applicants had to be in a heterosexual married relationship for at least two years, and produce a letter from their home country advising that children born as a result of surrogacy arrangements in India would be recognised. The visa requirements for intended parents were changed from a ‘tourist’ visa to a ‘medical’ visa. Pande cites the year the restriction was imposed as 2012; however Jackson et al cite it as 2013. Pande, above n 45, 246; Emily Jackson, Jenni Millbank, Isabel Karpin et al, ‘Learning from Cross-Border Reproduction’ (2017) 25(1) Medical Law Review 23, 24. 95 Letter from B V R Murthy (Under Secretary to the Govt. of India) to All Indian Missions/Posts abroad, All State Governments/Union Territory Administrations, FRROs – Delhi, Mumbai, Chennai, Kolkata, Amritsarm Bangalore, Hyderabad, Kochi, Thiruvananthapuram, Calicut, Goa, Lucknow and Ahmedabad, 3 November 2015 in Government of India Ministry of Home Affairs (Foreigners Division), F No 25022/74/2011-F1 attached to Circular No 462. http://www.mea.gov.in/surrogacy- matters.htm. 96 The Surrogacy (Regulation) Bill 2016 (Department of Health Research, Ministry of Health & Family Welfare, Government of India (published) 16 September 2016 http://www.dhr.gov.in/documents/acts-circulars; Rituparna Bhattacharyya, ‘Draft Surrogacy (Regulation) Bill 2016: Rhetoric or Surrogate-centric?’ (2016) 4(2) Space and Culture, India 9, 11. 97 Press Information Bureau, Government of India Cabinet, 24 August 2016; http://pib.nic.in/newsite/PrintRelease.aspx?relid=149186 76
child born as a result of a commercial surrogacy arrangement issued in the names of the ‘genetic parents’.98 Neither the clinic nor the intended parents had the right to know the donor’s identity and address,99 and the surrogate mother’s eggs were not to be used in the pregnancy.100 Further, the donor(s) and surrogate mother had to relinquish all parental rights concerning the child born as a result of the surrogacy arrangement.101 From this, it can be concluded that parentage under the National Guidelines rested with the intended parents.
However, case law on this point suggests parentage in the context of commercial surrogacy arrangements was not settled. In the case of Balaz v Anand Municipality,102 the question for the court was whether children born to an Indian surrogate mother using the biological material of an Indian egg donor and the German intended father, were Indian citizens. The question turned on whether one of the children’s parents was an Indian citizen. The findings of the court were that the children were citizens of India because both the gestational surrogate mother and the egg donor were Indian citizens. The court’s preferred view was that the surrogate mother was the mother of the children but noted that ‘either way, the mother of the babies is an Indian national’.103 Further, the court noted that it cannot be presumed that a child born to a surrogate mother is the legitimate child of the intended parents.
The findings in Balaz v Anand Municipality were inconsistent with the National Guidelines which governed surrogacy at the time. However, at this time, if the intended parents were Australian citizens and could provide evidence that the child was the biological child of at least one of them (if there were two), and that the intended parent was also recognised as the legal parent of the child, the child would be conferred Australian citizenship by descent, provided further general
98 National Guidelines for Accreditation, Supervision & Regulation of ART Clinics in India, Ministry of Health and Family Welfare of India and Indian Council of Medical Research, Chapter 3.5.4. 99 Ibid, Chapter 3.5.13. 100 Chapter 3.5.4 of the National Guidelines states that an oocyte donor cannot act as a surrogate mother for the couple to whom the oocyte is being donated. 101 National Guidelines for Accreditation, Supervision & Regulation of ART Clinics in India, Ministry of Health and Family Welfare of India and Indian Council of Medical Research, Chapter 3.5.4. 102 No. 3020, Special Civil Application (Gujarat H.C. 2008) [20]. The court found that ‘in the absence of any legislation to the contrary, we are more inclined to recognise the gestational surrogate who has given birth to the child as the natural mother’ [16]. 103 Jan Balaz v Anand Municipality. Letters Patent Appeal No. 2151 of 2009 in Special Civil Application No. 3020 of 2008 [17]. 77
documentation pertaining to citizenship by descent was submitted.104 DNA test results had to be provided in support of the biological connection between the intended parent and the child.105 In addition, documentation from a panel lawyer expert in family law and/or contract law had to be provided.106
Australian case law does not reveal particular difficulties relating to citizenship where surrogacy arrangements occurred in India provided there was a biological connection between the child and at least one of the intended parents. However, the judgments are often silent in this regard, as the issue before the court concerned the welfare of the child and whether a parental order should be made.107 Further, if intended parents from Queensland, New South Wales and the Australian Capital Territory had engaged in illegal conduct by entering into commercial surrogacy arrangements, they may have chosen not to face the court.108 There are cases involving intended parents from countries other than Australia where the uncertainty of citizenship has caused significant hardship and the children concerned were at risk of being left stateless. 109
D Birth Certificates A significant controversy confronting the commercial surrogacy landscape is the issue of birth certificates. With the structure of the family unit evolving, the meaning of the word ‘parent’ has changed, particularly over the past two decades. While a ‘parent’ need not be genetically connected to his or her child, in Australia the intention of the parties does not determine the legal issue of parentage in a surrogacy arrangement.110 Parentage lies with the woman who gave birth to the child and her partner if she has one. The question of whether parentage can be transferred to the intended parents has been discussed. However, a further complexity arises in the
104 Commonwealth Government, Australian High Commission India, Children Born Through Surrogacy Arrangements, 25 June 2013, http://www.india.embassy.gov.au/ndli/vm_surrogacy.html. 105 Ibid 106 Ibid. 107 Wilkie v Mirkja [2010] FAMCA 667; Edmore v Bala [2011] FAMCA 731. However, see Ronalds v Victor [2011] FAMCA 389 [2] where it is stated that ‘Australian citizenship and passports were arranged’ although no further detail as to how this was achieved is provided. See also Re Blake [2013] FCWA1[8]. 108 The Family Law Council suggests that there are many parents who have engaged in overseas commercial surrogacy arrangements who do not apply for parenting orders. See section 3.1. 109 Jan Balaz v Anand Municipality. Letters Patent Appeal No. 2151 of 2009 in Special Civil Application No. 3020 of 2008; Baby Manji Yamada v Union of India (AIR 2009 SC 84; 13 SCC 518). 110 Intention of the parties is a significant factor in California: Johnson v Calvert 5 Cal.4th 84, 851 P.2d 776. 78
registration of the birth of the child. Where the surrogacy arrangement occurs in India, it is unclear whose names should be entered on the birth certificate. Further, registration of names on an Indian birth certificate does not translate to registration of an Australian birth certificate, nor does it necessarily certify parentage. This is discussed below.
1 Australian birth certificates In Australia, under the Family Law Act 1975 (Cth), ‘if a person’s name is entered as a parent of a child in a register of births, or parentage information is kept under Australian legislation’, or in a ‘prescribed overseas jurisdiction’, it is presumed that the person is a parent of the child pursuant to s 69R. ‘Prescribed overseas jurisdiction’ is any country or part of a country outside Australia that is declared by the regulations to be a ‘prescribed overseas jurisdiction’.111 Regulation 14 of the Family Law Regulations provides the meaning of ‘prescribed overseas jurisdiction’. However, there is no reference to a prescribed overseas jurisdiction for the purpose of s 69R. It is unlikely the names of children born as a result of overseas commercial surrogacy arrangements will be entered in a register kept under Australian legislation. Therefore, the inclusion of the name of an intended parent on an overseas birth certificate is not necessarily proof of parentage pursuant to the Family Law Act 1975 (Cth). Intended parents whose names appear on birth certificates following surrogacy arrangements in any country, which is not prescribed by the Family Law Regulations, cannot be presumed to be the legal parents of the child.112
2 Indian birth certificates The regulatory schemes in India are inconsistent in their approach to registration of birth certificates in the surrogacy context. The National Guidelines provide, in chapter 3, that the birth certificate of a child born as a result of a surrogacy arrangement shall issue in the name of the genetic parents.113 Following DNA proof
111 Family Law Act 1975 (Cth) s 4. 112 In Re Grosvenor [2017] FamCA 366, the court ordered that orders made by a court in North Carolina, USA, that the intended father be declared the genetic and legal father of the child and the intended mother declared the legal mother, be registered in the registry of the Family Court pursuant to s 70G of the Family Law Act 1975. It should be noted that North Carolina is a ‘prescribed jurisdiction’ within Regulation 14 Family Law Regulations. See also Re Halvard [2016] FamCA 1051. 113 Interestingly, if the male intended parent’s partner is a woman and she provided her eggs as part of the surrogacy arrangement, under the National Guidelines, her name should appear on the birth certificate. However, this is contrary to the court’s finding in Balaz v Anand Municipality where the 79
that there is a genetic connection between an intended parent and the child, the names of the intended parent(s) were generally registered on the birth certificate.114 This was condoned in the context of Australian intended parents because the Australian High Commission in India was prepared to grant babies born to Australian intended parents as a result of commercial surrogacy arrangements in India, citizenship by descent provided there was sufficient DNA proof of a genetic connection.
However, s 2(1) (a) of the Birth and Death Registration Act 1969 (India) defines a ‘birth’ as being ‘a live birth or a still birth’. Section 2(1)(d) defines a ‘live birth’ as ‘the complete expulsion or extraction from its mother of a product of conception, irrespective of the duration of pregnancy, which, after such expulsion or extraction, breathes or shows any other evidence of life’. The wording of this section associates the word ‘mother’ with the woman who gave birth to the child. Therefore, for the purpose of the Birth and Death Registration Act 1969 (India) the surrogate mother is the child’s mother, because she gave birth to the child, and should be so registered on the birth certificate. This supports the findings in Balaz v Anand Municipality.115
However, as noted above, this is not reflected in the National Guidelines which state that the birth certificate should reflect the names of the ‘genetic parents’. 116
E Summary of Legal and Practical Problems Arising from Commercial Surrogacy Arrangements The aim of this part of chapter 2 is to highlight the legal and practical problems which can arise as a result of Australian intended parents engaging in off-shore commercial surrogacy arrangements, in particular (but not exclusively) arrangements which have taken place in India. While restrictions have now been imposed on intended parents travelling to India and Thailand, other countries with low regulatory schemes such as Mexico and Ukraine provide an avenue for the commercial
court found that the surrogate, the woman who carried and gave birth to the child, was the child’s mother. 114 Ronalds v Victor [2011] FamCA 389. 115 No. 3020, Special Civil Application (Gujarat H.C. 2008) [20]. The court found that ‘in the absence of any legislation to the contrary, we are more inclined to recognise the gestational surrogate who has given birth to the child as the natural mother.’ [16]. 116 National Guidelines for Accreditation, Supervision & Regulation of ART Clinics in India, Ministry of Health and Family Welfare of India and Indian Council of Medical Research, chapter 3.5.4. 80
surrogacy industry to relocate.117 International commercial surrogacy presents a number of legal and practical challenges. It is necessary to highlight these problems because the prohibition of commercial surrogacy in Australia contributes to international travel for this purpose, which, in turn, creates problems for the parties involved.
Regarding parentage, the legal problem is transferring legal parentage from the surrogate mother and her partner if she has one to the intended parents, and the practical problem is where a surrogacy arrangement is commercial in nature, parentage cannot be transferred. The intended parents can obtain an order for parental responsibility which allows them to make day to day decisions concerning the welfare of the child but does not transfer legal parentage. This, in turn, means that the child may face future challenges in the context of intestacy and benefits from welfare payments, such as child support.
Regarding citizenship, the legal problem is obtaining citizenship for the child in a context that conflicts with the Australian Citizenship Act 2007, and the practical problem is that without citizenship the child risks being ‘stateless’.
Regarding birth registration, the legal problem is that it is unclear who should be registered as the child’s parents on the birth certificate of a child born as a result of a commercial surrogacy arrangement in India, and the practical problem is that there is an inconsistent approach surrounding registration of birth and this has contributed to uncertainties and delays in obtaining citizenship.
This part of the thesis contributes to scholarly knowledge by placing in context the legal and practical problems that the law relating to commercial surrogacy in Australia presents. This lays the foundation for further research about whether the prohibition of commercial surrogacy in Australia is justified within the parameters of this thesis.
The next section of this thesis examines the policies and values that underpin the prohibition of commercial surrogacy in Australia to ascertain why Parliament has criminalised surrogacy once payment (exceeding reasonable expenses) is involved.
117 Standing Committee on Social Policy and Legal Affairs, The Commonwealth of Australia House of Representatives, Surrogacy Matters, Inquiry into the Regulatory and Legislative Aspects of International and Domestic Surrogacy Arrangements (2016) 27. 81
A brief history of the development of the legislation relating to surrogacy is discussed, followed by the examination of secondary material relating to each legislated jurisdiction.
IV POLICIES AND VALUES UNDERPINNING THE LEGISLATIVE FRAMEWORK
A Historical Perspective Surrogacy as a concept is not new and has been practised in various forms since biblical times.118 However, in the mid-1980s two cases stimulated the surrogacy debate at an international level.119 In 1985, in the United Kingdom, the Baby Cotton case120 ignited interest in surrogacy when a birth mother, Kim Cotton, relinquished parental rights in her child to another couple who removed the child from the United Kingdom. The controversy became known in the media as the ‘baby for cash deal’.121 The Baby M case122 concerned the emotional tug of war in the United States between a surrogate mother who changed her mind about relinquishing the baby, and the intended parents. Allegations of baby-selling, degradation of women, and harm to children were repeatedly reported by the media.123 Combined with advances in medical technology, increased infertility and fewer children available for adoption, an interest in surrogacy as an alternative form of reproductive technology, which could allow for a genetic relationship between the child and the intended parents, began to grow. 124
Australian developments. In 1984, Victoria was the first jurisdiction in Australia to introduce legislation which related to surrogacy,125 with South Australia126 and
118 The infertile woman, Sarah, gave her maidservant, Hagar, to her husband Abraham for the purpose of a child being conceived and born to Sarah and Abraham. However traditional ‘adoption’ practiced by the Torres Strait Islander communities known as Kupai Omasker are supported by the Family Law Act 1975 (Cth) s 61F. See Catherine Brown, ‘The Queensland Investigation into the Decriminalisation of Altruistic Surrogacy’ (2008) 29 The Queensland Lawyer 78, 82. 119 Re Baby M (1988) 537 A 2d 1227; Re C (A Minor) (Wardship: Surrogacy) [1985] FLR 846. In 1998, Australia experienced its only litigated surrogacy case in Re Evelyn (1998) 23 Fam LR 53. 120 Re C (A Minor) (Wardship: Surrogacy) [1985] FLR 846. 121 BBC, On This Day (4 January 1985) BBC Home
Queensland127 following in 1988. Any form of surrogacy was an offence in Queensland, whether commercial or altruistic. Victoria 128 and South Australia 129 did not expressly prohibit altruistic surrogacy but both had legislation relating to Assisted Reproductive Technology (ART) which provided that a woman could not undergo an IVF procedure unless she had been diagnosed as infertile, which clearly precluded surrogate mothers from undergoing such treatment. While only three jurisdictions had enacted legislation that impacted on surrogacy by 1988, there had been a number of parliamentary inquiries and law reform commission reports into this issue. Many had expressed negative views about this form of infertility treatment.130 In 1990, the National Bioethics Consultative Committee issued two reports which recommended the facilitation of altruistic surrogacy subject to controls.131 In response to this, the Australian Health Ministers Advisory Council
126 Family Relationships Act Amendment Act 1988 (SA). Commercial surrogacy was prohibited under s 10h. 127 Surrogate Parenthood Act 1988 (Qld). Commercial surrogacy was prohibited under s 3. 128 Infertility (Medical Procedures) Act 1984 (Vic.). 129 Reproductive Technology Act 1988 (SA) (repealed): s 13(3)(b) stated that artificial fertilisation procedures cannot be carried out except for the benefit of married couples where the husband or wife (or both) appear to be infertile or there appears to be a risk that a genetic defect would be transmitted to a child conceived naturally. While it is arguable that carrying out artificial fertilisation procedures on a third party surrogate mother could be ‘for the benefit’ of a married couple in the circumstances stated, the intention of that section was that the treatment procedures be carried out on the infertile partner or partners of the marriage. In 2009, the Act was amended by the Reproductive Technology (Clinical Practices) (Miscellaneous) Amendment Act 2009 (SA) (No. 43 of 2009) so that assisted reproductive treatment could be applied if a woman who would be the mother of any child born as a consequence of the assisted reproductive treatment is or appeared to be infertile. This allowed the Family Relationships Act 1975 (SA) to be amended by the Statues Amendment (Surrogacy) Act 2009 (No 64 of 2009) s 10 to allow for recognised surrogacy agreements. 130 Family Law Council, Creating Children: A Uniform Approach to the Law and Practice of Reproductive Technology in Australia (1985), referred to in the Parliament of South Australia Legislative Council, Social Development Committee, Inquiry into Gestational Surrogacy 26th Report (13 November 2007) 18; New South Wales Law Reform Commission, Artificial Conception: Human Artificial Insemination, Report 49 (1986); Western Australia Committee to Inquire into the Social Legal and Ethical Issues relating to In Vitro Fertilisation and its Supervision, Report (1986) referred to in Select Committee on the Human Reproductive Technology Act 1991, Legislative Assembly Parliament of Western Australia, Select Committee on the Human Reproductive Technology Act 1991 Report (22 April 1999) 245; Select Committee on Artificial Insemination by Donor, Legislative Council, Parliament of South Australia, In-Vitro Fertilisation and Embryo Transfer Procedures and Related Matters Report (April 1987) 10 referred to in Social Development Committee, Parliament of South Australia Legislative Council, Inquiry into Gestational Surrogacy 26th Report (13 November 2007) 18; New South Wales Law Reform Commission, Artificial Conception: Surrogate Motherhood, Report 60 (1988); New South Wales Law Reform Commission, Artificial Conception: In vitro fertilisation, Report 58 (1988); Health Department of Western Australia, Legislative Assembly, Report to the Minister for Health for Western Australia from the Reproductive Technology Working Party Report (1988) referred to in Select Committee on the Human Reproductive Technology Act 1991, Legislative Assembly Parliament of Western Australia, Select Committee on the Human Reproductive Technology Act 1991 Report (22 April 1999) 245. 131 National Bioethics Consultative Committee, Commonwealth of Australia, Surrogacy – Report 1 (1990) and National Bioethics Consultative Committee, Commonwealth of Australia, Surrogacy – 83
established a National Reproductive Technology Working Group which reported to the Australian Health and Welfare Ministers. The terms of reference were to examine, inter alia, those aspects of the National Bioethics Consultative Committee reports relating to surrogacy and to ‘propose a national approach for legislation and policy’.132 The Working Group recommended that surrogacy arrangements be illegal and void. In addition, it recommended that it should be an offence to arrange or induce persons to engage in surrogacy services or make any payment of money in relation to such services, provide technical or professional services to facilitate surrogacy, and publish material in relation to entry into surrogacy arrangements.133 The main concerns held by the Working Group relating to the surrogate mother included the financial exploitation of surrogate women, especially those from lower socio-economic backgrounds, the emotional coercion and psychological harm to women who may be pressured into being surrogates, and the effect of relinquishment on the birth mother and her existing family.134
In response to the report, the Australian Capital Territory enacted the Substitute Parent Agreements Act 1994 (ACT)135 which prohibited commercial surrogacy136 but not altruistic surrogacy, although advertising 137 and procuring any surrogacy agreements was an offence.138 Tasmania passed legislation relating to surrogacy in 1993139 which made it an offence to induce another to enter into a surrogacy contract. The provision of technical or professional services and advertising in relation to surrogacy arrangements was expressly prohibited.140
In 2004, following repeal of the Substitute Agreements Parent Act 1994 (ACT) and the passing of the Parentage Act 2004 (ACT) the Australian Capital Territory became the first jurisdiction to provide for the transfer of parentage from the
Report 2 (1990) referred to in Victorian Law Reform Commission, Assisted Reproductive & Adoption, Final Report (2007) 164. 132 National Reproductive Technology Working Group, Report to Joint Session of Health and Welfare Ministers (25 March 1991) 1. 133 Ibid. 134 Ibid 22. 135 Australian Capital Territory Law Reform Commission, Substitute Parentage Agreements, Report No 20 (2003). 136 Substitute Parent Agreements Act 1994 (ACT) s 5. 137 Ibid s 6. 138 Ibid s 7. 139 Surrogacy Contracts Act 1993 (Tas). 140 Ibid ss 5, 6. 84
surrogate mother and her partner to the intended parents.141 By 2008, Victoria,142 South Australia143 and Western Australia144 had enacted similar legislation. Queensland repealed the Surrogate Parenthood Act 1988 (Qld) and enacted new legislation in 2010, 145 which also provided for the transfer of parentage in certain circumstances, as did New South Wales.146 However, commercial surrogacy remained prohibited in all states and territories.
The views of the 1991 Working Group in relation to commercial surrogacy were reaffirmed in 2009 when the Joint Working Group of the Standing Committee of Attorneys-General, Australian Health Minister’s Conference and the Community and Disability Services Minsters’ Conference published a report titled ‘A Proposal for a National Model to Harmonise Regulation of Surrogacy’. In recognition of the advances in reproductive medicine and more infertile couples seeking to become parents through surrogacy arrangements, the Working Group considered regulating the practice of surrogacy under a national model.147 Commercial surrogacy was to be prohibited under the model on the basis it ‘commodifies the child and the surrogate mother and risks the exploitation of poor families for the benefit of rich ones’.148 It was thought that the introduction of a residency requirement in addition to counselling would preclude the exploitation of women in third world countries.149
By 2012, all Australian states and the Australian Capital Territory had enacted legislation regulating altruistic surrogacy and prohibiting commercial surrogacy. Underpinning the surrogacy legislation are the National Health and Medical Research Council (NHMRC) guidelines which relate to ART. The NHMRC is a Commonwealth statutory authority which supports health and medical research, develops health advice for the government and the community, and provides ethical
141 Parentage Act 2004 (ACT) ss 23-29. The Parentage Act 2004 (ACT) s 51 repealed the Substituted Parent Agreements Act 1994 (ACT). 142 Status of Children Act 1974 (Vic) s 20 as amended by Assisted Reproductive Treatment Act 2008 (Vic) s 147 (No. 76/2008). 143 Statutes Amendment (Surrogacy) Act 2009 (SA) s10 (No. 64/2009). 144 Surrogacy Act 2008 (WA) s12. 145 Surrogacy Act 2010 (Qld) s 22. 146 Surrogacy Act 2010 (NSW) s 12. The Surrogacy Act 2010 (NSW) repealed the surrogacy-specific provisions in the Assisted Reproductive Technology Act 2007 (NSW) which had prohibited commercial surrogacy. 147 Standing Committee of Attorney’s-General Australian Health Ministers’ Conference Community and Disability Services Ministers’ Conference Joint Working Group, A Proposal for a National Model to Harmonise Regulation of Surrogacy (January 2009) 2. 148 Ibid 5. 149 Ibid 14. 85
advice in the conduct of health and medical research.150 The guidelines prohibit ART clinics from engaging in commercial surrogacy, stating that such arrangements are ethically unacceptable. While altruistic surrogacy is not prohibited, the guidelines note these arrangements are controversial and should not be undertaken unless participants have had counselling and possess a ‘clear understanding of the ethical, social and legal implications’.151 To date, the Northern Territory is the only jurisdiction in Australia which has no legislation specifically relating to surrogacy. As such, surrogacy in that jurisdiction is regulated by the NHMRC.
The following section outlines specific reviews and inquiries that were carried out between 1983 and 2016 to isolate the reasons provided by the various committees for continuing the prohibition on commercial surrogacy in Australia, and the values upon which those reasons were based. In doing so, it explores RQ 3.
B Legislative Reviews, Government Committees, Law Reform Commission Reports and Other Government Inquiries A number of legislative reviews,152 committees of inquiry,153 and legal and ethical debates154 are identified and explored in the literature. There is limited discussion in Parliament or in the public arena on the specific topic of commercial surrogacy (as opposed to altruistic surrogacy). Until the Commonwealth inquiry in 2016, the terms of reference of committees of inquiry had not specifically included the issue of whether or not commercial surrogacy should be legalised. As such, it has been argued that the legislative response to commercial surrogacy appears to be based on an assumed ‘moral viewpoint’,155 rather than a view based upon open discussion and submissions from the public. This section outlines those aspects of the reviews and inquiries which relate to the prohibition of commercial surrogacy on a jurisdictional.
150 Australian Government, National Health and Medical Research Council Homepage (last updated 12 May 2015) http://www.nhmrc.gov.au. 151 National Health and Medical Research Council, Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research (2007) https://www.nhmrc.gov.au/guidelines-publications/e78. 57. These guidelines are currently under review. 152 See Tammy Johnson, ‘Queensland’s Proposed Surrogacy Legislation: An Opportunity for National Reform’ (2010) 17(4) Journal of Law and Medicine 617, 618. 153 See Anita Stuhmcke, ‘For Love or Money: The Legal Regulation of Surrogate Motherhood’, above n 2, [9]. 154 For examples of earlier legal and ethical debate on the topic of surrogacy both in Australia and overseas, see Stuhmcke, ‘Surrogate Motherhood: The Legal Position in Australia’, above n 2, 123; Stuhmcke, ‘The Criminal Act of Commercial Surrogacy in Australia — A Call for Review’, above n 2; Stuhmcke, ‘For Love or Money: The Legal Regulation of Surrogate Motherhood’, above n 2. 155 Anita Stuhmcke, ‘Surrogacy Motherhood: The Legal Position in Australia’, above n 2, 118. 86
1 Queensland In 1983, the Queensland Parliament appointed a ‘Committee to Enquire into the Laws Relating to Artificial Insemination, In Vitro Fertilisation and Other Related Matters’.156 The Committee was chaired by Mr Justice Demack, and the report, known as the Demack Report, recommended it should be ‘illegal to advertise to recruit women to undergo surrogacy pregnancy, or to provide facilities for persons who wish to use the services of such women’ and that ‘ethical guidelines should be established for the provision of medical services which involve surrogacy arrangements’.157
The next inquiry in Queensland came about in 1998, in response to the government’s failure to include issues relating to women’s concerns in reform packages that were carried out in the early 1990s. The Minister for Justice and Attorney-General and the Minister for Women’s Policy (at the time) established a taskforce to report and make recommendations on the impact of the Criminal Code on women. The terms of reference were broad and covered three major areas: ‘Women as Accused’, ‘Women as Victims’ and ‘Court Practices and Procedures.’158
Surrogacy was examined on the basis that it affects a woman’s control over sexuality and reproduction. Other areas examined by the taskforce included abortion and genital mutilation.159 The taskforce’s report in 2000 noted that it ‘had not considered seriously the option of legalising commercial surrogacy’ because they did not believe it would meet with community acceptance.160 However, it was further reported that ‘the community appears to accept payments being made to adoption agencies and fertility clinics but not to women who are prepared to change their lives for nine months to carry a child’. The report viewed gestational surrogacy on a mass scale, incorporating the use of poor women in third world or war-ravaged countries gestating genetic children of rich western couples at exploitative rates. These
156 Committee to Enquire into the Laws Relating to Artificial Insemination, In Vitro Fertilisation and Other Related Matters, Queensland Parliament, Report of the Special Committee Appointed by the Queensland Government to Enquire into the Laws Relating to Artificial Insemination, In Vitro Fertilisation and Other Related Matters (1984). 157 Ibid. 158 The Taskforce on Women and the Criminal Code, Queensland Government Office of Women’s Policy, Department of Equity and Fair Trading, Report on the Taskforce on Women and the Criminal Code (2000) i. 159 Ibid 352. 160 Ibid 380. 87
concepts were considered intolerable by the taskforce and would not meet with community acceptance in Australia.161
On 14 February 2008, the Queensland premier at the time, Anna Bligh, tabled in Parliament a Background Paper titled ‘Altruistic Surrogacy in Queensland’. Whilst acknowledging that commercial surrogacy was illegal across Australia, the Background Paper specifically omitted the consideration of commercial surrogacy.162 This was based on the principle ‘that a person’s reproductive capabilities should not be exploited for commercial gain’.163 The Paper implied that the government does not unnecessarily intrude into the private lives of families except to protect the best interests of the child, clarify the legal parentage of the child, and minimise the risk of disagreement between the parties.164
On that day, the Legislative Assembly appointed the Investigation into Altruistic Surrogacy Committee. The role of the Committee was to report on the decriminalisation of altruistic surrogacy, the criteria to be met, the legal rights and responsibilities of the parties, and the rights of the child to genetic information.165
Premier Bligh noted at the time that:
the legalisation of commercial surrogacy will not be a matter for consideration by the committee. My government firmly believes that no-one should be able to make a commercial profit from their reproductive capacities, and that is not an issue that we intend to be revisited.166
In relation to altruistic surrogacy, the Committee recommended that the Queensland Government articulate five key policy principles in its surrogacy legislation. These were:
• Every child is nurtured, loved and supported • Every child has access to his/her identity
161 Ibid. 162 Legislative Assembly Queensland Parliament, Altruistic Surrogacy in Queensland Background Paper 2993 (2008) 3. 163 Queensland, Parliamentary Debates, 14.2.2008, 224–5 (Anna Bligh, Premier) 164 Legislative Assembly Queensland Parliament, Altruistic Surrogacy in Queensland Background Paper 2993 (2008) tabled in the Legislative Assembly on 14 February 2008 by Premier Anna Bligh. 165 Surrogacy Bill 2009 (Qld). 166 Queensland, Record of Proceedings, Legislative Assembly, 14 February 2008, 224-5, Premier Anna Bligh. 88
• Every child enjoys the same status and legal protection irrespective of the circumstances of his/her birth or the status of their parents • The long-term health and wellbeing of the parties to a surrogacy arrangement and their families is promoted • The autonomy of consenting adults in their private lives is respected.167
These principles are embodied in the Surrogacy Act 2010 (Qld).168 While the legalisation of commercial surrogacy was not considered by the Committee, some recommendations supported the government’s opposition to such arrangements, and were affirmed by the government in its response to the Committee’s report.169 For example, the Committee recommended using the term ‘intending parents’ rather than ‘commissioning parents’ in order to avoid a perception of commercialised language.170 The prohibition of advertising and brokerage for altruistic surrogacy was recommended by the Committee171 and supported by the government, which noted that such prohibition would ‘help prevent the commercialisation of surrogacy’.172 These are not particularly strong statements, which is a reflection of the lack of open discussion the Queensland government has afforded to the subject of commercial surrogacy.
2 New South Wales The New South Wales Law Reform Commission released a report into IVF in 1986.173 Two further reports were published in 1988 which touched upon surrogacy as well as other matters in relation to ART.174 While the 1986 report did not explore
167 Investigation into Altruistic Surrogacy Committee, Queensland Parliament, Investigation into the Decriminalisation and Regulation of Altruistic Surrogacy in Queensland (October 2008) Recommendation 9, ii. 168 The first two points concerning the welfare of the child are broadly reflected in the Surrogacy Act 2010 (Qld) ss 6(2) (a) (i), (ii) and (iii). The third, fourth and fifth points are reflected in ss 6 (2) (b), (c) and (d). 169 Government Response to the Report of the Investigation into Altruistic Surrogacy Committee, Investigation into the Decriminalisation and Regulation of Altruistic Surrogacy in Queensland, tabled in the Legislative Assembly on 23 April 2009, Premier Anna Bligh, 2. 170 Investigation into Altruistic Surrogacy Committee, Queensland Parliament, Investigation into the Decriminalisation and Regulation of Altruistic Surrogacy in Queensland (October 2008) Recommendation 2, 2. 171 Ibid 8, 38. 172 Government Response to the Report of the Investigation into Altruistic Surrogacy Committee, Investigation into the Decriminalisation and Regulation of Altruistic Surrogacy in Queensland, tabled in the Legislative Assembly on 23 April 2009, Premier Anna Bligh, 5. 173 New South Wales Law Reform Commission, Artificial Conception: Human Artificial Insemination, Report 49 (1986). 174 New South Wales Law Reform Commission, Artificial Conception: In Vitro Fertilisation, Report 58 (1988); New South Wales Law Reform Commission, Artificial Conception: Surrogate Motherhood, Report 60 (1988). 89
commercial surrogacy, the 1988 report into IVF expressed concern at the potential for the ‘use of IVF in conjunction with surrogacy as a tool to exploit women from poor countries or lower classes, who would be used as surrogates for wealthier families’.175 The second 1988 report, on surrogate motherhood, referred to commercial surrogacy, recommending its prohibition and all forms of advertising in relation to it. It was noted that the most consistent argument against the use of surrogacy concerned the potential to exploit the women and children involved, although an analysis of the submissions by the Commission indicated that the community saw as much potential for exploitation in both paid and unpaid surrogacy. Cultural and ethnic discrimination was one of the bases for the exploitation debate.176 There was no legislation enacted dealing with assisted reproductive technologies following the release of these reports.
In 1998, the New South Wales Health Department issued a discussion paper to ‘consider the question of whether any regulation of the provision of assisted reproductive technologies was necessary, and, if so, in what form’.177 The discussion paper refers to recommendations made by the New South Wales Law Reform Commission in its 1988 report on surrogate motherhood that commercial surrogacy be prohibited in all forms so as to prevent the rise of surrogacy brokering which, at the time, had been occurring in the United States. The Commission identified five aspects of commercial surrogacy which supported its prohibition, as follows:
• It permits profit to be made from the creation and transfer of custody of a child. • It entails the use of a woman’s body, and of human gametes, for commercial purposes. • It creates a ‘profit motive’ that encourages persons, mainly potential surrogates, to enter into surrogacy arrangements. • The receipt of money may inhibit those immediately involved in the arrangement in reconsidering their decisions. Whether or not it is well-founded, a payment of money to the surrogate mother may lead her to believe that she cannot withdraw from the arrangement.
175 New South Wales Law Reform Commission, Artificial Conception: In Vitro Fertilisation, Report 58 (1988) 3.2.1. 176 New South Wales Law Reform Commission, Artificial Conception: Surrogate Motherhood, Report 60 (1988) 3.7. 177 New South Wales Department of Health, Review of the Human Tissue Act 1983 Discussion Paper: Assisted Reproductive Technologies (1998) [1.2] http://web.archive.org/web/19980707163913/http://www.health.nsw.gov.au/corporate- services/legal/art/artpart1.html#anchor40844. 90
• It is tantamount to a trade in women and children which has never been countenanced in Australian society. 178
The discussion paper also listed arguments both supporting and opposing a prohibition of surrogacy in any form. Again, the arguments against surrogacy related to devaluing the bodies of women, relegating them to the role of incubator and using them as a means to an end, exploitation of the surrogate mother by commercial agents and oppressive restrictions being placed upon her, harm to the surrogate mother in the form of psychological trauma associated with relinquishment of the child, treating children as commodities, and challenges to the concepts of marriage and family.179 The Assisted Reproductive Technology Act 2007 (NSW) was passed and assented to in December 2007. The Act prohibited commercial surrogacy and advertising of commercial surrogacy services. 180
Following the release of a Legislative Council Committee report in 2009 that recommended the enactment of legislation that specifically addressed the transfer of parentage in an altruistic surrogacy arrangement,181 New South Wales passed the Surrogacy Act 2010 (NSW) and repealed the surrogacy-specific provisions in the Assisted Reproductive Technology Act 2007 (NSW).
One of the objects stated in the Surrogacy Bill 2010 (NSW) was to prohibit commercial surrogacy arrangements. No explanation about the motivation for this object is provided in the explanatory notes. However, in presenting the Bill for its second reading, The Hon. John Hatzistergos (the Attorney-General at the time) noted that the guiding principle of the bill was that the best interests of children born as a result of surrogacy arrangements are paramount.182 The Attorney-General further
178 New South Wales Law Reform Commission, Artificial Conception: Surrogate Motherhood, Report 60 (1988) 4.11 referred to in New South Wales Department of Health, Review of the Human Tissue Act 1983 Discussion Paper: Assisted reproductive Technologies (1998) [9.5] http://web.archive.org/web/19980707163913/http://www.health.nsw.gov.au/corporate- services/legal/art/artpart1.html#anchor40844.
179 New South Wales Department of Health, Review of the Human Tissue Act 1982 Discussion Paper: Assisted Reproductive Technologies (1998) [9.1] http://web.archive.org/web/19980707164129/http://www.health.nsw.gov.au/corporate- services/legal/art/artpart9.html#anchor170434. 180 Assisted Reproductive Technology Act 2007 (NSW) ss 43, 44. 181 Standing Committee on Law and Justice, Legislation on Altruistic Surrogacy in New South Wales (New South Wales Parliament Legislative Council, 2009). 182 New South Wales, Parliamentary Debates, Legislative Council, 21.10.2010, 26544, (John Hatzistergos, Attorney General). 91
noted that making commercial surrogacy an offence ‘aims to prevent the commercialisation of human reproduction’.183 He referred to the Standing Committee of Attorneys-General discussion paper published in 2009, which stated that ‘commercial surrogacy commodifies the child and the surrogate mother, and risks the exploitation of poor families for the benefit of rich ones’.184 There is an extra-territorial prohibition on commercial surrogacy which was introduced by the then Minister for the State Plan and Minister for Community Services, Ms Linda Burney, which was to protect the exploitation of vulnerable women, particularly those in poor or developing countries.185 In addition, a parentage order cannot be obtained if the surrogacy arrangement is commercial in nature.186
3 Australian Capital Territory The transfer of parentage following a surrogacy arrangement in the ACT is governed by the Parentage Act 2004 (ACT). Essentially, the Act consolidated the provisions of the Artificial Conception Act 1985, the Birth (Equality of Status) Act 1988 and the Substitute Parent Agreements Act 1994 into one statute.187 The explanatory memorandum to the Parentage Bill states that the main purpose of the bill is ‘to remove discrimination relating to sexuality and relationship status’.188 At the time, the Artificial Conception Act 1985 (ACT) which was repealed in 2004 by the Parentage Act, provided an avenue for intended parents (referred to in the legislation as ‘substitute parents’) to obtain a parentage order.189 When making an order under the legislation, one of the matters the court was required to take into consideration was whether payment or reward (other than reasonable expenses) had been made by the substitute parents for the birth parents.190 In addition, at the time, the Substitute Parent Agreements Act 1994, which was also repealed by the Parentage Act, prohibited a resident of the ACT engaging in commercial surrogacy191 both within
183 New South Wales, Parliamentary Debates, Legislative Council, 21.10.2010, 26547, (John Hatzistergos. Attorney General). 184 New South Wales, Parliamentary Debates, Legislative Council, 21.10.2010, 26547 (John Hatzistergos, Attorney General) refers to Standing Committee of Attorneys-General Australian Health Ministers’ Conference Community and Disability Services Ministers’ Conference, Joint Working Group, A Proposal for a National Model to Harmonise Regulation of Surrogacy (January 2009) 4–5. 185 New South Wales, Hansard, Legislative Assembly, 10 November 2010 (Ms Linda Burney) referred to in Family Law Council, Report on Parentage and the Family Law Act (2013) 66. 186 Surrogacy Act 2010 (NSW) s 23. 187 Explanatory Memorandum, Parentage Bill 2003 (ACT) 2. 188 Ibid. 189 Artificial Conception Act 1985 (ACT) ss 10,11 (repealed). 190 Ibid s 11(3)(d) (repealed). 191 Substitute Parent Agreements Act 1994 s 5 (repealed). 92
and outside that jurisdiction.192 The prohibition on commercial surrogacy and the extra-territorial application of the offence was reinstated from the repealed Substitute Parent Agreements Act 1994 (ACT) into the current Parentage Act 2004 (ACT).
Underpinning policies supporting the continuation of the prohibition are revealed in the Australian Capital Territory Law Reform Commission’s 2003 report on Substitute Parentage Agreements.193 The primary objections to commercial surrogacy outlined in the report are:
• The absence of adequate licensing which would expose emotionally vulnerable people to exploitation for the purpose of material gain. • The lack of a continuing relationship between the surrogate mother and the child. • The likelihood of disputes over parenthood. • The possibility of disputes over payment of fees.
4 Tasmania During the second reading of the Surrogacy Contracts Bill (No 2) 1992 (Tasmania), it was stated that the reasons the government believed surrogacy should be prohibited are that children can be treated as commodities through surrogacy arrangements, the paramount interest in surrogacy arrangements is that of the infertile couple and not the child, surrogate motherhood attacks the basic concept of marriage and the family, surrogacy is contrary to the appropriate perception of the woman’s body, and surrogacy has implications for the societal perceptions of the role of women and women as mothers.194 While the bill did not intend to penalise those who entered into altruistic surrogacy arrangements, an interesting viewpoint that emerged from the debates was an assertion that money made the surrogacy relationship more dispassionate, therefore altruistic surrogacy was potentially more emotional and stressful than surrogacy of a commercial nature.195
192 Ibid s 4 (repealed). 193 Australian Capital Territory Law Reform Commission, Substitute Parentage Agreements Report No. 20 (2003). 194 Tasmania, Parliamentary Debates Second Reading Speech House of Assembly, 11 November 1992, 19-71, Roger Groom, Minister for Community Services. 195 Tasmania, Parliamentary Debates Second Reading Speech House of Assembly, 11 November 1992, 19-71, Judy Jackson, Member for Denison. 93
In 2008, the Legislative Council Select Committee was appointed to investigate how surrogacy should be addressed in Tasmania, whether current statutes required amendment and the consequences of implementing such changes, the status of children born through surrogacy and the interaction between state and federal legislation, the efficacy of surrogacy legislation in other jurisdictions, and the possibility of a national scheme.196 The Committee was of the view that the best interests of the children born as a result of surrogacy arrangements should be the priority of the legislators.197 It was also noted that ‘community values within Australia are rightly set against the commodification of children and the exploitation of socially and economically disadvantaged women’.198
In 2011, the Surrogacy Bill 2011 (No 7) and the Surrogacy (Consequential Amendment) Bill 2011 (No 8) were introduced into the Tasmanian Parliament. On 14 June 2011, the Bills were referred to the Government Administration Committee ‘A’, for the purpose of scrutinising the surrogacy bills as introduced to the Legislative Council by the Tasmanian Government.199 In its report, the Committee acknowledged that commercial surrogacy was an offence under the bill, and that this was consistent with NHMRC guidelines which warn that commercial surrogacy is ‘ethically unacceptable’. Apart from a reference to the tolerance of commercial surrogacy in California, there is no further discussion by the Committee on that point.200 However, there was a strong emphasis on the interests of the child in the report. Concern was expressed that the bills, rather than dealing with the interests of the child, placed more emphasis on the interests of the surrogate mother and the intended parents.201 A number of amendments to the bills were recommended and the Committee concluded that further consideration of the bills was required by Parliament. On 29 April 2013, it was proclaimed that the Surrogacy Act 2012 (Tas) would commence on 1 May in that year. Commercial surrogacy remains an offence.
196 Legislative Council Select Committee, Parliament of Tasmania, Report on Surrogacy (July 2008) 2. 197 Ibid 31. 198 Ibid 32. 199 Legislative Council Government Administration Committee ‘A’, Parliament of Tasmania, Inquiry into Surrogacy Bill 2011 and Surrogacy (Consequential Amendments) Bill 2011 (2011) 4. 200 Legislative Council Government Administration Committee ‘A’, Parliament of Tasmania, Inquiry into Surrogacy Bill 2011 and Surrogacy (Consequential Amendments) Bill 2011 (2011) 28. 201 Ibid 7. 94
5 Victoria In October 2002, the Attorney-General for Victoria requested an inquiry by the Victorian Law Reform Commission into changes to the Infertility Treatment Act 1995 and the Adoption Act 1984 that would expand the eligibility criteria for assisted reproductive technology and consequential amendments to related Acts. Position Paper 3, which specifically related to surrogacy, was published in November 2005. 202 The Terms of Reference of Position Paper 3 required the Commission to ‘consider the meaning and efficacy of s 59 of the Infertility Treatment Act in relation to altruistic surrogacy’.203 Section 59 stated that
a person must not make, give or receive … a payment or reward in relation to … a surrogacy agreement or an arrangement to act as a surrogate mother.204
A penalty of two years imprisonment was imposed for breaching the section. The Paper noted that commercial surrogacy was illegal both within Australia, the UK, and various US states. The approach taken by the NHMRC guidelines that the practice is unethical was also noted. However, there was no discussion of, or research into, why commercial surrogacy should be prohibited except to adopt the recommended guiding principle in Position Paper 1 that:
at no time should the use of reproductive technologies be for the purpose of exploiting (in trade or otherwise) either the reproductive capabilities of men and women or the children resulting from ART.205
This became one of the guiding principles of the Assisted Reproductive Treatment Act 2008 (Vic).
In 2007, the Victorian Law Reform Commission published its final report into Assisted Reproductive Technology and Adoption.206 Chapter 18 concerned surrogacy expenses. In line with Position Paper 3, the Commission recommended
202 Victorian Law Reform Commission, Assisted Reproductive Technology and Adoption, Position Paper No 3: Surrogacy (2005). 203 Ibid 20. 204 Ibid. 205 Victorian Law Reform Commission, Assisted Reproductive Technology and Adoption, Position Paper No 3: Surrogacy (2005) 20. Position Paper 1 contained the Victorian Law Reform Commission’s interim recommendations in relation to access and eligibility criteria for assisted reproductive technology. 206 Victorian Law Reform Commission, Assisted Reproductive Technology and Adoption, Final Report (2007) 95
that the surrogate mother must not receive payment as a result of her role.207 This view is reflected in the legislation today.
6 South Australia The Social Development Committee of South Australia delivered its report on an ‘Inquiry into Gestational Surrogacy’ in 2007.208 The Committee accepted that commercial surrogacy should be prohibited as indicated in the many previous inquiries that had taken place209 and existing state legislation.210 However, there was no requirement in the Inquiry’s terms of reference for the Committee to specifically consider the matter. The issue of whether, if surrogacy is permitted, it should be provided without a financial benefit was discussed.211 However, this was in the context of the types of expenses which the Committee regarded as being legitimate, rather than whether the practice of commercial surrogacy should continue to be prohibited. At the time of the Inquiry, women who acted as surrogate mothers were forced to travel interstate to seek the necessary IVF treatment because, pursuant to the legislation at the time, a woman could only seek infertility treatment if she was infertile or there was a risk she would transmit a genetic defect to the child if
207 Ibid 182. 208 Social Development Committee, Parliament of South Australia, Inquiry into Gestational Surrogacy 26th Report (13 November 2007). 209 Social Development Committee, Parliament of South Australia, Inquiry into Gestational Surrogacy 26th Report (13 November 2007) 18, 19 citing Family Law Council, Creating Children: A Uniform approach to the Law and Practice of Reproductive Technology in Australia (1985) cited in Select Committee of the Legislative Council on Artificial Insemination by Donor, South Australia Parliament, Legislative Council, In-Vitro Fertilisation and Embryo Transfer Procedures and Related Matters in South Australia Report (April 1987) 10; New South Wales Law Reform Commission, Surrogate Motherhood, Report No. 60, NSW Government Printer, 1988; The National Bioethics Consultative Committee, Surrogacy Report 1, Commonwealth of Australia (April 1990); Select Committee on the Human Reproductive Technology Act 1991, Legislative Assembly, Parliament of Western Australia, Select Committee on the Human Reproductive Technology Act 1991 Report (22 April 1999); The Victorian Law Reform Commission, Assisted Reproductive Technology & Adoption: Final Report (2007). 210 Social Development Committee, Parliament of South Australia, Inquiry into Gestational Surrogacy 26th Report (13 November 2007) 22. At the time, commercial surrogacy was prohibited in Victoria (Infertility Treatment Act 1995); Queensland (Surrogate Parenthood Act 1988); Tasmania (Surrogacy Contracts Act 1993) and the Australian Capital Territory (Parentage Act 2004). At the time, the Surrogacy Bill 2007 was before the Western Australian Parliament. 211 Social Development Committee, Parliament of South Australia, Inquiry into Gestational Surrogacy 26th Report (13 November 2007) 58. 96
conceived naturally.212 It was considered that these travel expenses should be recoverable. 213
Surrogacy legislation in South Australia was reformed in 2009 by the Statutes Amendment (Surrogacy) Act 2009 (SA). Recognised surrogacy agreements, as defined in the current legislation are permitted; however Commercial surrogacy continues to be prohibited.214
7 Western Australia In 2008, the Western Australian Standing Committee on Legislation published its report in relation to the Surrogacy Bill 2007. The report noted that a ‘fundamental objective of the legislation was to make commercial surrogacy illegal’215 but, apart from discussing an appropriate meaning to be attributed to surrogacy arrangements for reward,216 there is no further discussion about why commercial surrogacy was prohibited.
However, in the 2014 review of the Surrogacy Act 2008 (WA) by the Minster for Health,217 two out of the seven recommendations related to international commercial surrogacy arrangements and the social, psychological and legal impact they have on Australian society.218 Of the 17 submissions received by the Minister, 7 considered the continued prohibition of commercial surrogacy arrangement was important and 3 proposed its legalisation in Australia.219 Those who supported controlled commercial surrogacy in Australia did so on a harm-minimisation basis, arguing it would reduce the number of Australian intended parents seeking commercial surrogacy off-shore where there is the potential for exposure to unsafe and unethical practices and difficulties establishing legal parentage for the child. Opponents to this suggestion argue that it could induce vulnerable needy women within Australia to act as
212 Reproductive Technology (Clinical Practices) Act 1988 (SA). The section was repealed in 2009 by the Reproductive Technology (Clinical Practices) (Miscellaneous) Amendment Act 2009 (SA) s 9. 213 Social Development Committee, Parliament of South Australia, Inquiry into Gestational Surrogacy 26th Report (13 November 2007) 59. 214 Family Relationships Act 1975 (SA) ss10H, 10HA. 215 Standing Committee on Legislation, Western Australian Legislative Assembly, Report 12 Standing Committee on Legislation in Relation to the Surrogacy Bill 2007 (May 2008) 25. 216 Ibid 24-28. 217 Surrogacy Act 2008 (WA) s 45 requires the Minister to carry out a review of the operation and effectiveness of the Act four years after its commencement. 218 Office of the Chief Medical Officer Department of Health (on behalf of the Minister for Health), Review of Surrogacy Act 2008 Report to the Western Australian Parliament (November 2014) 3 (Recommendations 3 and 5). 219 Ibid 17. 97
surrogate mothers. Seven submissions suggested there should be an extra-territorial prohibition on residents of Western Australia engaging in off-shore surrogacy arrangements. 220
It is apparent from the report that the number of intended parents who engaged in overseas commercial surrogacy arrangements was significant, citing over 200 surrogacy births to Australian intended parents in India and Thailand in 2012 and 2013.221 In particular, the report noted the concerns held by the Family Law Council of Australia about exploitation of surrogate women and the Council’s desire for an ‘international regulatory response’.222 The report also referred to research undertaken by India’s Centre for Social Research which suggested surrogate women in India are poor ‘and needed money for their family, housing, education, or to settle their husband’s debts’. The women felt they had no choice but to become surrogates and faced ostracism by their community for being involved in these arrangements.223
Risks of exploitation of participants in international commercial surrogacy arrangements, uncertainty of legal parentage and nationality of the child and failure to protect (the child’s) right as to biological and genetic identity’ were considered to be of public concern.224
8 Family Law Council The Family Law Council issued a report on parentage and the Family Law Act 1975 (Cth) in December 2013.225 Prohibition of commercial surrogacy was not part of the Council’s terms of reference. However, the issue was addressed due to the significant number of submissions the Council received that related to commercial surrogacy.226 Many community concerns surrounded the vulnerability of children born as a result of these arrangements. Those opposing commercial surrogacy thought that transfers of parentage should be restricted to altruistic surrogacy
220 Office of the Chief Medical Officer Department of Health (on behalf of the Minister for Health), Review of Surrogacy Act 2008 Report to the Western Australian Parliament (November 2014) 19. 221 Ibid 18. 222 Ibid 22. 223 Ibid 21 citing Centre for Social Research, Surrogacy Motherhood: Ethical or Commercial (2012) www.womenleadership.in/Csr/SurrogacyReport.pdf; Sharvari Karandikar et al, ‘Economic Necessity or Noble Cause? A Qualitative Study Exploring Motivations for Gestational Surrogacy in Gujarat, India’ 29 Affilia: Journal of Women and Social Work 224. 224 Office of the Chief Medical Officer Department of Health (on behalf of the Minister of Health), Review of Surrogacy Act 2008 Report to the Western Australian Parliament (November 2014) 22. 225 Family Law Council of Australia, Report on Parentage and the Family Law Act (2013). 226 Ibid 63. 98
arrangements only, but many were concerned by the legislative void for parentage if the state or territory legislation did not apply.227 It was proposed that the Family Court should have power to transfer parentage from the surrogate mother (and her partner if she has one) to the intended parent(s), provided safeguards are in place to protect the surrogate mother and the children. 228
It was noted that Australians are more likely to enter into surrogacy arrangements overseas than within Australia,229 and in most cases the arrangements are commercial in nature.230 Exploitation of surrogate women, particularly poor women in countries with little surrogacy regulation, was a concern raised in many submissions received by the Council. Cases of women being trafficked for use as surrogates, and intended parents abandoning babies born as a result of commercial surrogacy arrangements were described. 231
Legalisation of commercial surrogacy in Australia was raised. Reasons supporting this proposition included the ineffectiveness of the system of prohibition and lack of prosecution for engaging in commercial surrogacy arrangements. It was also noted that legalisation would enable proper safeguards to be put in place to protect the parties to the arrangements. However, there was opposition to this on the basis that it breached the Convention on the Rights of the Child.232 The Council was of the view that prohibition or regulation of commercial surrogacy is a matter for the government 233 and noted:
the importance of protecting the child’s right to know of their birth parentage, the concerns expressed about the potential for exploitation of surrogates, and the need to ensure that children enjoy the same status, protection and support irrespective of the circumstances of the child’s birth. 234
227 Ibid 76-77. 228 Ibid 78. 229 Ibid 64. 230 Ibid 61. 231 Ibid 83. 232 Ibid 88. 233 Ibid 83. 234 Ibid 99 citing Explanatory Notes Surrogacy Bill 2009 (Qld) p5. 99
9 NHMRC In April 2013, a Working Committee was established 235through which the NHMRC developed a ‘framework for ethical behaviour in health care and in the conduct of ethical research’.236 Following public consultation and consideration of submissions, the NHMRC developed and released its updated Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research on 20 April 2017. The 2017 Guidelines reflect the previous guidelines, which were revised in 2007, by maintaining the ethically unacceptable status of commercial surrogacy and advising that clinicians must not practise, promote or recommend the practice.237 However, in order to meet their ethical obligations, the Guidelines suggest the clinicians may provide information to persons who have entered into overseas commercial surrogacy arrangements ‘in the interest of minimising the potential for harm’ without facilitating the process in any way.238 While not condoning the practice, the NHMRC has recognised that commercial surrogacy is being practiced by Australians abroad, and that clinicians have an ethical obligation to protect those who enter into these arrangements from potential harm.
10 Commonwealth Inquiry In December 2015, the Commonwealth Attorney-General requested an ‘inquiry and report on the regulatory and legislative aspects of international and domestic surrogacy arrangements’.239 In April 2016, the Standing Committee on Social Policy and Legal Affairs (‘the Committee’) delivered its report. ‘International surrogacy and Australia’s international obligations’ was one of three matters on which the Committee reported. The report recommended that the prohibition of commercial surrogacy in Australia continue.240 The reasons provided in the report provide more insight than previous inquiries. For instance, the Committee noted the emergence of unscrupulous operators who target low-income women in those jurisdictions in the
235 The Working Committee advised the Australian Health Ethics Committee (AHEC) on the ‘review of the ethical guidelines on the clinical practice of ART (Part B of the ART guidelines)’. The NHMRC takes the advice provided to the AHEC to develop its frameworks. 236 Australian Government, National Health and Medical Research Council, Development of the 2017 ART Guidelines https://www.nhmrc.gov.au/health-ethics/ethical-issues-and-further- resources/assisted-reproductive-technology-art/development. 237 Ibid 65. 238 Ibid117. 239 Standing Committee on Social Policy and Legal Affairs, The Parliament of the Commonwealth of Australia House of Representatives, Surrogacy Matters, Inquiry into the Regulatory and Legislative Aspects of International and Domestic Surrogacy Arrangements (April 2016). 240 Ibid (xi). 100
United States that permit commercial surrogacy.241 It expressed concern that legalising commercial surrogacy in Australia would create incentive for surrogacy agents to operate in poorly regulated low-cost jurisdictions (such as those in developing countries) which, in turn, risks infringement of the rights of the child and surrogate mother. In the context of exploitation of the surrogate mother, the Committee identified the risk of consent being compromised due to language barriers, economic need, and lack of education. It found that this could lead to surrogate women undergoing procedures they might have refused if they were better informed such as ‘multiple embryo transfers, caesarean deliveries timed to fit the travel schedule of the intended parents or selective reduction of foetuses’.242 It was noted that prohibiting commercial surrogacy has not been a deterrent to intended parents engaging in overseas commercial surrogacy arrangements, and that this is likely to continue. For the past decade, Australian intended parents have accessed commercial surrogacy in Thailand, India, Nepal, Cambodia, Mexico and Ukraine.243 India, Thailand and Nepal are no longer accessible to Australian intended parents244 although ‘the mobility of the international surrogacy industry means changes to laws or practice in one country will often result in the relocation of the business to a more hospitable jurisdiction where regulatory regime may be weaker’.245 Therefore, it is important the parties involved are aware of the risks they potentially face.246
C Summary of Policies and Values Underpinning the Australian Legislative Framework Analysis of the secondary material suggests as far back as 1988 a prominent value informing understandings of commercial surrogacy was its association with the exploitation of surrogate women from lower socio-economic backgrounds.247 Other
241 Ibid 25. 242 Ibid 27. 243 Ibid 26. 244 Commercial surrogacy is illegal in Thailand and Cambodia. See Australian Government Department of Foreign Affairs and Trade Smartraveller.gov.au, International Surrogacy (15 May 2017) http://smartraveller.gov.au/bulletins/Pages/surrogacy.aspx. India has introduced a Bill which makes commercial surrogacy illegal. Visas are no longer available to foreigners who intend to visit India for the purpose of commissioning surrogacy; although Pande asserts India continues to offer package deals to foreigners. Amrita Pande, above n 45, 247. 245 Standing Committee on Social Policy and Legal Affairs, The Parliament of the Commonwealth of Australia House of Representatives, Surrogacy Matters, Inquiry into the Regulatory and Legislative Aspects of International and Domestic Surrogacy Arrangements (2016) 27. 246 Ibid 23, 31, 32. 247 New South Wales Law Reform Commission, Artificial Conception: In Vitro fertilisation Report 58 (1988); New South Wales Law Reform Commission, Artificial Conception: Surrogate Motherhood 101
early concerns relating to the surrogate mother included using a woman’s body for commercial purposes, creating a profit motive for entry into surrogacy agreements, and devaluing women to the role of an incubator. Concerns about children included permitting profit being made from trade in children and treating children as commodities. Concerns about the lack of a continuing relationship between the child and the surrogate mother were also raised in early 2000.248
Exploitation of surrogate women, commodification of children, and commercialisation of reproduction were common and prominent values which appeared throughout the many inquiries and law reform reports over the following decades. As Australian intended parents began to engage in overseas surrogacy arrangements in India and Thailand, community concerns about exploitation of poor women became more apparent in the submissions made to law reform commissions and government committees of inquiry.249 Exploitation of surrogate women in India was associated with lack of choice and poverty and was a powerful and influential value underpinning the prohibition of commercial surrogacy.
V CHAPTER FINDINGS AND CONCLUSIONS
This chapter explored Research Questions 1, 2 and 3. Section II explored Research Question 1 by identifying and analysing the commercial surrogacy legislative framework throughout Australia. This provided a foundation upon which doctrinal legal research and analysis could be built, in particular enabling an exploration of the legal and practical problems created by the legal prohibition of commercial surrogacy and the values underpinning the prohibition.
Report 60 (1988); National Reproductive Technology Working Group, Report to Joint Session of Health and Welfare Ministers (25 March 1991). 248 Australian Capital Territory Law Reform Commission, Report on Substitute Parentage Agreements (2003). 249 Standing Committee on Social Policy and Legal Affairs, The Parliament of the Commonwealth of Australia House of Representatives, Surrogacy Matters, Inquiry into the Regulatory and Legislative Aspects of International and Domestic Surrogacy Arrangements (2016); Family Law Council, Report on Parentage and the Family Law Act (2013); Office of the Chief Medical Officer Department of Health (on behalf of the Minister for Health), Review of Surrogacy Act 2008 Report to the Western Australian Parliament (November 2014). Concerns about the identify of children and their legal status in terms of citizenship and parentage emerged as issues of concern relating to children born as a result of commercial surrogacy arrangements; however, that is outside the scope of this thesis. 102
Following this, section III synthesised the legislative frameworks about parentage, citizenship and registration of birth in the context of commercial surrogacy. It then conducted doctrinal legal analysis of key principles in the legislative frameworks, centring on three major legal and practical problems: transfer of parentage, obtaining citizenship in order to allow the child to exit India, and the inconsistencies surrounding registration of birth in this context. In doing so, it has generated answers to Research Question 2 about the legal and practical problems presented by the law relating to commercial surrogacy in Australia.
Section IV identified and analysed primary and secondary sources concerning the prohibition of commercial surrogacy in Australia to identify the policies and values underpinning the prohibition. The analyses identified that concerns about the exploitation of surrogate women was a current and dominant value in this context. This finding addresses Research Question 3; and informs and provides the foundation for Research Questions 5, 6 and 7: namely the nature of exploitation (RQ 5); whether surrogate women in India are exploited (RQ 6); and whether surrogate women in India who are exploited are harmed (RQ 7). These questions are addressed in chapters 4, 5 and 6.
Whether the value of exploitation justifies the prohibition of commercial surrogacy will depend upon whether there is evidence that exploitation is in fact occurring, and if so, under what circumstances, its nature, and, importantly, whether it causes harm to Indian surrogate women. This thesis employs a framework of Mill’s harm principle which asserts that the only reason the state can interfere with the conduct of a person is if the conduct causes harm to others. The following chapter analyses the concept of Mill’s harm principle and establishes parameters within which harm can be evaluated in the context of Indian commercial surrogate women. Chapter 3 lays a further foundation upon which Research Question 7 can be explored.
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CHAPTER 3: MILL’S HARM PRINCIPLE
I INTRODUCTION: THE NATURE OF MILL’S HARM PRINCIPLE, AND ITS RELEVANCE FOR THIS THESIS
Chapter 3 explores the concept of harm and addresses Research Question 4: What is John Stuart Mill’s harm principle? Determination of the nature and extent of harms experienced by commercial surrogate mothers, and accordingly the justifiability or legitimacy of legal prohibitions on commercial surrogacy, requires a theoretical reference point to identify and measure harm. For the purpose of this thesis, the classical liberal theorist John Stuart Mill’s harm principle has been selected as the normative theoretical framework to explore the meaning of harm and its consequences for evaluation of the law’s justifiability. In section I of this chapter, Mill’s harm principle is introduced by outlining the concept and implications of the principle. Then, in section II, the harm principle is dissected and synthesised to isolate those elements that are relevant to the consideration of harm in the context of commercial surrogacy. Particular attention is paid to the concepts of the agents who may be affected by the harm principle and the sources of intervention in terms of how the person alleged to be doing the harm is refrained; interests which can be harmed; and what constitutes harm. Conceptual conclusions about the application of the harm principle to the context of commercial surrogacy are drawn and used to formulate a definition of harm for the purpose of this thesis. The synthesis in this chapter of the harm principle is informed by research into the primary source literature, namely Mill’s texts. The discussion and analysis of the components of the harm principle, and its challenging conceptual and operational aspects, are informed by research into secondary sources from political philosophy and ethics. Section III applies the concepts articulated in section II to develop a formula that can be applied to the experiences of Indian commercial surrogate women.
The harm principle provides a powerful argument to support the prohibition of an activity which inflicts sufficient harm on other parties beyond herself or himself. Equally, if the harm to others is not demonstrated, Mill’s harm principle protects purely self-regarding conduct, and non-harmful other-regarding activity, from state 104
interference. However, Feinberg, a well-respected critic of Mill, regards Mill’s harm principle as too vague and in need of criteria for the purpose of assessment.1 Other critics argue that the harm principle is too broad because anything one does will impact on others, or that it lacks clarity as to what harm actually means.2 This chapter engages with these criticisms so that an application of the harm principle in the context of commercial surrogacy can be formulated.
The harm principle. In his classic essay, On Liberty, Mill enunciated the harm principle, stating that:
The sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection…the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant … He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil in case he do otherwise. To justify that, the conduct from which it is desired to deter him, must be calculated to produce evil to someone else. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.3
Fundamentally, Mill asserted that people should be free to do as they wish as long as they do not harm others. Therefore, it is only when a person’s actions cause harm to others that interference by the liberal state is warranted. In essence, Mill developed
1 Joel Feinberg, Harm to Others: The Moral Limits of the Criminal Law (Oxford University Press, 1984) 12. 2 J C Rees, ‘A Re-Reading of Mill on Liberty’ in John Gray and G W Smith (eds), J.S. Mill on Liberty in Focus (Routledge, 1991) 169, 171-174 refers to James Fitzjames Stephen, Liberty, Equality, Fraternity (Smith & Elder, 1874) 10, D G Ritchie, The Principles of State Interference (S Sonnonschein & Co. 1891) 96-98, Bernard Bosanquet, Philosophical Theory of the State (Macmillan & Co Ltd., 1920) 60, R M MacIver, The Modern State (Oxford University Press, 1926) 457, Ernest Barker, Principles of Social and Political Theory (The Clarendon Press, 1951) 217, R P Anschutz, The Philosophy of J.S Mill (Clarendon Press, 1953) 48. See also Claudio Tamburrini, ‘What’s wrong with J.S. Mill’s “Harm to Others” Principle?’ (2011) 38 Journal of the Philosophy of Sport 1, 3; Nils Holtug, ‘The Harm Principle’ (2002) 5 Ethical Theory and Moral Practice 357. 3 John Stuart Mill, ‘On Liberty’ in Albert William Levi (ed), The Six Great Essays of John Stuart Mill (Washington Square Press, 1963) 135; Rees, above n 2, 171. 105
and championed the harm principle to guard against unwarranted intervention in the individual’s private sphere by the state. The key interests the harm principle protected were individual liberty, rights, autonomy, freedom of choice, and protection from arbitrary government and majority opinion.
Simply applied here and recalling the parameters of this thesis are limited to a consideration of the experience of the commercial surrogate mother,4 a direct translation of the harm principle would suggest that if the commercial surrogate mother does not experience harm in the course of the commercial surrogacy transaction in the selected context of India, then legal prohibition of commercial surrogacy is not warranted. Additionally, if the commercial surrogate mother is engaging in self-regarding conduct the harm principle posits that even if she does suffer harm, her independence is absolute and again the prohibition of commercial surrogacy is not warranted. 5
Development of Mill’s harm principle. In his essay, On Liberty, Mill tracks the development of rule in society beginning with those who derived their ruling status through inheritance or by conquest, and who ruled by dominance or tyranny, rather than for the good of society.6 As time passed, progressive members of society recognised a need for limitations to be placed on the ruling power in order to protect the community.
The aim, therefore, of patriots was to set limits to the power which the ruler should be suffered to exercise over the community, and this limitation was what they meant by liberty.7
Mill terms this limitation of power as liberty but reconnects its scope from the ruling power to that of the community in general. That connection lies in the knowledge that those members of society who are in a position to exercise the power do not represent all the interests of society itself. They generally represent the majority view or the view of those most active or prominent within the community. Therefore,
4 There are a number of parties to a commercial surrogacy arrangement. The subject of concern for this thesis is the surrogate mother. 5 See chapter 1 section IIIB where it is stated that other parties in relationships with the surrogacy mother who may be harmed by the surrogacy transaction such as her family are excluded from the parameters of this thesis. 6 Mill, above n 3, 128–129. 7 Ibid 128. 106
society needs protection not only from those who rule but ‘also against the tyranny of the prevailing opinion and feeling’:
Protection against the tyranny of the magistrate is not enough, there needs protection also against the tyranny of the prevailing opinion and feeling; against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development and prevent the formation of any individuality not in harmony with its ways, and compel all characters to fashion themselves upon the model of its own.8
Mill was concerned by oppressive events and behaviours exhibited by the ruling majority, and cites examples such as Socrates being ‘put to death by his countrymen, after a judicial conviction for impiety and immorality’.9 The charge of ‘impiety’ was founded in Socrates’ denial of the gods as recognised by the state, and in immorality because his doctrines and instructions were seen as corrupting the youth.10 Mill also referred to the crucifixion of Jesus Christ by those who were
not bad men – not worse than men commonly are, but rather the contrary; men who possessed in a full, or somewhat more than a full measure, the religious, moral and patriotic feelings of their time and people: the very kind of men who, in all times, our own included, have every chance of passing through life blameless and respected.11
He noted that there was ‘no recognised principle by which the propriety or impropriety of government interference is customarily tested’ and the ‘people decide according to their personal preferences’.12
Mill extended his justification to uphold liberty beyond a protective need to a requisite for the expansion and improvement of society from an intellectual perspective. If people are punished for thinking freely, society has no checks against which to balance opinion and custom. Ideas must be tested against opposing ideas in order to ascertain the truth.
8 Ibid 131. 9 Ibid 149. 10 Ibid. 11 Ibid 150. 12 Ibid134. 107
If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be not more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.13
If an opposing view proves the existing view incorrect, then society has learnt something of value. If the opposing view is proven to be incorrect, then the existing view is a step closer to pure truth by virtue of it having sustained being questioned. If the opposing view is automatically and systematically quelled because it does not conform or because the majority view it as incorrect, the result is twofold.
First, there is nothing against which to test the truth of the majority view so the matter remains untested and therefore questionable, or worse, according to Mill, it is accepted as the pure truth. Those who deny the truth of the opinion are not, according to Mill, infallible. To refute an opinion and silence a discussion is an ‘assumption of infallibility’.14 Mill noted that:
ages are no more infallible than individuals; every age having held many opinions which subsequent ages have deemed not only false but absurd; and it is as certain that many opinions, now general, will be rejected by future ages, as it is that many, once general, are rejected by the present.15
According to Mill, the truth can only be achieved by subjecting it to criticism, listening to others with a different opinion, and studying it through a variety of lenses:
The steady habit of correcting and completing his own opinion by collating it with those of others … is the only stable foundation for a just reliance on it…for being cognizant of all that can … be said against him and having taken up his position against all gainsayers knowing that he has sought for objections and difficulties instead of avoiding them … he has a right to think his judgment better than that of any person or any multitude who have not gone through a similar process.16
Drawing on the orations of Cicero, Mill revealed the importance of knowing the argument of an opponent:
13 Ibid 142. 14 Ibid 142–3. 15 Ibid 143. 16 Ibid 146. 108
He who knows only his own side of the case, knows little of that. His reasons may be good, and no one may have been able to refute them. But if he is equally unable to refute the reasons on the opposite side; if he does not so much as know what they are, he has no ground for preferring either opinion.17
However, he was pragmatic in his approach, recognising that if opinions are not acted upon for fear of them being wrong or not ‘pure truth’, then ‘society’s interests will be left uncared for and duties unperformed’.18
Second, society stagnates because it is believed there is nothing further to be learnt in relation to that matter. Therefore, growth and development and, consequently, change on that point is halted:
The fatal tendency of mankind to leave off thinking about a thing when it is no longer doubtful, is the cause of half their errors. A contemporary author has well- spoken of “the deep slumber of a decided opinion”.19
Mill referred to this as ‘liberticide’,20 and commented that although popular opinions are often true to some extent, they are never the whole truth.21 According to Mill, society has a duty to search for the truth and when it is found, to act upon it:
It is the duty of governments, and of individuals, to form the truest opinions they can; to form them carefully and never impose them upon others unless they are quite sure of being right. But when they are sure … it is not conscientiousness but cowardice to shrink from acting on their opinions, and allow doctrines which they honestly think dangerous to the welfare of mankind, either in this life or in another, to be scattered abroad without restraint, because other people in less enlightened times, have persecuted opinions now believed to be true.22
Mill saw liberty extending to a person’s opinion, sentiment, expression and ability to publish, tastes and pursuits and the freedom of fellow citizens to unite; all of which
17 Ibid 146. 18 Ibid 144. 19 Ibid 167. 20 In 1855, Mill stated ‘…for opinion tends to encroach more and more on liberty and almost all the projects of social reformers of these days are liberticide’: J C Rees, ‘A Re-Reading of Mill on Liberty’ in John Gray and G W Smith (eds), J.S. Mill on Liberty in Focus (Routledge, 1991) 169, 170. 21 Mill, above n 3, 170. 22 Ibid 144. 109
were subject to the qualification that in pursuit of those liberties no harm is afforded to others.23
Mill’s theory stemmed from his detest and fear of standardisation. He saw human knowledge as being incomplete and fallible with ‘no single, universally visible truth’24 and was committed to the view that, in principle, finality of truth is impossible; that ‘until we have tested where the greater truth or happiness lies, we will never know and as such the task is one of infinitum’.25
Dripps proclaims that Mill defended his harm principle by noting the importance of individuality to both the individual and society, and by his assertion that collective decisions about private behaviour are more likely to be wrong than right.26 In the criminal context, Feinberg describes actions as either required (and therefore a duty), permitted or prohibited. ‘Where coercive law stops, there liberty begins.’27 Feinberg sees liberty as the norm. Thus, any coercion (requirement or prohibition) imposed by the law requires special justification.28 The state may intervene in the life of an individual against his or her will only if it is justified such that by intervening it will prevent or reduce harm or risk of harm to others.29
The harm principle and reproductive technology. Early conceptions of rights and choice surrounding reproductive liberty were made by John Robertson who extended the application to reproductive technologies.30 Referring to Robertson, Erin Nelson asserts that ‘most of the concerns about potential harms raised in relation to the use of reproductive technologies are based on speculation or are grounded in moral objections and thus do not meet the ‘high standard necessary to limit procreative choice’.31
23 Ibid 137–8. 24 Isaiah Berlin, ‘John Stuart Mill and the Ends of Life’ in John Gray and G W Smith (eds), J.S. Mill On Liberty in Focus (Routledge, 1991) 131, 144. 25 Ibid 131, 139. 26 Donald A Dripps, ‘The Liberal Critique of the Harm Principle’ (1998) 17(2) Criminal Justice Ethics, 3. 27 Feinberg, above n 1, 7. 28 Ibid 9. 29 Holtug, above n 2, 362. 30 Erin Nelson, Law, Policy and Reproductive Autonomy (Hart Publishing, 2013) 32. 31 Ibid 33 citing John Robertson, Children of Choice: Freedom and the New Reproductive Technologies (Princeton University Press, 1994) 35. 110
Surrogacy is a form of reproductive technology. Parliament has elected to prohibit commercial surrogacy while accepting altruistic surrogacy subject to regulation. As shown in this thesis, there has been limited discussion or debate over the reasons underpinning the decision to prohibit commercial surrogacy, except to note that concerns include the exploitation of surrogate women, commodification of the child and commercialisation of reproduction. According to Mill, the truth of an opinion cannot be obtained without exposing it to criticism and the opinions of those who take an alternative view. He reinforced this by noting the importance of familiarity with the argument of an opponent because only then can one be sure one’s own argument is valid. Therefore, not only is examination of the prohibition of commercial surrogacy justified by the logic underpinning Mill’s harm principle, it is imperative that the reasons for limiting procreative choice by prohibiting commercial surrogacy are questioned. Examination of all the reasons underpinning the prohibition is beyond the scope of one thesis. Exploitation is a dominant value employed by Australian state and territory parliaments to prohibit commercial surrogacy and has been selected as the focus of this thesis.
This thesis employs the harm principle as a normative framework in the exploration of whether exploitation causes harm to surrogate women in the context of commercial surrogacy in India. It is acknowledged that Mill’s harm principle is not the only ‘liberty limiting’ or ‘coercion legitimising principle’32 nor is it without its deficiencies. However, it is not the aim of this thesis to justify or disprove Mill’s harm principle, nor is it to sanction or refute the legislative prohibition of commercial surrogacy on the basis of one liberty limiting principle. The harm principle has been prominent in reproductive debates in the United States and the United Kingdom, but exploration in Australia is limited.33 Mill’s harm principle has been selected as the normative theoretical framework against which one of the
32 Feinberg describes liberty limiting principles as those which state that ‘a given type of consideration is always a morally relevant reason in support of penal legislation even if other reasons may in the circumstances outweigh it’. He lists the following: The Offence Principle which provides justification for moral offences such as indecent exposure, pornography and racial and ethical slurs; Legal Paternalism which justifies the prohibition of euthanasia, use of illicit drugs, requirements for motorcycle and bicycle helmets and seat belts in cars; and Legal Moralism which justifies the prohibition of adultery, bigamy, prostitution and live sex shows. Feinberg, above n 1, 13. 33 John Robertson, Children of Choice: Freedom and the New Reproductive Technologies (Princeton University Press, 1994); Carson Strong, ‘Harming by Conceiving: A Review of Misconceptions and a New Analysis’ (2005) 30 Journal of Medicine and Philosophy 491, Alghrani and Harris, ‘Reproductive Liberty: Should the Foundation of Families be Regulated?’ (2006) 18(2) Child and Family Law Quarterly 191. 111
reasons for the legislative prohibition of commercial surrogacy in Australia — that is, exploitation of surrogate women — is explored. In order to achieve this, some further understanding of Mill’s harm principle is required.
The following section conducts an analysis of the harm principle to tailor a framework that can be applied in the context of reproductive technology, specific to commercial surrogacy. The nature of the harm and the degree to which others are affected is delineated. Following that, a baseline is established against which the degree of harm can be measured.
II FURTHER ANALYSIS OF THE HARM PRINCIPLE
Scholars and philosophers argue that there are significant gaps in Mill’s harm principle. A recurring criticism is the absence of a sufficient definition of ‘harm’.34 There are many layers to this seemingly straightforward question, and little scholarly agreement overall. For example, key issues arising here are:
• What constitutes the type of conduct which concerns others?35 • What type of harm attracts the harm principle? • How does causation impact on the harm principle?36 Is it necessary that there be a direct link between the person causing the harm and the person being harmed? • What degree of harm is sufficient to engage the harm principle?37 • How is harm measured? These issues are addressed in the following sections. However, before analysing the harm principle so that it can be applied to this thesis in a practical sense, it is important to first set some parameters.
34 Thomas Sobirk Petersen, ‘Being Worse Off: But in Comparison with What? On the Baseline Problem of Harm and the Harm Principle’ (2014) 20 Res Publica 199; Peter Norris Turner, ‘“Harm” and Mill’s Harm Principle’ (2014) 124(2) Ethics 299; Andrew Linklater, ‘The Harm Principle and Global Ethics’ (2006) 20(3) Global Society 329; Holtug, above n 2, 357. 35 Rees, above n 2, 181–7; Feinberg, above n 1, 37; Richard A Epstein, ‘The Harm Principle and How It Grew’ (1995) 45 University of Toronto Law Journal 369, 376. 36 Dripps, above n 26, 9; Epstein, above n 34, 369. 37 Rees, above n 2, 171-180. 112
A Agents Affected One agent – the surrogate mother. In his analysis of the harm principle in the context of the criminal law, Feinberg explores a category which includes those crimes which harm the public, society or the state rather than a specific person or group. Crimes in this category include counterfeiting, smuggling and tax evasion. The question arises as to whether ‘it is legitimate for the state to prohibit conduct that causes harm to important public institutions or practices’.38 This notion is extended further by Linklater, in the context of positive duties and negative rules of forbearance, when considering the broader global picture of whether there is an obligation to promote global distributive justice, preservation of environment, socially responsible investment and ethical tourism?39
It will be revealed in chapter 5 that Indian surrogate women are generally from impoverished backgrounds with little hope of earning a high income. In fact, a surrogacy arrangement, if carried out according to the contract, can provide the surrogate with funds equating many years income.40 As noted by Cohen, if the income source provided by commercial surrogacy is removed, these women are left with little money to feed, house and educate their children, therefore it is ‘problematically hypocritical to block an exchange by a poor person that would make the individual better off unless one is also committed to a redistributive program that would help the person regain the foregone welfare boost’.41 It is not difficult to be drawn into this argument which plays into commercial surrogacy in the Australian context because such arrangements take place off-shore in low income countries due, in part, to local prohibitions at home.
It is acknowledged that the impact of commercial surrogacy in India is complex. Whether or not commercial surrogacy exploits the surrogate mother, there are flow- on effects which potentially have a wide-ranging impact on the community. Cohen alludes to the ‘dual marketing structures’ of destination countries providing health services to foreigners and its effects on access to healthcare by the local poor.42 There is a drain on resources which are otherwise available to the poor due to a
38 Feinberg, above n 1, 11. 39 Linklater, above n 33, 338. 40 I Glenn Cohen, Patients with Passports (Oxford University Press, 2015) 373. 41 Ibid. 42 Ibid, 208. 113
reallocation to the higher paying foreign market. This takes place in an environment where the supply of those resources does not necessarily increase with community need.
However, this thesis is not examining harm from a global perspective. It will not determine whether commercial surrogacy contributes to global distributive injustice, economic suppression of non-Western countries, or violation of civil and political rights.43 While it is acknowledged there may be economic, political and social implications which commercial surrogacy confers upon India as a country, and even upon the surrogate mother’s immediate community and family, examination of these implications deviates focus from harm to the individual surrogate mother and is therefore beyond the scope of this thesis. The focus of this thesis is on individual conceptions of harm — namely, the impact on the surrogate mother — rather than on the cumulative social effects.44 Harm to public interests, such as those belonging to community groups, institutions, corporate entities, government and the community as a whole are outside the parameters of this thesis.
Children excluded. The other important limitation of this thesis is that it does not undertake a consideration of the impact commercial surrogacy has on the child born as a result of such arrangements. Criticisms such as commodification, exploitation and sale of children appear in political debates and scholarly literature.45 While it is acknowledged that this is an important issue in the context of any surrogacy arrangement, this thesis is limited in its discussion to harm suffered by Indian surrogate women.
Intended parents. Exploitation of intended parents is also beyond the scope of this thesis. The aim of this thesis is to determine whether commercial surrogacy harms the surrogate mother thereby contributing to the debate of whether it should be
43 Linklater, above n 33, 336–7. 44 Alana Cattapan, ‘Risky Business: Surrogacy, Egg Donation and the Politics of Exploitation’ (2014) Canadian Journal of Law and Society 361, 366 45 Standing Committee on Social Policy and Legal Affairs, The Parliament of the Commonwealth of Australia House of Representatives, Surrogacy Matters Inquiry and the Regulatory and Legislative Aspects of International and Domestic Surrogacy Arrangements (2016) 6, 27, 32; Family Law Council, Commonwealth Parliament, Report on Parentage and the Family Law Act (2013) 65; Nicole F Bromfield and Karen Smith Rotabi, ‘Global Surrogacy, Exploitation, Human Rights and International Private Law: A Pragmatic Stance and Policy Recommendations’ (2014) 1(3) Global Social Welfare 123; John Tobin, ‘To Prohibit or Permit: What is the (Human) Rights Response to the Practice of International Commercial Surrogacy’ (2014) 63(2) International and Comparative Law Quarterly 317, 319, 335. 114
prohibited. The parameters of this thesis do not extend to a determination of whether, all things considered, prohibition is justified.
Sources of intervention. On Liberty concerns ‘the nature and limits of power which can be legitimately exercised by society on the individual’.46 It includes interferences emanating from private associations, public opinion and custom. The type of intervention relevant to this thesis is government coercion which, in the case of commercial surrogacy, has manifested in legislative prohibition.47 Public opinion and custom may influence the decision by Parliament to prohibit commercial surrogacy, and these concepts have been explored in chapter 2. However, it is outside the scope of this thesis to consider public opinion and custom as sources of interference or coercion. Similarly, community reactions may impact on the interests of others, namely the surrogate mother. However, this thesis is not exploring whether those community reactions are justified against the framework of Mill’s harm principle, but rather whether those reactions cause harm to the surrogate mother.
In summary, this thesis examines primary and secondary material to determine the values underpinning the legislative prohibition of commercial surrogacy in Australia. Having determined that exploitation of surrogate women is a dominant value, the concept is further analysed to determine whether exploitation is justified as a reason for the legislative prohibition of commercial surrogacy on the basis of Mill’s harm principle. In other words, this thesis will first explore whether a surrogate mother is exploited when she undertakes a commercial surrogacy arrangement, and second, whether such exploitation causes her harm.
B What Constitutes the Type of Harm that Concerns Others? The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute.48
It has been argued that Mill’s harm principle appears to assert there are two categories of human behaviour: that which concerns the individual only and
46 Mill, above n 3, 127; Feinberg, above n 1, 3. 47 Holtug, above n 2, 359. 48 J S Mill, ‘On Liberty' in John Gray and G W Smith (eds) J.S. Mill on Liberty in Focus (Routledge,1991) 31. 115
therefore does not warrant intervention; and that which concerns others and in which the state should intervene in certain circumstances.
Mill accepted that people know their own interests better than anyone else and, as such, should be allowed to expose those interests at their own risk provided they do not harm anyone else in the process.49 However, Mill distinguished between those interests of a person which concern only him or herself and those which concern others:
No person is an entirely isolated being; it is impossible for a person to do anything seriously or permanently hurtful to himself without mischief reaching at least to his near connections, and often far beyond them. If he injures his property he does harm to those who directly or indirectly derived support from it and usually diminishes the general resources of the community. If he deteriorates his bodily or mental faculties, he not only brings evil upon all who depended on him for any portion of their happiness, but disqualifies himself for rendering the services which he owes to his fellow-creatures generally… If by his vices or follies a person does no direct harm to others, he is nevertheless … injurious by his example, and ought to be compelled to control himself for the sake of those whom the sight or knowledge of his conduct might corrupt or mislead.50
Mill ‘fully admit(ed) that the mischief which a person does to himself, may seriously affect, both through their sympathies and their interests, those nearly connected with him and in a minor degree, society at large’.51 He noted that whenever there is damage or risk of damage to an individual or the public, the matter is taken out of the sphere of liberty and placed in the domain of morality or law.52
A number of scholars argue that anything one does which affects another can potentially cause some form of harm and that two distinct categories (interests affecting oneself and those affecting others) is misleading because no action is free from social consequences.53 For example, Tamburrini comments:
49 Mill, above n 3, 200-201; Epstein, above n 34, 373. 50 Mill, above n 3, 204. 51 Ibid 205. 52 Ibid 206. 53 J C Rees, above n 2, 171, citing James Fitzjames Stephen, Liberty, Equality, Fraternity (Smith & Elder, 2nd ed 1874) 10; D G Ritchie, The Principles of State Interference (S. Sonnonschein & Co. 1891) 96-98; Bernard Bosanquet, Philosophical Theory of the State (Macmillan & Co Ltd, 1920) 60; R M MacIver, The Modern State (Oxford University Press, 1926) 457; Ernest Barker, Principles of Social and Political Theory (The Clarendon Press, 1951) 217; R P Anschutz, The Philosophy of J.S Mill (Clarendon Press 1953) 48. See also Tamburrini, above n 2, 3; Holtug, above n 2, 357. 116
Given the web of social relations in which we are immersed, even self-imposed harm can have an impact upon or affect others.54
After noting that there is no distinction between ‘actions which concern only the agent and actions which concern others’ because no action is free from social consequences, Rees asserts that a proper construction of On Liberty reveals that, Mill is referring to ‘interests’ of another rather than the ‘effects’ on another; 55 and that the principle seeks to limit social interference to situations where the interests of another person or persons are harmed.56 He cites passages from On Liberty which indicate that Mill was well aware, and in fact acknowledged, that the actions of individuals are constantly affecting one another.57 However, even with an understanding that it is the interests of others which the harm principle protects, further analysis is required because not all ‘interests’ which are affected are afforded protection58 and damage to the interests of others alone does not always warrant society’s protection.59
Epstein divides ‘interest’ into two categories, finding that Mill does not ‘attend sufficiently to these two senses of interest’.60 The first is where ‘the outcome of some event or process makes a difference to a person’ and the second is where ‘a person has a stake in some person or property that is protected by law’. He uses the success of Apple computer as an example. The difference lies in the interest in Apple a person who uses their products retains, and a financial or legal interest in holding shares in the Apple company. While the latter legal interests are protected, people have other subjective interests in which they have a deep personal attachment but which are not, by nature, legal interests.61 Epstein argues that subjective interests can exceed legal interests, which makes it difficult to define the constraints of liberty.62
Feinberg uses slightly different nomenclature by describing interests which are protected by law as ‘welfare interests’ and higher or superior interests which are not
54 Tamburrini, above n 2, 3. 55 Rees, above n 2, 175. 56 Rees notes at p 180 that the word ‘interests’ appears at least 15 times in the course of the essay On Liberty and points to specific references throughout the essay. Rees, above n 2, 169, 178, 179, 180. 57 Rees, above n 2, 177. 58 Holtug, above n 2, 364. 59 Mill, above n 3, 218–19. 60 Epstein, above n 35, 376. 61 Ibid. 62 Ibid 377. 117
protected by the law but are personal achievements as ‘ulterior interests’.63 According to Feinberg, those who invade ulterior interests of another do so in the exercise of their own liberty, provided they do not interfere with that person’s welfare interests. Welfare interests are the foundation of ulterior interests. If welfare interests are damaged or blocked, the more imposing, higher-level ulterior interests will be defeated. Described metaphorically in the literature as a chain being no stronger than its weakest link,64 the superior ulterior interests cannot stand unless welfare interests are intact.65
Examples of welfare interests include interests such as physical health and vigour, absence of obsessive pain or grotesque disfigurement, intellectual competence, emotional stability, economic sufficiency, a tolerable environment and minimal political liberty.66 Ulterior interests make up aims or personal goals such as building a dream house, writing a book, winning fame or glory, acquiring political power, acquiring religious holiness, advancing a cause, solving a scientific problem, raising a family or achieving leisure.67 They are personal in nature and need particular welfare interests to be present in order for them to be achievable, but they do not attract legal protection in isolation.
Rees, drawing on the work of MacIver, comments that interests have been described as ‘some object which determines activity… more than a desire, (having) a certain permanence and stability’… or as the ‘object of consciousness … anything material or immaterial, factual or conceptual to which we devote our attention.’ Rees concludes:
it is a condition in which a person’s claim to, or title to, or share in something, is recognised as valid by others, or at least is regarded as worthy of consideration. Interests are things we would generally look upon as deserving protection, to be prejudicially affected only by advantages likely to accrue in another direction.68
63 Feinberg, above n 1, 37-38, 57-64. 64 Joel Feinberg, above n 1, 37 citing Nicholas Rescher, Welfare: The Social Issue in Philosophical Perspective (University of Pittsburgh Press, 1972) 6. 65 Ibid. 66 Feinberg, above n 1, 37, 60. 67 Ibid. 68 Rees, above n 2, 182. 118
According to Rees, there are cases, such as legal interests, which are relatively simple to determine. However, there will be situations where disagreement occurs over whether interests have been affected because people’s standards and values differ. The advantages and disadvantages of social interference must be weighed, making the application of a principle based on ‘interests’ discretionary and therefore difficult to define.69 Rees’s proposition reflects On Liberty where Mill acknowledges that damage or probability of damage to the interests of others does not always justify society’s interference:
It must by no means be supposed, because damage, or probability of damage, to the interests of others, can alone justify the interference of society, that therefore it always does justify such interference.70
Implied from this statement is an acceptance by Mill that an element of discretion is required in the application of his principle.71 Further, Mill reveals some fragility in his principle when he pronounces the ‘two maxims’ which, together, form the ‘entire doctrine of his Essay’:
The maxims are, first, that the individual is not accountable to society for his actions in so far as these concern the interests of no person but himself…Secondly, that for such actions as are prejudicial to the interests of others, the individual is accountable and may be subjected either to social or to legal punishments, if society is of opinion that the one or the other is requisite for its protection.72 (Emphasis added)
The imprecise tone of the phrases ‘may be subjected…’ and ‘if society is of opinion…’ suggest there is room for discretion and that not all harm justifies punishment.
However, according to Rees, the first maxim of Mill’s doctrine — the circumstances where damage to the interests of others is not involved — is the side with which Mill was most anxious. Mill was concerned by a growing tendency for society to interfere
69 Rees, above n 2, 184. 70 Mill, above n 3, 218. 71 Ibid 222. Mill explains this by example: ‘Drunkenness in ordinary cases is not a fit subject for legislative interference, but I should deem it perfectly legitimate that a person, who had once been convicted of any act of violence to others under the influence of drink, should be placed under a special legal restriction, personal to himself, that if he were afterwards found drunk, he should be liable to a penalty.’ Similarly, ‘idleness … cannot …be made a subject of legal punishment but if … a man fails to perform his legal duties to others, as for instance to support his children, it is no tyranny to force him to fulfil that obligation, by compulsory labour if no other means are available.’ 72 Mill, above n 3, 218. 119
in a person’s concerns where no one’s interests, other than that person, had been damaged.73 This illuminates the basic principle espoused by Mill and supported by Feinberg and Rees: that the starting point in exercising the harm principle is liberty, and any intrusion on a person’s liberty by the state requires justification. The interpretative difficulties arise in relation to the point at which the state should interfere rather than when it is precluded from so doing. Whether or not an interest has been affected and reduced to a sufficient level to warrant protection from the harm principle, is subjective although there is a ‘conception of normalcy’.74 People’s interests vary. Therefore, ascertaining whether or not an interest has been set back or thwarted is posited from a ‘standard person who can be protected from standard forms of harm to standard interests’.75 This is discussed further below.
While scholars have advocated numerous and varied definitions of an ‘interest’ in the context of Mill’s harm principle, there is no clearly settled definition. However, ‘the failure to bring a notion within the confines of a neat definition ought not be a sufficient reason for rejecting out of hand a theory to which the concept is central’.76 The harm principle can operate, but it requires supplementary analysis or, as Feinberg refers to, mediating maxims.77 For the purpose of this thesis, Feinberg’s definition of ‘interests’ will be adopted. This includes all the ‘basic requirements of a man’s well-being’ which are ‘shared by nearly all his fellows’78 and from which his superior or ulterior interests can grow. Examples include ‘interests in continued life, health, economic sufficiency and political liberty’.79 Therefore the type of conduct that concerns others is conduct that affects the interests of another.
Because the individual interests of each person vary with circumstance and demographic, Feinberg postulates a ‘standard person’ with ‘standard interests’ who can be protected from ‘standard forms’ of harm.80 He does this because, in the context of the criminal law, the law must be applicable to everyone within the particular jurisdiction and must therefore be capable of traversing demographic and
73 Rees, above n 2, 185. 74 Feinberg, above n 1, 50. 75 Feinberg, above n 1, 188. 76 Rees, above n 2, 182. 77 Feinberg, above n 1, 214. 78 Ibid 37. 79 Ibid 188. 80 Ibid. 120
cultural landscapes. The expectation of ‘basic requirements’ in Western culture may not equate to the landscape in which the Indian surrogate is posited. Therefore, the standard welfare interest of the Indian surrogate mother will be measured against the standards of her own environment.
For the purpose of this thesis, the standard welfare interests will reflect those of an Indian surrogate mother as depicted in the empirical evidence and social science research outlined in chapter 5; and the conduct that concerns others is conduct that affects the welfare interests of the Indian surrogate mother.
It is necessary to develop criteria with which to measure the level of harm in order to determine whether it is sufficiently serious to attract Mill’s harm principle.81
C What Type of Harm Attracts the Harm Principle? Underpinning Mill’s concept of liberty is the proviso that conduct which causes unjustifiable harm to others may be controlled with the active interference of man.82 To that extent, an individual’s liberty is limited.83 The difficult question is ascertaining the point at which such interference is justified.
Mill’s conceptions of harm. Mill describes conduct that justifies interference as acts which are evil, hurtful or prejudicial to the interests of others:84
Acts injurious to others …encroachment on their rights, infliction on them of any loss or damage not justified by his own rights; falsehood or duplicity in dealing with them, unfair or ungenerous use of advantages over them, even selfish abstinence from defending them against injury – these are fit objects of moral reprobation and in grave cases of moral retribution and punishment.85
In contrast:
Cruelty of disposition; malice and ill-nature … envy, dissimulation and insincerity, irascibility on insufficient cause and resentment disproportioned to the provocation; the love of domineering over others; the desire to engross more than a fair share of advantages; pride which derives gratification from the abasement of others; …
81 Linklater, above n 34, 339. 82 Mill, above n 3, 137-138. 83 Ibid 180. 84 Ibid 135, 218. 85 Ibid 202. 121
egotism … are moral vices and indicate bad moral character … (but) they do not necessarily constitute wickedness.86
Mill asserts that ‘the only part of the conduct of any one, for which he is amenable to society, is that which concerns others’87 and ‘if anyone does an act hurtful to others, there is a prima facie case for punishing him, by law, or where legal penalties are not safely applicable, by general disapprobation’.88 However, he does not provide a clear rule to determine what constitutes ‘harm’. Mill’s concern lies with allowing people the freedom to act without fear of interference, rather than consideration of when such interference should occur. His focus was on what people could do rather than when they should be restrained. This unresolved definition of harm has fuelled discussion as scholars and philosophers attempt to define the parameters of Mill’s harm principle.
Other scholars’ conceptions of harm: Feinberg, Holtug et al. Harm has been interpreted in the literature as a violation, threat or injury to interests, or damage to ones wishes.89 Feinberg defines harm to an interest as the ‘thwarting, setting back or defeating of an interest so that the interest is in a worse condition than it would have been had the set-back not occurred’.90 Also included in Feinberg’s definition is a requirement of wrongfulness. The conduct of the person doing the harm must be such that it has no justification or morally indefensible excuse and results in setting back an interest that the person harmed has a right to have respected and not invaded.91
In contrast to Feinberg, Holtug argues the state may intervene in situations where the harm done does not actually set back an interest. He uses the example of a ‘bored house wife who enjoys using a slingshot to cast stones at the legs of people passing by in the street, thereby causing significant but brief episodes of pain’. While the state is likely to intervene to prevent this behaviour, according to Holtug, the
86 Ibid 203. 87 Ibid 135; Rees, above n 2, 171. 88 Mill, above n 3, 136. 89 Norris Turner, above n 34, 300 refers to John Gray, Mill on Liberty: A Defence (New York: Routledge, 2nd ed, 1996) 57, David O Brink, ‘Mill’s Liberal Principles and Freedom of Expression’ in C L Ten (ed), Mill’s On Liberty: A Critical Guide (Cambridge University Press, 2008) 42; David Dyzenhaus, ‘John Stuart Mill and the Harm of Pornography’ (1992) 102 Ethics 534, 546; Jonathan Riley, Mill on Liberty (Routledge, 1998) 99. 90 Feinberg, above n 1, 33–4,115–17. 91 Ibid 108-109. 122
housewife has not interfered with any welfare interests. The pain will pass and no prospects or possibilities are diminished or adversely affected.92 While the victims may fear continued harassment when walking along the path, this does not set the victim’s interests back sufficiently to attract protection from the harm principle.
Harm includes risk of harm : Ex ante harm. The ex ante version of the harm principle justifies coercion if it prevents harm or reduces risk whereas the justification in the ex poste version relates to actual prevention of harm.93 Mill adopts both versions when he refers to a ‘definite damage, or a definite risk of damage either to an individual or to the public’.94 Many of the well-known and accepted prohibitions within our liberal democratic society are formulated on an ex ante approach.95 That is, the state interferes with us carrying an offensive weapon, driving in excess of the speed limit, and driving with a blood alcohol reading over the legal limit. None of these actions cause harm per se, but there is a risk of harm being caused, therefore from an ex ante perspective, interference is justified. Feinberg acknowledges this in the context of criminal activity as he categorises crimes into those which result in the direct production of serious harm, such as murder, rape and assault, and those which create unreasonable risks of harm to other persons, such as reckless driving or discharge of weapons.96 Feinberg defines ‘risk’ as the combination of the magnitude of the harm and the probability of the harm occurring. Therefore, as one decreases, there must be a direct proportional increase of the other.97 In other words, the more serious the harm, less probability of its occurrence is required to attract the harm principle. Similarly, in order for a less serious harm to attract the harm principle, there must be a greater probability it will occur. In addition to magnitude and probability, Feinberg asserts the value of the conduct must be considered as to whether the conduct is valuable or useful to the actor, to others, or to society as a whole. If there is a high social value attributed to the conduct, then it is more reasonable to take the risk of harmful consequences. In such cases, the value to society would exceed the risk of harm being caused to others. Higher social
92 Holtug, above n 2, 374. 93 Holtug, above n 2, 359 94 Mill, above n 3, 206. 95 Holtug, above n 2, 359. 96 Feinberg, above n 1, 11. 97 Ibid 191. 123
value in conduct generally requires a greater risk of harm to justify prohibition of the conduct on the basis of the harm principle.98
Referring again to Holtug’s bored housewife, the risk of her behaviour harming others will depend very much on the frequency with which she engages in the troublesome conduct. While generally she simply hits her victim’s calf (low magnitude), frequent engagement will increase the probability that she will misfire and injure someone in a more serious manner. Further, the value of the risk-creating conduct is low to all parties concerned. Sling-shotting may appease the housewife’s boredom momentarily, but there are other ways to overcome boredom which do not put others at risk. On this calculation, although the magnitude of harm is low, the frequency of occurrence and low value of the conduct may still invoke the harm principle on the basis that there is a sufficient risk of harm to the victim’s welfare interests.
Feinberg asserts that ‘in every case of legal prohibition … some probability of harm in excess of a mere “remote and speculative tendency” is required’.99 However, if the conduct carries significant public interest, greater risk is acceptable because the harm caused through preventing the conduct is likely to outweigh the harm caused in allowing it. Whether the risk of harm warrants protection from the harm principle will involve an assessment of the magnitude of harm the conduct will cause, the probability of harm occurring, and the value the conduct provides to the public.
Non-physical harms. In the quintessential paragraph of Mill’s essay, On Liberty, Mill referred to actions of both a physical and moral nature:
The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. 100
Mill’s reference to both the physical and moral nature of compulsion and control relates to the mode by which liberty of a person can be restrained or interfered with. Mill asserts that the only time force or coercion can be administered to limit the liberty of a person is to prevent harm to another. In this context, the preventative
98 Ibid. 99 Feinberg, above n 1, 191. 100 Mill, above n 3, 135. 124
action which is taken in order to limit a person’s liberty is attributed a broad meaning to encompass both physical force and moral coercion.
Mill refers to physical and moral factors again in the same paragraph, but in the context of harm persons might consent to or inflict upon themselves. After stating the conditions under which such power can be used (to prevent harm to others), Mill excludes use of power to protect the physical and moral good of the individual under discussion:101
That the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.102
Mill asserts that the means of control used to limit a person’s liberty (should the necessary condition of harm to others arise) and the exception to the application of the principle (where the action affects the interests of the individual only) encompass both matters of a physical and moral nature. It follows that the same broad meaning should be given to the harms which the liberty limiting forces or actions are designed to prevent. In describing conduct that engages the harm principle, Mill refers to the serious encroachment of rights, falsehood, duplicity and ungenerous use of advantage. These harms are not limited to those of a physical nature. Further, it is clear from the literature that harm includes more than physical harm.103
Epstein asserts that confining the harm principle to cases of physical injury alone rules out too many interactions which, although not involving physical contact, cause harm nonetheless. He exemplifies this with the potentially serious consequences of defamation — a non-physical act which can manifest in harms such as ‘expulsion from clubs, the breakup of a marriage or the loss of a loan’.104 While there is no physical injury involved, there is a sufficient set-back of interests to warrant application of the harm principle. Non-physical interests which can be set-back, as outlined by Feinberg, include
101 See the paragraph on ‘Excluded harms’ for further discussion about consent in the context of exclusion from the harm principle. 102 Mill, above 3, 135. 103 Epstein, above n 35, 379. 104 Ibid. 125
…interests in emotional stability, the absence of groundless anxieties and resentments, the capacity to engage normally in social intercourse and to enjoy and maintain friendships, minimal income and financial security and a tolerable social and physical environment105 as well as interests of reputation and interests in domestic relations. 106
Epstein contends that the circumstances in which interference has been found wanting have increased over the past 150 years since On Liberty was first published,107 and Linklater, in the course of analysing Ten, expresses concern that the further harm moves away from bodily injury, the more difficult it becomes to know where the parameters end and the harder it becomes to limit state interference.108 Whether or not an event is a harm to which interference is justified in accordance with Mill’s harm principle needs to be determined on a case by case basis.109
Excluded harms. Not all harms are protected by the harm principle. Those which are excluded include set-backs to interests incurred in legitimate competitions110 and harms to which the victim has freely consented. Mill remarked that:
whoever succeeds in an overcrowded profession, or in a competitive examination; whoever is preferred to another in any contest for an object which both desire, reaps benefit from the loss of others, from their wasted exertion and their disappointment… society admits no right, either legal or moral, in the disappointed competitors, to immunity from this kind of suffering, and feels called on to interfere only when means of success have been employed which is contrary to the general interest to permit – namely fraud, or treachery, and force. 111
105 Feinberg, above n 1, 37. 106 Ibid, 61. 107 Epstein, above n 35, 371. 108 Linklater, above n 34, 337 refers to C Ten, Mill on Liberty (Clarendon Press, 1980) 52. 109 Epstein, above n 35, 371. 110 Epstein explains why competitions are not harmful in his 50% scenario. He starts with the assumption that there are two alternatives from which people can choose. The first is that neither person uses force or has it used against them, and the second is to take a 50% chance of winning or losing in a contest of force. Most will choose the former, that is, mutual rejection of force. However, if the same all-or-nothing choice is offered in the context of a competition, the outcome will differ and most will take the 50% chance of success. According to Epstein, ‘the gains from a successful competition are likely to dwarf the losses to the disappointed’: Epstein, above n 35, 380. 111 Mill, above n 3, 219. 126
Mill found a distinction between matters in which society has a direct interest and those in which society’s interest is indirect; and it is the latter which, according to Mill, should remain free from interference. Included in this province of indirect interest are actions to which a person has consented:
[T]here is a sphere of action in which society, as distinguished from the individual, has only an indirect interest; comprehending all that portion of a person’s life and conduct which affects only himself, or if it also affects others, only with their free, voluntary and undeceived consent and participation. When I say only himself, I mean directly and in the first instance; for whatever affects himself may affect others through himself.112
Consent to having her interests affected is therefore highly relevant to whether or not the commercial surrogate has been harmed within the framework of Mill’s harm principle. If she has consented to the harmful conduct, Mill would espouse she cannot seek protection from harm through societal intervention113 and state intervention would not be justified. As will be discovered, consent in the context of commercial surrogacy is complicated, and an important question which must be explored is whether and under what circumstances the consent provided by surrogate women in India can be ‘free, voluntary and undeceived’ as required by Mill to preserve the protection of the harm principle.114 The underlying assumption that consent to a transaction makes it acceptable has been challenged in the literature, much of which turns on the meaning given to the consent condition.115 This is discussed in detail in chapters 4 and 5.
In addition, there are different levels of harm, some more serious than others. In order to invoke justification for state interference through legal sanctions, the harm must be sufficiently serious. Feinberg further narrows the harm principle by excluding ‘minor harms, hurts and offences’. In this context, Feinberg is referring to experiences that are unpleasant but which do not produce permanent harm, or, to use
112 Ibid 137. 113 Mill, above n 3, 137 114 Ibid. 115 Heather Widdows, ‘Localized Past, Globalized Future: Towards an Effective Bioethical Framework Using Examples from Population Genetics and Medical Tourism’ (2011) 25(2) Bioethics 83, 89 refers to Roger Brownsword, ‘Rights, Responsibility and Stewardship: Beyond Consent’ in H Widdows and C Mullens (eds) The Governance of Genetic Information: Who Decides (Cambridge University Press, 2009) 99-125. 127
Feinberg’s terminology, do not harm ‘any of our interests’.116 These may be of a physical, mental or simply unpleasant nature. Examples of harms in this category provided by Feinberg include, but are not limited to, minor harms such as distress, irritations, pangs, twitches, aches throbs, disappointment, remorse, non-clinical feelings of depression, grief, heartache, temporary nausea and fatigue, chills and stiffness.117 These are feelings that are caused by the various forces and that commonly occur within a social environment where human behaviours collide. They must be navigated and negotiated by members of society. Protection by the harm principle is not warranted.
D How Does Causation Impact on the Harm Principle? It has been established that Mill distinguished between the interests of a person which concern only that person and those which concern others.118 Further, he acknowledged that the harm which a person does to himself, may also affect others:119
…it is impossible for a person to do anything seriously or permanently hurtful to himself, without mischief reaching at least to his near connections, and often far beyond them.120
Within this context, Mill distinguished between acts which impact on others in a hurtful manner or lack due consideration for the welfare of others, but which require merely a judgment of negative opinion and/or social avoidance, and conduct which prejudicially affects the interests of others.121 Behaviours such as rashness, obstinacy, self-conceit and over-indulgence belong to the first category and result in the lowered opinion of others inciting disapproval and the indifference of society.122 Those acts belonging to the second category are injurious to others and warrant moral retribution or punishment. The examples provided by Mill include acts that ‘seriously encroach on the rights of others, inflict unjustified loss or damage, employ falsehood, duplicity in dealing, unfair or ungenerous use of advantages and selfish
116 Feinberg, above n 1, 45-49. 117 Ibid 45-6. 118 Mill, above n 3, 204. 119 Ibid 205. 120 Ibid 204. 121 Ibid 199-200. 122 Ibid 202. 128
abstinence from defending others against injury.’123 According to Mill, if a person engages in behaviour which
infringes the rules necessary for the protection of his fellow-creatures individually or collectively …the evil consequences of his acts do not then fall on himself but on others; and society … must retaliate on him, must inflict pain on him for the express purposes of punishment, and must take care that it be sufficiently severe.124
In this context, and through the examples he provides, Mill refers to the interests of others which are both directly and indirectly affected by a person’s conduct:
If he injures his property he does harm to those who directly or indirectly derived support from it and usually diminishes the general resources of the community … If he deteriorates his bodily or mental faculties he … brings evil upon all who depended on him for any portion of their happiness … if by his vices or follies a person does no direct harm to others, he is nevertheless … injurious by his example, and ought to be compelled to control himself for the sake of those whom the sight or knowledge of his conduct might corrupt or mislead.125
Mill notes that if the conduct requires retribution or punishment, it is not for the self- regarding behaviour but for the damage that is done to others as a result of that behaviour:
If, for example, a man, through intemperance or extravagance, becomes unable to pay his debts, or, having undertaken the moral responsibility of a family, becomes from the same cause incapable of supporting or educating them, he is deservedly reprobated, and might be justly punished; but it is for the breach of duty to his family or creditors, not for the extravagance.126
According to Mill, wherever there is damage or a definite risk of damage to an individual the case is ‘taken out of the province of liberty and placed in that of morality or law’.127 Mill has provided some exemplars of the acts which warrant punitive action. However, one question which remains unanswered concerns the toleration of proximity between the harm causing event and the harm itself: at what point does the harm become so indirect that the protective tentacles of the harm
123 Ibid. 124 Ibid 204. 125 Ibid. 126 Ibid 205-6. 127 Ibid 206. 129
principle are beyond reach? There is interest expressed in the literature surrounding the reach of the harm principle. Tamburrini raises the question of whether harm to others includes indirect harm to all of those affected.128 Epstein notes the expansion of harm over the past century, some of which is due to social change and legal developments.129 Dripps is concerned that the harm principle is ‘too open to long chains of causal speculation’.130
The legal approach. Often, the cause of an event involves a complex and multifaceted set of circumstances rather than one single or a series of events with ordered, chronological dimension. The law, in following the practical standpoint of the person in the street, accepts a person is responsible for a harmful event when his or her wrongful conduct is one of any number of conditions which contributed to the harm. This step is a question of fact and is known as causation. If an act (or omission) is considered to have contributed to the harm, the law then determines whether responsibility should attach to the person who carried out the conduct.131
Feinberg considers the lens should be redirected from the legal focus on cause and effect to the concept of ‘attributing consequences to actions’.132 Actions include events, faults, failures to act, non-occurrence of a condition, states, omissions and anything else that can have consequences.133 Each of these has the ability to cause a harmful consequence. Feinberg, adopting Hart and Honore,134 provides the following example:
“The cause of the fire was the dropping of a lighted cigarette into the wastepaper basket” [act]. “The cause of the workman’s injury was the fall of the lead pipe” [event]. “The cause of the accident was the icy state of the road” [state]. “The cause of the accident was the signalman’s failure to pull the signal” [failure to act]. “The cause of the famine in India was the lack of rain” [non-occurrence of a condition].
129 Epstein, above n 35, 381 130 Dripps, above n 26, 3, 9. Dripps uses the following examples: pornography causes rape, guns are alleged to cause murder, and marijuana is a ‘gateway drug causing progression to cocaine and heroin’. 131 Lindy Willmott, Sharon Christensen, Des Butler et al, Contract Law (Oxford University Press, 2013 4th ed) 805 132 Feinberg, above n 1, 125. 133 Ibid 125. 134 H L A Hart and A M Honoré, ‘Causation in the Law’ (1956) Law Quarterly Review 72, 331. 130
“The cause of the famine in India was the failure of the government to build up adequate reserves” [failure of actions to achieve goals].135
Feinberg notes Mill’s harm principle concerns conduct in which the law should intervene, while the law is concerned with finding out who has actually violated it. So, it is the consequences of the action and whether or not the consequences are harmful to another person, which must be considered.
The moral approach. Holtug takes a moralised approach in his development of causation and looks at harm which is origin centred and origin neutral.136 Origin centred harm is where coercion is justified only if it prevents a person from wronging others. Following this approach in the context of the harm principle, intended parents should only be prohibited from engaging in commercial surrogacy if they directly cause harm to the surrogate mother. The origin neutral approach asserts the state may coerce an innocent person if that coercion will prevent others from wronging people. It has some synergy with commercial surrogacy because there are many parties involved in a commercial surrogacy arrangement. Assuming, for the moment, that commercial surrogacy causes harm to the surrogate mother, it may be argued that intended parents do not directly cause such harm. Any harm to the surrogate mother might be caused by the intermediary not ensuring she is safe and well-looked after, or by the medical profession in her treatment before and during the pregnancy, and after the child is born, or the lack of proper treatment at any stage. The origin neutral approach asserts that intended parents should be prohibited from engaging in commercial surrogacy because, although they do no direct harm to the surrogate mother, prohibition will prevent or reduce the occurrence of commercial surrogacy which will, in turn, reduce the amount of harm caused by those who do cause harm who, in the case of this example, are the intermediaries or medical practitioners. An origin centred argument would allege the origin neutral approach treats innocent persons as a mere means.
This thesis: exploitation of the commercial surrogate mother as harm. This thesis explores whether surrogate mothers in India are exploited and, if so, whether this exploitation constitutes harm sufficient to activate Mill’s harm principle. The focus of this exploration is on the conduct of commercial surrogacy and the
135 Feinberg, above n 1, 124. 136 Holtug, above n 2, 379. 131
consequences it has on the surrogate mother, thereby employing Feinberg’s concept of attributing consequences to actions rather than focussing on cause and effect. The causal connection between intended parents or any other specific party and harm to the surrogate mother is not the subject of analysis. A determination of who has or has not directly caused harm (if any) to the surrogate mother will not be made. This thesis adopts an origin neutral approach. It is not relevant whether the intended parents who enter into the arrangements, the intermediaries who organise the parties, or the medical practitioners who carry out the necessary procedures, caused the alleged harm. In addition, an ex ante and ex poste perspective of harm, in accordance with Mill’s harm principle, is adopted so that both actual harm and definite risk of harm to the surrogate mother is considered. The key question of concern is whether, from and informed by the perspectives and/or experiences of commercial surrogate mothers, commercial surrogacy causes sufficient harm or definite risk of harm to invoke Mill’s harm principle and justify prohibition.
It is acknowledged that in exploring this question, there must be a thread connecting any harm caused to the surrogate mother with process of commercial surrogacy. For the purpose of this thesis, and in keeping with its scope, the question of whether the commercial surrogate mother has experienced exploitation is this thread. The questions to explore then become: does commercial surrogacy exploit Indian surrogate women, and if so, does the exploitation cause sufficient harm or definite risk of harm to these women so that they require the protection of the harm principle to allow the state to intervene to prevent commercial surrogacy agreements (at least for Australian participants)?
E What Degree of Harm is Sufficient to Engage the Harm Principle and How is it Measured? Exploitation is discussed further in chapters 4 and 5. If it is established that the surrogate mother has been exploited, it must be determined whether the exploitation which has taken place is simply unfair or whether it has caused sufficient harm to the surrogate mother to engage Mill’s harm principle.137 Harm can manifest as an increase in negative welfare or a decrease in positive welfare.138 However, not every
137 Alan Wertheimer, ‘Exploitation and Commercial Surrogacy’ (1996-1997) 74(4) Denver University Law Review 1215, 1216. 138 Holtug, above n 2, 368. 132
act that causes harm warrants protection from the harm principle.139 A determination of whether a sufficient displacement of welfare has occurred, or is at definite risk of occurring, requires a standard or criteria against which the level of harm can be measured. This standard can be approached from two perspectives: a non- comparative perspective, and a comparative perspective.140 The non-comparative perspective measures harm by a reference to a state of being. For example, a person might be harmed because they are left in a ‘bad way’. However, what constitutes a ‘bad way’ is left to the subjective mind of the harm assessor.141 Alternatively, harm can be measured through a comparative approach, whereby comparisons are made between a person’s ‘relative levels of welfare in two actual or possible situations’.142 The difficulty with this perspective lies in determining which alternative situation should be used as the comparator or baseline.143
A number of baseline measures of harm have been deliberated and critiqued in the scholarly literature.144 It is beyond the scope of this thesis to conduct a further critique of each of these baselines. Rather, the following section summarises the baselines adopted in the literature and applies them to exploitation in the context of surrogate women.
Baselines for harm in the context of commercial surrogacy. There are three baselines referred to in the literature against which harm can be measured.145
1. The pre-interaction baselines. 2. The closest possible world baselines. 3. The normative baseline. Pre-interaction baselines. The pre-interaction baseline146 provides that a person is harmed if her interests are in a worse condition than they were prior to the harmful event. In the context of commercial surrogacy, the pre-interaction baseline compares the surrogate mother’s situation before she enters into the commercial surrogacy agreement with that after the agreement has been performed. Because of the
139 Feinberg, above n 1, 12. 140 Sobirk Peterson, above n 34, 203. 141 Ibid. 142 Stephen Wilkinson, Bodies for Sale (Routledge, 2003) 60. 143 Ibid. 144 Holtug, above n 2, 368, 369; Wilkinson, above n 141, 60-64; Sobirk Peterson, above n 33, 204-8. 145 Wilkinson, above n 142, 60-64; Holtug, above n 2, 368, 369. 146 Wilkinson, above n 142, 60-61; Thomas Sobirk Petersen refers to ‘pre-interaction’ baseline as the ‘temporal’ baseline: Sobirk Petersen, above n 34, 203. 133
heterogeneous nature of surrogacy, there are a number of benefits and harms which could potentially impact upon her and it will be a question of whether she is worse off overall having engaged in the commercial surrogacy arrangement.
A slight modification to the pre-interaction baseline is the ‘counterfactual baseline’ which provides that an event harms an individual if it renders her worse off than she would otherwise have been had the harmful event not taken place.147 Holtug made this distinction over concern that the pre-interaction baseline is ineffective if a person causes existing harm to continue in another person, where that harm would otherwise have rectified itself had the first person not intervened. In that context, using the pre- interaction baseline, the suffering person is not harmed because they are no worse off than they were before the person caused the harm to continue.148 In the context of a commercial surrogacy arrangement, the counterfactual baseline measures the welfare of the surrogate mother after the surrogacy arrangement has been completed compared to her position if the surrogacy arrangement had not occurred. In this context, the two baselines — that is, the pre-interactive and the counterfactual baseline — achieve the same outcome. Whether or not the surrogate mother has been harmed will depend upon whether positive welfare offered by the arrangement is off- set by the negative welfare. This determination requires disaggregation of benefits and harms and the scale will slide according to the benefits received. For example, the benefits such as financial gain, social standing and inter-familial power could be identified, but off-set by harms such as community stigma and physical ailments. The question is then whether overall the surrogate mother is in a positively beneficial state or a negatively harmed state following the offset. The difficulty with the baselines is determining how to attribute weight to the various benefits and harms resulting from the surrogacy arrangement which, in itself, involves a number of different interests.
Closest possible world baseline. The closest possible world baseline requires comparison of the exploited person’s actual level of welfare with the level of welfare the person would have had if the exploiter had not acted, occupied the role, or existed.149 The question is whether the surrogate mother is worse off than she would
147 Holtug, above n 2, 369. 148 Ibid. 149 Wilkinson, above n 142, 61. 134
be in the relevant ‘possible world’.150 One ‘possible world’ is that the transaction does not go ahead, in which case the question is whether the surrogate mother would have been better off not entering into a commercial surrogacy arrangement at all. This provides the same result as the pre-interaction baseline. Another ‘possible world’ is that the surrogate mother, having decided to engage in a commercial surrogacy arrangement, would transact with different parties. She might find herself in the same situation as she was initially with the same set of surrounding circumstances constituting the same harms and benefits but interacting with different actors. Alternatively, she might suffer no harm in which case Mill’s harm principle would have no application. There are many variables that can impact upon the closest possible world baseline, and significant and detailed information about the options available to the surrogate mother is required if this baseline is adopted.
Normative baseline. The normative baseline compares a person’s potentially harmful situation to that which is normal for the person, prior to the harmful event. It responds to the question of whether the surrogate mother is worse off than she ought reasonably to be (emphasis added). Although Wilkinson considers the normative baseline to be the most appropriate against which to measure harm in the context of exploitation of women in India, it is not without its problems.151 This baseline has interpretative difficulties in terms of what is considered ‘reasonable’ in the context of where a person ‘ought’ to be. Within the normative baseline measure, two concepts require acknowledgment: reasonableness and entitlement.
Reasonableness. If the threshold is set by the position of where a person ought reasonably to be, the baseline fails in circumstances where the exploited person starts from a position of privilege and, even after being harmed, overall is still in a position of greater welfare than the average person. For example, if Bill Gates is harmfully exploited to the extent of US$3 million, he has been harmed (financially) in terms of the pre-interactive and counterfactual baselines, but not according to the normative baseline as comparatively, he is still better off than where a person ought reasonably to be. Feinberg comments:
150 Stephen Wilkinson, Choosing Tomorrow’s Children: The Ethics of Selective Reproduction (Oxford University Press, 2010) 74. 151 Wilkinson, above n 142, 63 64. Wertheimer also views the normative baseline as the most appropriate. Alan Wertheimer, Exploitation (Princeton University Press, 1996) 172. 135
A penny given to a pauper is much more of a benefit to him (given his starting place) than the same amount given to a millionaire, and a penny taken from him could be a disaster, whereas the same deprivation would be beneath the millionaire’s notice.152
Alternatively, the baseline can be set at where a person in the shoes of the particular person ought reasonably to be, whether that person is Bill Gates, a pauper, or an Indian surrogate mother. The baseline relates to that which is considered reasonable for that particular person.153 In other words, it is a subjective assessment.
Entitlement. Holtug, adopting Raz’s claim that ‘one harms another when one’s action makes the other person worse off than he was, or is entitled to be’ argues this baseline of where a person is ‘entitled’ to be introduces a moral component. In order to apply the baseline, one must ascertain what the subject is entitled to, and this in turn requires inquiry into a theory of justice.154 Similar issues would arise with Wilkinson’s terminology where the word ‘ought’ is substituted for ‘entitled’. Where a person was prior to the harm and where the person is entitled or ought to be may not align for the following reasons. First, no one is entitled to be starving, yet that may well be the position the person was in before suffering further harm. Second, entitlement from a Western perspective may appear privileged, overly indulgent or financially impossible from the perspective of those in poor undeveloped countries. Similarly, something considered to be an entitlement in a poor country might barely situate outside the realms of disadvantage for the comparatively wealthy Westerner. Finally, and from a global perspective, despite the influence of the social context in which the person is positioned, surely all humanity has the same entitlement even if, in reality, demographics differ. If there are some unfortunate people who fall below that measure, then it should be regarded as unacceptable rather than normative. The normative baseline raises cross cultural issues which are too great to ignore in the context of the Indian surrogate mother. While favouring the normative baseline,
152 Feinberg, above n 1, 54. 153 Hotlug addresses this in his conception of the pre-interaction baseline. He differentiates between the person’s situation immediately prior to the event, or at some normative moment (rather than immediately) prior, or relative to what is perceived as being normal for mankind: Holtug, above n 2, 369. 154 Holtug, above n 2, 385. 136
Wilkinson acknowledges it is not always appropriate and that in some cases one of the other baselines may be more apposite.155
In the context of exploitation, Cohen proposes that a determination of whether someone is wrongfully exploited will ‘depend on the prevailing standard of care for surrogacy and post-operative care, as well as how these risks compare to the other risks faced by the women in their day-to-day lives’.156 This supports the premise that any baseline that is employed to measure harm to the surrogate mother should be positioned within the prevailing standards and demographic environment in which she is situated. This information can be ascertained through a detailed examination of empirical and social science evidence surrounding the lives of these women. For example, the surrogate mother may suffer stigma as a result of the arrangement due to her community associating surrogacy with sex work. While this occurrence may have a mild impact on a Western surrogate mother, it could have culturally severe and permanent ramifications on the Indian surrogate mother.157
Preference for pre-interaction and counterfactual baselines. As noted in section IIA, it is beyond the scope of this thesis to investigate the contribution commercial surrogacy makes to global distributive justice, economic suppression of non-Western countries, or how it potentially violates civil and political rights, and other cumulative effects it may have on society. This thesis is limited to the individual conceptions of harm relating to the experiences of the Indian surrogate mother. Rather than making a moral judgment of the position the surrogate ought to be in or is entitled to be in, the more appropriate and ascertainable baselines for this thesis are the pre-interaction and counterfactual baselines.
However, the harms and benefits attributed to the commercial surrogacy arrangements will have to be disaggregated so that the individual harms can be identified and measured against the benefits that the surrogacy arrangement provides to the surrogate mother. The complexities surrounding the measurement of harm is acknowledged by Feinberg who, in one sense, asserts that harm is ‘determined by reference to where [she] was before, and whether [her] position has improved or regressed’ which accords with the pre-interaction baselines; yet qualifies this with
155 Wilkinson, above n 142, 64. 156 Cohen, above n 40, 399. 157 The issue of stigma is discussed in detail in chapter 6. 137
another conception of measurement being that ‘one is harmed only when one’s interest is brought below the centreline and thus put into a “harmed” condition’. Relevant to the second interpretation is the realisation that:
if one’s interest, say in adequate food supplies, languishes near the bottom of the chart, any crumb thrown one’s way may advance the curve in an upward direction, but if it does not bring it to the point where nutritional deficiency is cured (the centreline) it may not seem much of a benefit, and if it does not bring it even to the point where imminent starvation can be avoided, it may be no benefit at all.158
Therefore, in determining whether or not the surrogate mother’s position is worse, consideration of her desires, expectations, lived experiences and living standards is required so that the comparison is made of her subjective position rather than where she ‘ought reasonably be’ as required by the normative standard.
Feinberg: Set-backs outweighing benefits as the key evaluative measure for breach. It has been established that it is reasonable to use either the pre-interaction or counterfactual baseline for the purpose of assessing whether Indian surrogate women are harmed by commercial surrogacy transactions. The baseline used in this thesis will be the counterfactual baseline — whether the surrogate mother is rendered worse off than she would otherwise have been had the commercial surrogacy arrangement not taken place. Because Mill’s harm principle incorporates harm from an ex ante and ex poste perspective, risk of harm and actual harm is considered. There are two reasons the counterfactual baseline has been selected. First, it resonates with Feinberg’s test of whether an interest has been harmed — that is, setting back an interest so that the interest is in a worse condition than it would have been had the set-back not occurred.159 Second, it takes into consideration the theoretical impact of prohibiting commercial surrogacy. If it is prohibited then, in theory, the commercial surrogacy arrangements would not take place.
In making the assessment of whether the surrogate mother is or risks being in a worse position, her interests must be assessed. The benefits received by the surrogate mother, as well as set-backs to her interests, are taken into account in this assessment. In addition, the surrogate mother’s position is measured against the
158 Feinberg, above n 1, 54. 159 Feinberg, above n 1, 33-4, 115-17. 138
prevailing standards and experiences to which she is accustomed. Therefore, the question to be determined is whether the surrogacy arrangement has placed or definitely risks placing the surrogate mother in a worse position than she would have been had the surrogacy arrangement not taken place, taking into account the prevailing standards and demographic environment in which she is situated. This determination is made by assessing the benefits and set-backs (including definite risk to set-backs) to the surrogate mother’s interests to determine where, overall, the surrogate mother’s interest lie in terms of positive or negative value.
III CONCEPTUAL CONCLUSIONS ABOUT MILL’S HARM PRINCIPLE IN THE CONTEXT OF COMMERCIAL SURROGACY IN INDIA
The essence of the harm principle is that unless a person’s conduct causes harm to another that person should be free to engage in the conduct as he or she wishes. Freely-consented to harms are excluded from the harm principle. In the context of the Indian surrogate mother, this would mean that participants should be free to engage in commercial surrogacy transactions unless their actions cause harm to the surrogate mother and the commercial surrogate mother has not consented to the harm. In other words, for the harm principle to offer protection from harm to the surrogate mother by preventing commercial surrogacy, she must first be harmed by the transaction and, second, her consent to the transaction must be in some way defective, involuntary or deceived.
It is unreasonable to assume a woman would enter into a commercial surrogacy arrangement as a surrogate mother without expecting some negative impacts, whether they are of a physical, psychological or emotional nature. In most contractual arrangements, some harm will be suffered in return for some benefit. It is the consequence of human interaction. For example, we assume the benefits we receive under our employment contracts exceed the costs otherwise we would question why we would remain in the position.160 Clearly, carrying a child for nine months entails a degree of pain and suffering. A weighing of harms and benefits must be undertaken and a level of harm which is acceptable in the context of the Indian surrogate ascertained. Using Wilkinson’s normative baseline of where the
160 Wertheimer, above n 151, 100. 139
surrogate mother ‘ought’ to be or Raz’s assessment of where she is ‘entitled’ to be raises cultural difficulties in the context of the Indian surrogate. An exploration and analysis of the theories of justice in order to ascertain the accepted level of ‘entitlement’ is beyond the scope of this thesis.
However, an assessment of whether commercial surrogacy places or risks placing the surrogate mother in a worse position than she would have been had the surrogacy arrangement not taken place provides a point at which harm to the surrogate mother can be identified. The position she would be in had the arrangement not happened is taken in the context of the social, physical and economic environment in which the surrogate mother lives based on empirical and social science evidence.
Arguments that the ‘concept of harm is too vague and indeterminate to provide a foundation for a cosmopolitan ethic’,161 suggest the harm principle is inappropriate for a thesis which posits itself against a backdrop of international cross border reproductive treatment. Perhaps the most antagonistic comment is by Holtug who has put forward some strong arguments to support his conclusion that the harm principle should be rejected on the basis that there is no satisfactory formulae on which to calculate harm.162 However, Mill’s harm principle has been used as a theoretical basis in the context of health law and aligns closely with the concept of reproductive liberty,163 particularly whether such liberties apply to assisted reproductive technologies.164 The harm principle has been invoked to argue that the law should not prevent any mode of family formation that does not harm others including, inter alia, surrogate motherhood.165 Max Charlesworth acknowledges that we live in a ‘liberal democratic and pluralist society where people have very different moral views and attitudes’, and reasons that ‘people should be free to make moral judgments without the influence of the law. The law should only become
161 Linklater, above n 34, 329. 162 Holtug, above n 2, 357. 163 Amel Alghrani and John Harris, ‘Reproductive Liberty: Should the Foundation of Families be Regulated’ (2006) 18(2) Child and Family Quarterly 191. 164 Carson Strong, ‘Harming by Conceiving: A Review of Misconceptions and a New Analysis’ (2005) 30 Journal of Medicine and Philosophy 491; Alghrani and Harris, above n 162; Douglas Diekema, ‘Parental Refusals of Medical Treatment: The Harm Principle as Threshold for State Intervention (2004) 25 Theoretical Medicine 243; Colin Gavaghan, ‘Deregulating the Genetic Supermarket: Preimplantation Screening, Future People, and the Harm Principle (2000) 9 Cambridge Quarterly of Healthcare Ethics 242. 165 Max Charlesworth, Bioethics in a Liberal Society (Cambridge University Press, 1993) 65, 66, 74; Holtug, above n 2, 358 citing Max Charlesworth, Bioethics in a Liberal Society (Cambridge University Press, 1993) 74. 140
involved if, as a result of that person’s decision, others are obviously harmed.’ It is in this context that Charlesworth asserts that ‘… there is a presumption that a woman should have the right to choose whether or not she wishes to bear a child for another’.166 The corollary of this assertion is that people should have the right to ask another to bear a child for them, unless doing so would cause the ‘other ‘harm. In the context of this thesis, the ‘other’ is the Indian surrogate woman.
A finding of harm or definite risk of harm provides a powerful argument for the prohibition of conduct that has caused harm; a finding of no harm or risk of harm supports an equally forceful argument to allow the conduct in question.167 The international arena in which Australian intended parents engage in commercial surrogacy arrangements adds a level of complexity to the application of the harm principle. For this reason, relying on a ‘normative’ standard, while accepted by the literature as an appropriate baseline, is culturally challenging in this context. Therefore, consideration of circumstances in which the surrogate mother lives and her subjective experiences and expectations will be taken into account.
An outline of the formulation of the definition of harm for the purpose of this thesis is:
What constitutes the type of conduct that concerns others? In the context of Mill’s harm principle, conduct that concerns others is conduct that affects the interests of another. Feinberg’s definition of ‘interests’ will be adopted; that is, ‘all the basic requirements of a man’s well-being which are ‘shared by nearly all his fellows and from which his ulterior interests can grow’ [including]:
physical health and vigour, the integrity and normal functioning of one’s body, the absence of absorbing pain and suffering or grotesque disfigurement, minimal intellectual acuity, emotional stability, the absence of groundless anxieties and resentments, the capacity to engage normally in social intercourse and to enjoy and maintain friendships, minimal social intercourse, at least minimal income and financial security, a tolerable social and physical environment and freedom from interference and coercion.168
166 Charlesworth, above n 165, 74. 167 Wilkinson, above n 142, 56. 168 Feinberg, above n 1, 37. 141
Feinberg’s setting back or thwarting of an interest will be used as a guide to measuring whether the interest has been harmed. An interest is harmed if it is or definitely risks being in a worse condition than it would have been had the set-back not occurred.
What type of harm attracts the harm principle? The conduct which causes harm must be wrong and be morally indefensible. In the context of this thesis, the wrongful conduct is exploitation. Further discussion about ‘exploitation’ can be found in chapters 4 and 5. Harms are not limited to set-backs of a physical nature. Non-physical harms are included.
Exclusion from harm. Harm excludes set-backs to which the person harmed has freely consented. The condition of consent is therefore integral to whether or not a person is harmed within the framework of Mill’s harm principle. In addition, minor harms, hurts and being offended are also excluded. It will be determined whether Indian surrogate women provide free, voluntary and undeceived consent to commercial surrogacy transactions.
How does causation impact on the harm principle? Rather than taking a legal approach and focusing on the person whose conduct caused the harm and its effect on the surrogate mother, this thesis takes an origin neutral moral approach and focuses on ‘attributing consequences to actions’. It requires exploration and analysis of the impact or consequence of commercial surrogacy on surrogate women in India, and whether such impacts and consequences cause her harm.
What degree of harm is sufficient to engage the harm principle? The harm principle is employed to prevent harm and reduce the definite risk of harm. The magnitude of the harm plus the probability of the harm occurring will be taken into account so that the more serious the harm, the less likelihood it is required to occur. A less serious harm must occur more frequently to attract the harm principle. In addition to the magnitude of the harm and probability of its occurrence, the value or usefulness to the actors and others of the harmful conduct must also be considered. The less valuable the conduct the more likely it will attract the harm principle. 142
Potential harm will be measured against a counterfactual baseline. The question is whether the surrogacy arrangement has placed or risks placing the surrogate mother in a worse position than she would have been had the surrogacy arrangement not taken place, taking into account the prevailing standards and demographic environment in which she is situated. This determination is made by assessing the benefits, set-backs and definite risk to set-backs to the surrogate mother’s interests to make a calculation of where her interests lie in terms of whether they are in a better or worse position than they would have been had the surrogacy transaction not occurred. If, overall, taking into account the benefits, set-backs and definite risk to set-backs, they are in a worse position, taking into account the prevailing standards and environment in which she lives, it can be concluded that she has been harmed.
Findings and conclusions. This chapter has synthesised the concept and implications of the harm principle. It has conducted doctrinal analysis of key elements of the harm principle, centring on six important aspects: those who are affected by the harm principle, the source of the intervention, interests which can be harmed, what constitutes harm, situations outside the harm principle and measuring harm. In doing so, it has generated answers to RQ 4: What is Mill’s harm principle?
Regarding the agents who are affected by the harm principle in the context of this thesis, the consideration of the harm principle focuses on one agent — the surrogate mother. Children born as a result of commercial surrogacy, exploitation of intended parents, those in a relationship with the surrogate mother, and economic, political and social implications of commercial surrogacy are beyond the scope of this thesis.
Regarding the source of intervention, this thesis is concerned with legislative prohibition only. Public opinion and reaction and custom are not relied upon to justify exploration of the harm principle. The justification for this exploration is derived from a finding in chapter 2 that exploitation is a dominant value relied upon to justify the prohibition of commercial surrogacy. On this basis, the concept of exploitation is further explored and analysed to determine whether it is present and, 143
based on Mill’s harm principle, whether it justifies legislative prohibition of commercial surrogacy.
The type of conduct that affects others is conduct that affects the welfare interests of others. The ‘other’ in the context of this thesis is the Indian surrogate mother. The welfare interests of the Indian surrogate mother will be measured against the standards of her lived experiences within her own environment. Welfare interests that can be harmed include interests such as physical health and vigour, absence of excessive pain, intellectual competence, emotional stability, economic sufficiency, a tolerable environment and minimal political liberty.
Regarding the type of harm that attracts the harm principle, it was found that acts which justify interference include those which are evil, hurtful or prejudicial to the interests of others. The thesis draws on the work of other scholars to provide further clarity about how Mill constitutes harm. The harmful conduct must be morally indefensible. Harm is viewed from an ex ante perspective so that both actual and definite risk of harm is considered. Factors which are taken into account when assessing the level of risk of harm include the magnitude of harm caused by the conduct, the probability of the harm occurring, and the value of the conduct under scrutiny to the person doing the harm and society as a whole. The higher the magnitude of harm, the less probability required to engage the harm principle. Similarly, the less magnitude, the greater the probability required. Harmful conduct which is of greater value to society or the person causing the harm is less likely to engage the harm principle. Minor harms, hurts and offensive conduct are excluded from the harm principle, as are those harms to which the harmed person has consented. The question of consent is highly relevant to commercial surrogacy because it is contested in the scholarly literature. If it is found that the commercial surrogate woman has consented to harmful conduct, the harm principle will have no application.
Regarding the impact of causation on the harm principle it was found that an origin neutral approach is taken focusing on the consequences that the commercial surrogacy transaction has on the Indian surrogate mother.
Regarding the degree of harm sufficient to engage the harm principle and how it is measured, this thesis adopts a comparative approach using the counterfactual 144
baseline; that is, whether the surrogate mother is or definitely risks being rendered worse off than she would have been had the commercial surrogacy arrangement not taken place, taking into account the benefits, set-backs and definite risk of set-backs to her welfare interests in the context of the prevailing standards and demographic environment in which she is situated.
This part of the thesis has contributed to scholarly knowledge by examining Mill’s harm principle in the context of reproductive technology and particularly about whether Indian surrogate women are harmed or at risk of harm. This will contribute to the debate about whether commercial surrogacy should be prohibited in Australia.
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CHAPTER 4: EXPLOITATION
I EXPLOITATION IDENTIFIED AS A POLICY VALUE UNDERPINNING THE PROHIBITION OF COMMERCIAL SURROGACY
In chapter 2, analysis of the secondary material concluded that exploitation was one of the most prominent and powerful policy values animating the continued prohibition of the practice of commercial surrogacy. However, ‘exploitation’ has been used as a value-laden concept, automatically assumed to be disparaging and to cause adverse consequences that justify prohibition. Yet, the concept of exploitation is far more nuanced and complex and must be analysed in depth to identify its nature. It is necessary to operationalise it for analytical purposes in the context of commercial surrogacy and determine whether the nature and extent of exploitation is sufficiently grave as to constitute harm and, supported theoretically by Mill’s harm principle, justify legal prohibition.
This chapter addresses Research Question 5. The concept of exploitation is analysed by doctrinal synthesis underpinned by a thematic approach. As well as analysing the contested nature of exploitation, the approaches of five key theorists in this field are synthesised. They are Wood, Wertheimer, Wilkinson, Cohen and Feinberg. Reference is also made to other theorists, including Jeffrey Kirby, G K D Crozier, Angela Ballantyne, Alana Cattapan and Vida Panitch, because these theorists have engaged with the concept of exploitation specifically within the context of surrogate women. Additionally, the work of Lynn Jansen and Steven Wall concerning the operational aspects of exploitation is also considered. This chapter identifies the ways the theories differ, both generally and specifically to the theorists, and the preferences for strong or weak interpretations and understandings. Three key elements that are consistently raised in discussions about the nature of the concept of exploitation are discussed: taking advantage of a vulnerability, a defect in consent — which itself has three potential manifestations — and an unfair distribution of benefits. However, exploitation theorists differ on what is required to constitute exploitation and whether all three of these conditions must be present. The nature of the exploitation under consideration also attracts different properties, thereby adding 146
to the challenge of defining the term. Given the contested nature of the condition of exploitation, and the different understandings of the term adopted by the theorists, in adopting the three key concepts I have selected a ‘strong’ interpretation of exploitation. A ‘weak’ theory of exploitation would require the presence of less than all three conditions, possibly only one condition, and would likely lead to different conclusions. In the absence of scholarly agreement about the nature of exploitation and whether it must conform to the strong or weak model, this thesis adopts a strong model requiring the presence of all three conditions, so that the persistent and recurrent assertions of prominent theorists in the field are represented. All elements consistently considered relevant by the theorists are captured, thereby strengthening the threshold necessary to satisfy the condition of exploitation.
Application of these concepts provides a framework against which exploitation can be measured in order to apply it in the context of commercial surrogacy. Difficulties within the context of commercial surrogacy are addressed, such as who is responsible for any exploitative activity, whether they aware of the terms of the transactions surrounding commercial surrogacy arrangements, and the effect of unsuccessful pregnancies in the context of exploitation.
This thesis does not attempt to resolve debates about the essentially contested concept of exploitation, nor does it attempt to formulate a perfect equation within which an exploitative or non-exploitative transaction must fit. Rather, this thesis explores the concept of exploitation to isolate core features around which there is sufficient consensus in the scholarly literature. This analysis and distillation of key themes/components of exploitation will then inform an evaluation in chapter 5 of whether there is evidence to indicate that commercial surrogacy in the Indian context possesses these features of exploitation.
According to Wood, to say a practice is exploitative in the pejorative sense means that the practice has already been established as being wrong or bad.1 Wertheimer notes ‘it is simply said that surrogacy is exploitative, as if the meaning, validity and moral force of these claims were self-evident. They are not.’2 Statements relating
1 Allen W Wood, ‘Exploitation’ (1995) Social Philosophy and Policy Foundation 136, 137. 2 Alan Wertheimer, ‘Two Questions About Surrogacy and Exploitation’ (1992) 21(3) Philosophy and Public Affairs 211, 212; See also Alana Cattapan, ‘Risky Business: Surrogacy, Egg Donation and the Politics of Exploitation’ (2014) 29 Canadian Journal of Law and Society 361, 365. 147
surrogacy to exploitation are based on assumptions that ‘exploitation should be prevented and that the existence of exploitation would justify restrictive policy intervention’.3
In chapter 2, it was noted that as far back as 1988 parliamentary concerns about commercial surrogacy focused on the exploitation of poor women in developing countries from low socio-economic backgrounds. Over the years, this has played out to be a potential reality in the context of Indian surrogate women. There has been little explanation of the term, or evidence of ‘exploitation’ in the political narratives that appear in the secondary material explored in this thesis, yet the term is used regularly and authoritatively as if describing surrogacy as ‘exploitative’ is proof of a wrong or a harm, the occurrence of which society has an obligation to prevent.
The concept of exploitation is explored in section II in order to develop parameters within which an assessment can be made of whether or not commercial surrogacy does in fact exploit Indian surrogate mothers. Section III explores the exploitation in the context of commercial surrogacy by resolving conceptual difficulties, such identification of the potential exploiting party, their potential lack of knowledge that exploitation is occurring, and the effect of the anticipated benefit to the exploited party not being realised. The three key concepts of exploitation as identified in section II are then given practical application, in a general sense, within the context of commercial surrogacy in India. This lays the foundation for chapter 5 and a determination of whether commercial surrogacy arrangements in the Indian context are exploitative within the definitions and parameters provided in this chapter.
II WHAT IS ‘EXPLOITATION’ GENERALLY?
Exploitation is a somewhat mysterious, or at least, complex, moral concept.4
In multiple contexts, including philosophy, parliamentary discussions and common usage, the notion of exploitation is an essentially contested concept. When used descriptively, the word ‘exploitation’ is generally intended to be disparaging. It is a
3 Angela Ballantyne, ‘Exploitation in Cross-Border Reproductive Care’ (2014) 7(2) International Journal of Feminist Approaches to Bioethics 75, 76. 4 Stephen Wilkinson, Bodies for Sale (Routledge, 2003) 57. 148
moralised, value-laden concept which implies a transaction which is labelled ‘exploitative’ is to some extent morally wrong or indefensible.5
However, the scholarly literature from the fields of social science demonstrates that exploitation of itself is not always wrong.6 The presence, degree, and wrongfulness of ‘exploitation’ depends upon the characteristics of the situation and the context of the situation. Exploitation in one sense can be positive; for example, a sports coach may place a player in a particular position to ‘exploit’ his speed. While the intent of the coach may be to harm the opposition in terms of points scored against them, used in this way the word ‘exploitation’ is not illustrative of an event that wrongs the exploited party — the player.7 In other contexts, exploitation can appear to be unfair, yet remains within the parameters of society’s conventions. People are manipulated in business with the weaker party assisting or being used by a party in a stronger position to achieve the stronger party’s preferred outcome. Commercial contracts are negotiated under conditions where one party is in a stronger bargaining position. Market forces can affect bargaining power. Supermarket chains purchase their fruit, vegetables and milk from suppliers at a much lower cost than consumers pay. These transactions fit within the broad description of being ‘exploitative’, yet, generally, society considers them acceptable.8
This thesis is concerned with exploitation in a pejorative sense, as a moral wrong. In this context, exploitation is described as harmful, mutually exclusive or immoral. These three characteristics are discussed in section A below.
A Types of Exploitation In defining exploitation, some of the scholarly literature assumes an element of harm must be present and, in so doing, incorporates concepts of coercion or fraud.9 However, exploitation can occur in a variety of situations and it is acknowledged that
5 Lynn A Jansen and Steven Wall, ‘Rethinking Exploitation: A Process-Centred Account’ (2013) 23(4) Kennedy Institute of Ethics Journal 381, 385. 6 Wood uses the context of chess players completing and exploiting one another in an attempt to out- manipulate each other; or lawyers trying to exploit their opponents in court. Wood, above n 1, 138, 154. 7 Wood might see this as exploitation of an attribute rather than a person. Wood, above n 1, 146. 8 Wertheimer would consider these examples as illustrative of ‘mutual exploitation.’ See chapter 4 section II. 9 Wertheimer, above n 2, 213 citing Stephen Munzer, A Theory of Property (Cambridge University Press, 1990) 171. 149
not all exploitation involves harm, coercion and/or fraud.10 Wertheimer describes three types of exploitative transactions: they are harmful, mutually advantageous and immoral exploitation.11 Harmful exploitation occurs if, as a result of the exploitative transaction, the person being exploited suffers harm as measured against an appropriate baseline or threshold. This is discussed further at section IIB below.
Mutually advantageous exploitation. Exploitation may be mutually advantageous where both parties gain from the transaction.12 Despite the exploiter taking unfair advantage of the exploited party, the exploited party nonetheless prefers to have been presented with the opportunity to engage in the transaction.13 They do this because there is something advantageous to them about the transaction and, in many cases, a significant disadvantage or loss if the opportunity to enter into the transaction is removed.14 To this extent, the exploited party appears to have consented willingly to be involved, although there may be an underlying subversive defect in the consent.15 In some cases of mutual exploitation, it appears the exploited party gains more than the party doing the exploiting, although the exploiting party still ends up with more than his/her fair share.16 In other words, the exploited person is in a net superior position overall but has not received his/her full entitlement of benefits (or the exploiting party has received more than he or she is entitled).17 As such, the transaction has an element of wrongfulness or unfairness. The weaker or more vulnerable a person is, the more they have to gain from the exploitative transaction and the more they have to lose if the transaction does not go ahead. Wood exemplifies this by the following example:
10 Wertheimer, above n 2, 213. 11 Ibid 214. 12 Alan Wertheimer, ‘Exploitation and Commercial Surrogacy’ (1996-1997) 74(4) Denver University Law Review, 1215; Wood, above n 1, 148; Stephen Wilkinson, ‘The Exploitation Argument Against Commercial Surrogacy’ (2003) 17(2) Bioethics 169, 173-4; G D K Crozier ‘Too Blunt a Tool: A Case for Subsuming Analyses of Exploitation in Transnational Gestational Surrogacy under a Justice or Human Rights Framework’ (2014) 41(5) The American Journal of Bioethics 38. 13 Crozier, above n 12, 38. 14 Wood, above n 1, 149. Alan Wertheimer goes further by asserting that exploited parties typically benefit more than their exploiters. Wertheimer, above n 2, 223 cited Wood, above n 1, 148; Sharon Bassan, ‘Context Matters! Why Terms of Transaction as Well as Autonomy Should Be Analysed in the Context of Low-Income Countries’ (2014) 14(5) The American Journal of Bioethics 48, 49. 15 Stephen Wilkinson argues a defect in consent is a key element in all cases of exploitation. Stephen Wilkinson, ‘Exploitation in International Paid Surrogacy Arrangements’ (2015) 33(2) Journal of Applied Psychology 125. 16 Ballantyne, above n 3, 78. 17 Ibid 80. 150
Someone who is propertyless (sic) and starving has lot to gain by striking a deal with an employer who is willing to offer bare subsistence in exchange for long, hard labour under dangerous conditions – and a lot to lose (namely life itself) if no such exploitative bargain is in the offering.18
Although the exploited party is wronged where exploitation is mutually advantageous and there is a component of unfairness to the transaction, they are not harmed.19 The level of wrongfulness is assessed by a comparison of how much the parties each receive relative to the position at which each stood at the beginning of the transaction.20
Immoral exploitation. Alternatively, the transaction can be fundamentally immoral. This can occur first because of an incommensurate exchange in value, in that there is an asymmetry in what is being exchanged in the transaction that favours the exploiter in terms of benefit; or second, the nature of the transaction is of a type that society considers is immoral but which, nonetheless, pays very well.21 In the second case, the problem is not with the amount exchanged but with the nature of what is being exchanged in that ‘it is a form of labour that should not be exchanged at all’. Wertheimer placed sexual and procreational labour in this category.22
To complicate matters, the lines of exploitation can be blurred. It may be that a person is exploited in a manner that is mutually advantageous to both parties, although some may regard the transaction as immoral. However, if as a result of the transaction the exploited person is exposed to dangerous situations where her safety is compromised, or she is indeed harmed, the exploitation is ‘harmful’ because any gain or benefit she might have received from the transaction has been outweighed by harm or risk of harm.
18 Wood, above n 1, 149. 19 Ballantyne, above n 3, 80. 20 Vida Panitch, ‘Global Surrogacy: Exploitation to Empowerment’ (2013) 9(3) Journal of Global Ethics 329, 331. 21 Wertheimer, above n 2, 212, 218-219.. 22 Ibid, 218. 151
B Harm in the Context of Exploitation Feinberg asserts that when exploitative behaviour has an adverse effect on the interests of the exploited person, and occurs without their voluntary consent, it can be prohibited by law on the basis of Mill’s harm principle.23
If it is the harm principle that legitimises prohibition then the act is forbidden, not because it is exploitative, but because it is harmful …24 [a liberal society] is committed to rejecting criminal legislation that is intended only to prevent “harmless exploitation”…25
Therefore, in order to justify the prohibition of commercial surrogacy, it must be established not only that commercial surrogacy exploits commercial surrogate women, as perceived by Parliament, but that the exploitation causes the women to be harmed. It is the harm caused by commercial surrogacy, not the fact it is exploitative that provides justification for legislative interference. Exploitation is explored in this thesis because it is the basis of one of the most dominant values employed by Australian state and territory parliaments as a reason to prohibit commercial surrogacy, as identified in Chapter 2. However, to engage the harm principle as a framework to justify the prohibition of behaviour on the basis that such behaviour is exploitative, the exploitative behaviour must also be harmful or be a definite risk of harm to the exploited person.
Harm in the context of exploitation occurs when the exploiter gains from a transaction which results in the exploited person being worse off overall,26 taking into account their ‘financial, emotional, psychological and legal status’.27 Whether the exploited party has suffered harm is measured against an appropriate base line or threshold.28
Harm, in this context, is evaluated from an ex ante perspective; that is, whether the transaction is typically harmful or poses a risk of harm, rather than whether a particular instance or element of the transaction is harmful; whether, all things considered, there is a net harm insofar as the costs to the exploited party outweigh
23 Joel Feinberg, Harmless Wrongdoing: The Moral Limits of the Criminal Law (Oxford University Press 1990) 211. 24 Ibid. 25 Ibid . 26 Ballantyne, above n 3, 78. 27 Ibid 80. 28 Alan Wertheimer, Exploitation (Princeton University Press, 2015) 207. 152
the benefits.29 This, in turn, depends on the harm to which that person is subjected compared to the prevailing standards to which the person is ordinarily exposed,30 which will involve a consideration of the other risks to which the person is exposed in everyday life. An understanding of the environment and living conditions of a typical Indian surrogate mother is integral to this assessment.
Wertheimer notes it is difficult to make an ‘all things considered’ judgment in the context of surrogacy because the benefits and harms are difficult to measure and experiences vary substantially from person to person.31 It is not a question of one surrogate woman’s experience. In the context of surrogacy, the question must be asked ‘whether the expected value of surrogacy is negative where the expected value is a function of the probability distribution of the various outcomes’.32 For the purpose of this thesis, harm will be measured against the framework of Mill’s harm principle using the counter factual baseline as discussed in chapter 3.
C Theories about Exploitation The following section explores some of the key concepts of exploitation as outlined by theorists in order to arrive at a usable understanding of exploitation for the purpose of analysis. The theorists explored include Alan Wertheimer, Allen Wood, Stephen Wilkinson, Joel Feinberg, I Glenn Cohen, Jeffrey Kirby, G K D Crozier, Angela Ballantyne, Alana Cattapan, Vida Panitch, Lynn Jansen and Steven Wall. Following a deep analysis of the varied and contested concepts of exploitation, three key themes are identified. They are: taking advantage of a vulnerability, defective consent, and an unfair distribution of benefit in favour of the exploiter. An overarching understanding of exploitation in the context of this thesis is that the Australian Parliament has used the condition of exploitation as a justification for prohibiting commercial surrogacy. However, not all exploitative behaviour is wrongful and warrants prohibition. Therefore, the condition of exploitation, as understood by this thesis, concerns exploitation in a strong and pejorative sense, and one that will capture the legitimate concerns of the Australian parliament.
29 Wertheimer, above n 2, 213-214. 30 I Glenn Cohen, Patients with Passports (Oxford University Press, 2015) 292-3. 31 Wertheimer, above n 2, 215. 32 Ibid. 153
Requirements of wrongfulness. Because it can manifest in so many different ways, inferences surrounding exploitation are varied, complex and capable of multiple interpretations. According to Feinberg, adding an element of ‘wrongfulness’ as a necessary prerequisite to a transaction being ‘exploitative’ may assist in distinguishing exploitation (in the pejorative sense) from mere use.33 Wertheimer asserts that the wrong in exploitation always involves a defect in the values exchanged.34 Wood, on the other hand, believes that exploitation is morally wrong even when it is both voluntary and beneficial to the exploited person because the exploitation of a ‘vulnerability’ for the exploiter’s benefit is still involved.35 He argues that it is the moral belief held by most that taking advantage of another’s vulnerabilities for one’s own benefit is wrong in itself:
Proper respect for others is violated when we treat their vulnerabilities as opportunities to advance our own interests or projects. It is degrading to have your weaknesses taken advantage of and dishonorable (sic) to use the weaknesses of others for your ends.36
It is the treatment of vulnerabilities as opportunities to advance one’s own interest, rather than the any ‘wrongfulness’ the transaction may exhibit, to which Wood objects.37 Wertheimer places exploitation that is voluntary and beneficial to the exploited party, but nonetheless unfair, in the category of ‘mutually advantageous’ exploitation. 38
Cohen suggests three criteria must be satisfied before a person can be wrongfully exploited:39 the exploiter must benefit from the transaction; the outcome of the transaction must be either harmful (in which case it is harmful exploitation) or unfair (in which case it is mutually advantageous exploitation); and the exploiter must induce the exploited person to agree to the transaction by taking advantage of a
33 Feinberg, above n 23, 184 192, 199; although Wood disagrees, arguing that ‘those who help people in a position of weakness typically exploit them as well …whether they make just profits, unjust profits, or even no profits at all, as long as they also use the vulnerability of the recipients to further some end of their own other than the helping itself’. Wood, above n 1, 153. 34 Wertheimer, above n 28, 102. 35 Wood, above n 1, 151. 36 Ibid. 37 Ibid 150. 38 Wertheimer, above n 2, 214. 39 Cohen, above n 30, 291. 154
feature of the exploited person or that person’s situation without which the exploited person would not be willing to agree to engage in the transaction.40
Requirements of vulnerability. Kirby elucidates Cohen’s description of exploitation in the context of commercial surrogacy by asserting the individual who is unfairly being taken advantage of (the exploitee) is ‘relatively disadvantaged on economic, social and/or political grounds’.41 In direct response to Kirby, Crozier describes exploitation as the ‘taking advantage of a vulnerability to negotiate a more favourable outcome than would otherwise be possible’.42
Ballantyne asserts that it is ‘impossible to draw general conclusions about the nature of exploitation’ because it ‘often coexists with other forms of moral wrongdoing such as harm, invalid consent, manipulation and coercion’.43 However, Ballantyne does acknowledge that vulnerability, including inequality of bargaining power, is a necessary element of exploitation.
Consent. Tied in with this is the concept of choice, which Ballantyne asserts may be limited in the context of poor women engaging in commercial surrogacy arrangements but does not necessarily invalidate consent.44 Ballantine draws a distinction between an erosion of autonomy due to unfortunate social conditions, and invalid consent. The former, which she refers to as ‘thin autonomy’, does not invalidate consent unless it causes the decision-maker to ‘suffer an affliction sufficient to distort and pathologize her capacity for reasoning’.45 Ballantyne does not consider that absence of consent is a necessary element of exploitation.46
Like Ballantyne, Wilkinson does not find that a lack of acceptable circumstances in isolation necessarily invalidates consent but argues that an impoverished surrogate mother may be ‘omissively’ or quasi-coerced because society is breaching its duty to provide the surrogate mother with welfare or opportunity, unless she acts as a paid
40 Ibid. 41 Jeffrey Kirby, ‘Transnational Gestational Surrogacy: Does it have to be Exploitative?’ (2014) 14(5) American Journal of Bioethics 24, 26-27. 42 Crozier, above n 12, 38. 43 Ballantyne, above n 3, 76, 78. 44 Ibid 88. 45 Ibid 86. 46 Angela Ballantyne, ‘Exploitation’ in Ruth Chadwick (ed) Encyclopaedia of Applied Ethics (Elsevier, 2nd ed, 2012) 268 155
surrogate or something worse.47 Her consent is therefore defective due to ‘omissive coercion’.
Alan Wertheimer describes exploitation typically as when A takes unfair advantage of B with at least some defect in choice.48 He asserts that consensual exploitation is possible in the context of mutually advantageous exploitation but that consent is absent where exploitation is harmful. Stephen Wilkinson’s description of exploitation adds substance to Wertheimer’s requirement for ‘at least some defect in choice’ by asserting that ‘defective consent is a key element in (at least nearly) all cases of exploitation’.49 Consent is discussed in more detail at section IIIB below. It is raised here simply to illustrate its role in the multifaceted condition of exploitation.
Unfair distribution of benefits. Wertheimer’s construct of exploitation requires the exploiter to benefit and that the transaction is unfair to the exploitee. Similarly, Wood and Wilkinson assert that exploitation involves one party gaining at the expense of the other. Other descriptions of exploitation include ‘a relationship of utility in which one party benefits from the use of another’50 or a ‘disparity in the share of cooperative surplus or net benefit resulting from the transaction’.51
Process or outcome-centred perspectives. Jansen and Wall analysed these descriptions of ‘exploitation’ in terms of whether they are process or outcome- centred perspectives.52 They highlighted that some of the elements suggested in the literature that need to be present for ‘exploitation’ to have occurred, such as ‘gaining an unfair advantage by praying upon a vulnerability or weakness’ and ‘defective consent’, relate to the operational aspects of the transaction in terms of how it develops. They are process-centred and present at the ‘front end’ of the transaction. In contrast, they note that the other suggested elements of ‘exploitation’, such as a ‘disparity in cooperative surplus’ or where the ‘exploiter receives an unfair degree of
47 Wilkinson, above n 12,182. Wilkinson refers to ‘omissive’ coercion as a threat not to give a person that to which he or she has a right. Wilkinson, above n 15, 136. In the latter and more recent article (2016), Wilkinson refers to the same condition as ‘quasi-coercive’ behaviour. 48 Wertheimer, above n 2, 212-213. 49 Wilkinson, above n 15, 128. 50 Cattapan, above n 2, 365. 51 Vida Panitch, above n 20, 331. 52 Jansen and Wall, above n 5, 381. 156
benefit from the transaction’, refer to more outcome-centred consequences at the ‘back end’ of the transaction.
It is suggested that some concepts of ‘exploitation’ combine both the process and outcome-centred approaches. For example, to ‘take advantage of a vulnerability to negotiate a more favourable outcome than would otherwise be possible’ combines the process-centred concept of ‘taking advantage of a vulnerability’ with the outcome-centred concept of a ‘more favourable outcome for the exploiter’.
All theorists identified that the exploiter takes advantage of the exploitee. Wood, Kirby, Crozier and Ballantyne further assert that it is a vulnerability or weakness that is taken advantage of. Most theorists agree that there is an imbalance in the benefit received as a result of the transaction in that the exploiter receives an unfair benefit or the exploitee is harmed as a result of the exploitative transaction. The question of consent is more contested in that not all theorists agree that exploitation necessarily involves a defect in consent. Much of this turns on whether the type of exploitation referred to extends to mutually advantageous exploitation. Wertheimer asserts that a broad interpretation of exploitation allows for the inclusion of mutually advantageous and voluntary exploitation. However, Wertheimer also contends that consenting adults who engage in mutually advantageous exploitation should not be prohibited from such conduct even if it is considered wrong.53 As noted in section IIB, it is harmful exploitation that is the subject of this thesis, and whether it exists in the context of commercial surrogate women in India so that the prohibition of commercial surrogacy is supported by the harm principle. As noted by Wertheimer, it is unlikely a person would enter into a transaction that is detrimental to their interests unless their consent is compromised in some way.54
D Three Key Concepts: Taking Advantage of a Vulnerability; Defective Consent; and Unfair Distribution of Benefit In considering these concepts, it is arguable that outcome-centred perspectives alone, such as disparity in the cooperative surplus or net distribution of benefits in a transaction, are not sufficient to constitute exploitation in the pejorative sense because daily, accepted business transactions could result in this outcome. That does not deny that such transactions can be exploitative, but rather that they are not
53 Wertheimer, above n 2, 213. 54 Wertheimer, above n 28, 249. 157
considered by society to be wrongfully exploitative. It is therefore necessary to strengthen the concept by the inclusion of process-centred perspectives in the definition of exploitation. For example, Wilkinson’s concept of exploitation includes the process-centred perspective of a ‘defect in consent’ which together with the outcome-centred element of an ‘unfair distribution of benefits’ in favour of the exploiter constitutes an exploitative transaction.55
Wertheimer asserts the element of ‘taking unfair advantage’ is an essential feature of exploitation.56 This view is followed by all the theorists referred to in this section except Wilkinson. Adding the elements of ‘defective consent’ and ‘taking advantage of a vulnerability’ strengthens the definition of exploitation to one which assumes an element of wrongfulness and therefore defines the term in a pejorative sense.
The final requirement of exploitation in the context of this thesis is that it must be harmful. Because this final element is measured against a framework of Mill’s harm principle, it is dealt with separately in chapter 6. However, before this determination can be made it is first ascertained that commercial surrogacy is prima facie exploitative in the strong, pejorative sense.
The following key concepts are identified as the essential and useful components of exploitation to be used for analysis in this thesis. First, there is the taking advantage of a vulnerability (process-centred); second, there is defective consent (also process- centred); and third, there is an unfair distribution of benefit in favour of the exploiter (outcome-centred). The following section will analyse each of these components.
1 Taking advantage of a vulnerability Vulnerability has been defined in the literature as being at increased risk of harm and/or having a decreased capacity to protect oneself from harm relative to some expected norm.57 The causes of vulnerability in a person can vary. Ballantyne, referring to Rogers, describes three types of vulnerability: inherent, situational and pathogenic.58 ‘Inherent vulnerability’ is shared by all humans and refers to sources of vulnerability inherent to the human condition that arise from ‘our corporeality, our
55 Wilkinson, above n 15, 128. 56 Wertheimer, above n 2, 213. See also Wood, above n 1, 148. 57 Ballantyne, above n 3, 81; Wendy Rogers, Catriona Mackenzie and Susan Dodds, ‘Why Bioethics Needs a Concept of Vulnerability’ (2012) 5(2) International Journal of Feminist Approaches to Bioethics 11, 11. 58 Ballantyne, above n 3, 81-2 citing Rogers, Mackenzie and Dodds, above n 57, 24. 158
neediness, our dependence on others, and our affective and social natures’.59 All human beings have inherent vulnerabilities which vary over a lifetime. The extent to which a person is vulnerable will depend upon her age, gender, health, disability, resilience, social support and overall coping ability. 60
Situational vulnerabilities are context specific and affected by the personal, social, political or economic circumstances in which a person is posited. They vary depending upon the particular person. Rogers uses the following example:
… a family whose home has been damaged by flood waters and who are living in emergency accommodation for several weeks may be vulnerable by virtue of their situation. But if they live in an affluent country, are insured, relatively financially secure and supported by government assistance, this situational vulnerability will only be temporary. By contrast, if they live in a poor country, with no or limited support from government or non-government agencies, the effect of being displaced from their home may be catastrophic and enduring, rendering them more or less permanently vulnerable.61
Therefore, situational vulnerability of a person depends upon the conditions within the environment in which the person lives.
Finally, pathogenic vulnerabilities ‘occur because of adverse social phenomena’.62 They can be triggered by dysfunctional interpersonal, social and socio-political relationships including ‘disrespect, prejudice or abuse’. They can also be characterised by socio-political situations, such as ‘oppression, domination, repression, injustice, persecution or political violence’.63 Again, this type of vulnerability depends upon a person’s circumstances, but looks more broadly at the factors which control the circumstances and which are largely out of the control of the vulnerable person.
59 Rogers, Mackenzie and Dodds, above n 57, 24; Wendy Rogers and Margaret Meek Lange, ‘Rethinking the Vulnerability of Minority Populations in Research’ (2013) 103(12) American Journal of Public Health 2141, 2143. 60 Rogers, Mackenzie and Dodds, above n 57, 24. 61 Ibid. 62 Rogers and Meek Lange, above n 59, 2143. 63 Rogers, Mackenzie and Dodds, above n 57, 24. 159
Vulnerability causes powerlessness, loss of control, or loss of agency. 64 It can place one party (the party being exploited) in a significantly weaker bargaining position.65 In drawing a symbiotic connection between attributes and vulnerabilities, Wood notes that the exploiter can gain access to the exploited person’s attributes by taking advantage of that person’s vulnerabilities.66 Attributes and vulnerabilities are vital to exploitation. Attributes such as ‘talents, traits, habits, capacities, activities, desires and circumstances’ can be exploited.67 Without the exploited person’s attributes there would be no reason to exploit them, and without their vulnerability there would be no means to exploitation.68 Therefore, a person takes advantage of a vulnerability in order to gain a desired attribute.
2 Defective consent The second identified key component of exploitation is defective consent, which Wilkinson describes as a ‘richly ethical concept’.69 ‘Consent changes the moral and legal relationship between parties to an agreement.’70 The nature and validity of consent as an important consideration relative to exploitation is ‘consistent with liberal understandings of individual autonomy and accepted ethics and health law norms which dictate that … decision making must be voluntary and optimally informed’.71
A defect in consent has been held to be a necessary element of exploitation by some scholars72 and, although not regarded as critical by all scholars, those who oppose this view acknowledge its presence adds weight to the argument that a transaction is
64 Ibid. 65 Wood, above n 1, 144. 66 Ibid 143. 67 Ibid 142. 68 Ibid. 69 Wilkinson, above n 15, 135. 70 Alan Wertheimer, ‘Remarks on Coercion and Exploitation’ (1996-97) 74(4) Denver University Law Review 889, 890. 71 Kirby, above n 41, 26. For a discussion of whether ‘choices’ made in circumstances where the range of choice is undesirable, see Heather Widdows, ‘Localised Past, Globalised Future: Towards an Effective Bioethical Framework Using Examples from Population Genetics and Medical Tourism’ (2011) 25(2) Bioethics 83. 72 Wilkinson, above n 15, 126, 127. 160
exploitative.73 There is sufficient support in the literature to justify its exploration as an integral element.74
Valid consent requires capacity or competence, sufficient information and voluntariness.75 A distinction worth noting is whether the exploiter is responsible for the exploited person’s consent being defective. The exploiter may cause the defect, such as in a coercive situation where the exploiter alters the exploited person’s environment in which the decision is made. For example, coercion alters the setting in which a decision is made, although it does not necessarily compromise the exploited person’s rationality in terms of decision-making ability, unless of course their judgment is distorted through fear or mental distress.76 Generally, in a coercive situation the decision made is likely to be rational under the circumstances. People do not, as a rule, hand over their wallet to strangers. However, if a person is threatened with a weapon, the decision to hand over one’s wallet may, under those circumstances, be perfectly rational, although it is not ‘usual’ behaviour. The person is fully apprised of the information and has the capacity to make a rational decision, but the coercive circumstance in which that decision has been made has altered the person’s choice or consent.77 However, the exploiter may also find the person already in a position of vulnerability, such as where he or she is impoverished, illiterate, or misinformed by a third party, or where the exploited person is party to an abusive relationship. The exploiter takes advantage of these existing circumstances to lure the exploited party into the transaction. 78
Competence. Competence in the context of consent is related to the ability of the decision-maker to understand what they are engaging in. Wertheimer, referring to Dan Brock and Allen Buchanan, notes their view of assessing competence ‘is to evaluate the patient’s decision-making capacity to make a particular decision’.79 It is the ability of a person to process and weigh information in order to arrive at a decision. Competence may be lacking because the decision-maker does not have the
73 Wertheimer, ‘Two Questions About Surrogacy and Exploitation’, above n 2, 213; Wertheimer, Exploitation, above n 28, 247-252. 74 Wilkinson, above n 15, 125; Wertheimer, above n 28, 246-47 citing John Lawrence Hill and David Miller as advocates for defective consent being necessary to establish exploitation. 75 Wilkinson, above n 15, 132; Cohen, above n 30, 298. 76 Wertheimer, above n 28, 256-57. 77 Feinberg refers to this as coercive exploitation. Feinberg, above n 23, 184. 78 Wood, above n 1, 149. 79 Wertheimer, above n 28, 190. 161
ability to understand the information due to, for example, intellectual challenges or age. It is assumed, for the purpose of this thesis, that the commercial surrogate is an adult with no significant intellectual disabilities.
Sufficient information. Information can be deficient in terms of the quality of information provided as well as the quantity. It can be false because the information provided is incorrect, or insufficient in the amount or detail in the explanation given. The content of any contracts or agreements must be clearly set out and, if necessary explained, so that the person can make a fully informed decision about whether or not to engage in the transaction. Any procedures or tasks that the person is required to undergo or carry out should be clear. This is important when placed in the context of the obligations which a person agrees to undertake. For example, what the person believes she has agreed to and what she has actually agreed to may not be the same.
Cohen notes that a lack of education may compromise consent because it would be ‘difficult to understand and evaluate the risks’.80 However, in acknowledging that even the educated are poor at understanding risk in the context of healthcare, Cohen is quick to point out that equating a lack of education with lack of decision-making ability ‘has quite an elitist air and would seem to problematically imply that the “incapacity” of these individuals should extend to many other important life decisions and thus support paternalistic interventions in those domains as well…’.81
This is discussed further in section IIIB and examined in chapter 5 in the context of empirical research. 82
Voluntariness. The final element of consent — voluntariness — is complex. Coercion can compromise voluntariness. Other factors such as lack of acceptable alternatives, offers which are too good to be true, and poverty may, in combination, erode the ‘voluntariness’ of an act. 83
80 Cohen, above n 30, 299. 81 Ibid. 82 Malene Tanderup et al, ‘Informed Consent in Medical Decision-Making in Commercial Gestational Surrogacy: A Mixed Methods Study in New Delhi, India’ (2015) 94 Nordic Federation of Societies of Obstetrics and Gynecology 465, 466. Research carried out by Tanderup et al suggests that, from the perspective of the healthcare professional, consent in the environment of the surrogacy clinic is not attributed the same importance as in other settings (466). 83 Wilkinson, above n 15, 133; Cohen, above n 30, 298. 162
Coercion. Coercion can compromise voluntariness by distorting the information or basis upon which consent is provided.84 Ballantyne contends that consent can have a narrow or broad interpretation. A narrow interpretation provides that consent is impeded only by coercion, fraud, manipulation or distress. A broad view, according to Ballantyne, adds the condition of a ‘limited range of choices’.85
Lack of acceptable alternatives and offers that are too good to refuse. Focusing on the broad view of consent, disadvantaged individuals such as those from poor backgrounds may voluntarily choose to enter into a transaction without the full knowledge of the burdens and benefits entailed because there is something they obtain from the transaction (usually financial gain) which they would not otherwise have access to. Wertheimer refers to this as ‘cognitive error’. The exploited person is essentially lured into the transaction by the grandeur of a promise of compensation. Wertheimer notes, ‘…the lure of compensation compromises the surrogate’s consent by … distorting her judgment about the effects of surrogacy on her well-being’.86 Employing this concept, Wood uses the exemplar of ‘the gambler who owes a large amount of money to ruthless and violent characters will be in desperate need of the loan shark who offers the needed funds at a usurious rate of interest’.87
The question is whether social structures and context have played an overly influential role thereby distorting the decision-making ability of the exploited person to truly provide valid consent.88 Although better off than she was previously, her consent may have been compromised by her vulnerability. The lure of the benefit the exploited person hopes to receive could coerce her into the transaction or distort her judgement about the burdens of the transaction, so that her consent to enter is impaired.89 Wilkinson views consent broadly when he considers the process of governments implementing economic policies to stimulate gross domestic product without addressing social and political conditions. Under such circumstances, members of the population living in conditions of poverty are forced (or coerced)
84 Wertheimer, above n 28, 26. 85 Ballantyne, above n 46, 264, 268. 86 Wertheimer, above n 28, 108. 87 Wood, above n 1, 149. 88 Bassan, above n 14, 49. 89 Wertheimer, above n 12, 1221. 163
into unacceptable alternatives in an attempt to alleviate their dire circumstances.90 While macroeconomic influences are outside the scope of this thesis, Wilkinson’s view that consent can be invalidated by ‘omissive or quasi-coercion’ which incorporates threats to a person’s rights by a third party is relevant. An unfulfilled duty owed to a person can constitute coercion, according to Wilkinson, even if it would not make them worse off than they were before, but rather forces them to remain stagnant, posited in an unsatisfactory situation.
There is significant justification in the literature for asserting that a lack of acceptable alternatives alone does not create an environment of exploitation.91 For example, Wertheimer acknowledges the difficulty in arguing that an offer to engage in a transaction is coercive in the absence of a threat or pressure to accept the offer;92 Janet Radcliffe-Richards argues if the range of choices is too small, matters cannot be improved by removing the best option that poverty has left, thereby reducing the options further;93 and Julian Savulescue affirms ‘poverty which is acceptable to a society should not be a circumstance which prevents a person taking on a risk or harm to escape that poverty’.94 However, there is similar support for the argument that the broad version of coercion can compromise consent particularly when other consent-limiting conditions are present.95 This thesis adopts the broad version of consent and takes into consideration lack of acceptable alternatives and offers that are too good to be true in the assessment of whether the surrogate mother consents to the commercial surrogacy arrangement.
Concepts of consent and coercion in the context of the Indian surrogate are examined in chapter 5 in the context of the experiences of Indian surrogate women.
90 Wilkinson, above n 15, 136 citing Francoise Baylis, ‘Transnational Commercial Contract Pregnancy in India’ in F Baylis and C McLeod (eds), Family-making: Contemporary Ethical Challenges (Oxford University Press, 2014) 273-4. 91 Stephen Wilkinson, above n 15, 125; Wertheimer, above n 28, 109. 92 Wertheimer, above n 12, 1222. 93 J Radcliffe-Richards, ‘The Case for Allowing Kidney Sales’ (1998) 351 Lancet 1950 referred to in Widdows, above n 71, 88. 94 Julian Savulescu, ‘Is the Sale of Body Parts Wrong?’ (2003) 29 Journal of Medical Ethics 138, 139. 95 Wertheimer, above n 28, 1221; Wilkinson, above n 15, 136. 164
3 Unfair distribution of benefits Unfairness is a key element of exploitation.96 Whether a transaction is unfair, and what that unfairness entails, depends on the nature of the transaction. The price paid by the exploited party may be too high, or the benefit received too low. Additionally, or alternatively, the nature of the transaction itself may degrade the exploited person, or it may not be the type of exchange that should involve money.97 Wertheimer proposed a number of different principles in an attempt to explain ‘unfairness’. This thesis draws on three of those principles as a potential framework to measure unfairness. The three principles are selected because they have attributes which can be applied and are relevant to the concept of commercial surrogacy.
The Inequality Principle draws on principles of morality and justice which state a fair transaction requires equality in the division of the social surplus.98 Social or cooperative surplus is ‘the benefits minus the burdens in the transaction, or, in the case of mutually advantageous exploitation, the net benefit’.99 Thus, an exploitative exchange is one where the goods and services exchanged are not of equivalent value.100
Panitch argues that the cooperative surplus can be unfair in two ways. First, there is an incommensurate exchange in that the benefit received by the exploiter is of a nature that outweighs any benefit afforded to the exploited party. In other words, there was ex ante disparity (at the outset) in the exchange value of the benefits which both parties sought from the transaction. The second way the cooperative surplus can be unfair is if the exploited party does not receive that which he or she was promised or has a right101 — an ex post disparity. For example, this could manifest as a failure by the exploiter to carry out a promised action, or a reduction in financial benefit which manifests in an unfair distribution of surplus benefit. Panitch notes that the exploited party may voluntarily enter into the transaction fully appraised of the
96 Vida Panitch, ‘Transnational Surrogacy and the Justice Condition of Nonexploitation’ (2014) 14(5) The American Journal of Bioethics 46, 47. Wertheimer, above n 28, 208; Ballantyne, above n 3, 81. 97 Wertheimer, above n 70, 898. 98 Wertheimer, above n 28, 222. 99 Jeffrey Kirby, ‘Engaging with a Peer-Proposed, Additional Exploitation Condition: Response to Open Peer Commentaries on “Transnational Gestational Surrogacy: Does it Have to Be Exploitative?”’ (2014) 14(5) American Journal of Bioethics DOI: 10.1080/15265161.2014.901806; Panitch, above n 96, 47. 100 Wertheimer, above n 28, 222. In this context, Wertheimer refers to Robert Frank, Passions with Reason (W.W. Norton, 1989) 164. 101 Panitch, above n 96, 47. 165
situation but be subsequently deprived of a fair share of the benefits or the share to which he or she is rightly owed.102 The parties exist within a social structure, comprising of a disproportionately high amount of opportunity and benefit directed to the exploiter and a similar proportion of burden and restrictions apportioned to the exploited.103
It is the first aspect of unfairness of the cooperative surplus, where the benefit received by the exploiter outweighs any benefit afforded to the exploited party, that is problematic for the Inequality Principle. To draw on Wertheimer’s example:
If B purchases a box of salt from A for $50, we have no reason to think that A and B are gaining equal amounts of utility from this transaction.104
It is necessary to have a reference point against which the fairness of the transaction can be measured. The competitive market provides that point. A fair transaction is viewed from the perspective of similar transactions in other markets which draws upon another of Wertheimer’s principles.
The Hypothetical Market principle represents a fair market price that an informed seller would accept with no pressures distorting his decision; that is, the ‘price that would be generated by a competitive market’. 105 In the context of Wertheimer’s sale of salt example, this principle works well because the competitive surrounding market will dictate a fair and reasonable price. However, the principle becomes less appealing where markets are not as regular and harmonious. A disparity of remuneration received by surrogate mothers in low-income jurisdictions compared to those from high-income nations would suggest there are vulnerabilities in those jurisdictions where the surrogate mothers’ remuneration is less.106 However, considering the complexities surrounding global structures, it might be unrealistic to adopt jurisdictions of contrasting social, economic and political environments as reference points for determining unfairness. The reasons for remunerative disparity are likely to be multitudinous and beyond the scope of this thesis.
102 Ibid. 103 Crozier, above n 12, 39. 104 Wertheimer, above n 28, 222. 105 Ibid 230. 106 Ibid 232. 166
Finally, the Contribution Principle asserts that the distribution of social surplus should reflect the party’s contributions to the transaction.107 Rather than focussing on equality of exchange, this principle takes into account the heterogeneous nature of some exchanges and assesses the value of the contribution made by one particular party. The difficulty here is determining how contributions are measured. Again, it requires a calculation of the amount of labour and production undertaken by the surrogate mother compared to that of the intended parents. One option is to query ‘what would happen if this factor were removed?’108 In other words, a comparison is made of the transaction with the measured party’s contribution and then without it. Clearly, in the case of commercial surrogacy, removing the surrogate mother would cause a breakdown of the transaction, unless an immediate substitute can be found. However, the same could be said if the contribution made by the intended parents was removed.
Wertheimer acknowledges the difficulty in attributing one principle to all transactional interactions, given the multifarious contexts in which transactions arise. It may be that there is a best principle for a particular context. However, even within the context of commercial surrogacy, the lived experiences of each individual commercial surrogate are not the same. Individual circumstances will influence the nature of the transaction which takes place. Levels of unfairness will vary between transactions. Further exploration and practical application of these principles is undertaken in chapter 5 in the context of the available empirical evidence.
E Summary Exploitation is a complex and essentially contested concept. There are numerous definitions of exploitation in the theoretical literature, but there is no single definition that has unanimous consensus. Definitions vary in their approach from being process-centred, to outcome-centred. Some definitions include a combination of these factors. This thesis does not attempt to resolve these debates. It is beyond the scope of this thesis to formulate a perfect equation within which an exploitative or non-exploitative transaction must fit. Rather, informed by an analysis of scholarly literature about this concept, it acknowledges that exploitation is a contested concept, and extracts features of the concept that can defensibly coalesce into a strong
107 Ibid 227. 108 Ibid 229. 167
working concept of exploitation for the operational purpose of this thesis. Accordingly, the research presented in this chapter responds to Research Question 5, by synthesising and analysing the nature of exploitation based on the scholarly literature, and isolating core features around which there is sufficient consensus to create an understanding of the concept of exploitation to inform an evaluation in chapters 5 and 6 of whether there is evidence to indicate commercial surrogacy in the Indian context possesses these features of exploitation.
For the purpose of this thesis, the following elements have been identified as being important features of a strong concept of exploitation in the pejorative sense. First, the exploiter takes advantage of the exploited person’s vulnerability for his or her own benefit. Second, there is a defect in the exploited person’s consent. Third, there is an unfair distribution of the benefits of the transaction. These three key features incorporate both process and outcome-centred approaches. On the basis that these three conditions of exploitation are satisfied, it is posited that an overarching feature of harm is attributed to the transaction.
In adopting this approach, it is acknowledged that some scholars would not necessarily require all features to be present in order to sustain a claim of exploitation. Different theorists have different preferences and defend slightly different conceptions of the term ‘exploitation’. For example, Wilkinson only requires an unfair distribution of benefits and a defect in consent to establish unfair exploitation, whereas Wertheimer does not think defective consent is a necessary condition. For many scholars, taking advantage of a vulnerability is the integral ingredient, although it is the defect in values exchanged that Wertheimer views as being the ‘wrong’ of exploitation.109 Such diversity in preferred theoretical understandings of an essentially contested concept is inevitable, and this has the natural and legitimate consequence that different approaches to the term will result in different operationalisation of the term. The research conducted in this thesis synthesised the relevant literature, analysed the concept of exploitation, made reasoned arguments to identify a sufficiently robust understanding of the concept, and employed that understanding of the concept for operational purposes.
109 Wertheimer, above n 12, 1218. 168
Synthesis and analysis of the exploitation condition was conducted in sections IIC and IID and, informed by this research and analysis, the thesis adopted a strong rather than weak interpretation of exploitation, which incorporates the three major features most commonly cited in the literature. These three key features —taking advantage of a vulnerability, defective consent and unfair distribution of benefit — are understood as forming the essential components of the concept of exploitation, and this informs an evaluation in chapter 5 of whether there is evidence to indicate commercial surrogacy in the Indian context possesses these features of exploitation.
In the next section of this chapter, section III explores the concept of exploitation and its three key components within the context of commercial surrogacy. Following this, further exploration and practical application of the key concepts is undertaken in chapter 5, informed by empirical evidence about the lived experience of Indian commercial surrogate women.
III WHAT IS ‘EXPLOITATION’ IN THE INDIAN COMMERCIAL SURROGACY CONTEXT?
A Difficult Issues Before embarking on an analysis of exploitation in the context of commercial surrogacy, there are some difficulties which must first be explained. Assuming it can be argued that exploitation is occurring in the commercial surrogacy context, the following concepts raise concern.
Identification of the potential exploiting party. The first is the identification of the potential exploiting party. The intended parents engage the surrogate mother. However, in many instances they are unaware of the contractual arrangements and the circumstances surrounding the transaction. Are they ‘turning a blind eye’ and is this acceptable? Should the blame lie with the intermediaries who may be accused of coercing the surrogate mother into the surrogacy arrangements, or whose role should include ensuring the surrogate mother fully understands her obligations including the risks involved? Should members of the medical and health profession be held culpable if the medical procedures undertaken are unnecessary and lack decision- making input from the surrogate mother, or if post-partum treatment is not carried out properly? 169
The aim of the prohibition on commercial surrogacy in Australia is to directly impact on the behaviour of intended parents so that they do not engage in these arrangements. The intermediaries or medical professionals in India are only affected indirectly insofar as the volume of intended parents travelling to India is reduced by the prohibition. If a prohibition has been put in place to prevent the exploitation of surrogate women, then the question is whether the women are exploited, rather than who is responsible for any potential exploitation.
Alan Wertheimer resolves this issue by expanding on the concept of what constitutes a benefit to the exploited person. Described as ‘mediated exploitation’, Wertheimer explains that not every case of exploitation is bipartite. Generally, A exploits B to promote A’s interest, but sometimes A exploits B to promote C’s interest. If C has authorised or requested A to obtain the benefit from B, then both A and C may be culpable.110 If Australian intended parents are regarded as exploiting surrogate mothers in the context of commercial surrogacy in India, it may occur through the actions of others whose services the intended parents have requested for their benefit — albeit through authorisation rather than direct action — and who, according to Wertheimer, would be culpable.
Exploiting party’s awareness. Another issue of concern is whether the intended parents are even aware of the procedural aspects of the surrogacy arrangements as they occur in India. Many only briefly meet the surrogate mother at the time of signing the contract.111 They do not speak the local language or have knowledge of the legal guidelines that are in place.112 However, Wertheimer asserts that a person can exploit another whether he or she intends to or not. The exploiter may believe the terms of the transaction are fair and harmless. Wertheimer prioritises intentional exploitation as being worse than negligent exploitation which, in turn is worse than ‘non-culpable’ exploitation. 113 While it is beyond the scope of this thesis to explore the constructive knowledge or otherwise of intended parents, it is acknowledged that
110 Wertheimer, above n 28, 210. 111 Sheela Saravanan, ‘An Ethnomethodological Approach to Examine Exploitation in the Context of Capacity, Trust and Experience of Commercial Surrogacy in India’ (2013) 8(10) Philosophy, Ethics and Humanities in Medicine 9/12
there is a distinction between being unaware of potentially exploitative aspects of a transaction and simply choosing to ignore them. With media exposure and the emotive nature of commercial surrogacy, intended parents would have to be extremely isolated to be unaware of at least the potential for exploitation in commercial surrogacy arrangements in India.
Intended but uncrystallised gain. A final issue is a situation where the exploiter intends to but, for some reason, does not gain a benefit from the transaction. Benefit is an integral component of exploitation. If it is absent, the argument for exploitation is incomplete. Cohen puts forward a response to this in the context of an organ transplant recipient dying and therefore not receiving the benefit of the donated organ. He asserts the recipient gained a benefit in the form of an opportunity to extend life.114 Wertheimer elaborates on this by differentiating between exploiting and seeking to exploit. If a person seeks to exploit another, but fails because the benefit is never realised, the other person to the transaction cannot have been exploited. In the context of a person (the exploiter) who steals a lottery ticket which fails to win, there is an ex ante gain of the opportunity to win money but not an ex post gain because no money is won. Wertheimer argues that harm to the exploited person is measured from an ex ante perspective, therefore the person from whom the lottery ticket was stolen has been exploited. 115
If a surrogacy arrangement is unsuccessful because the surrogate fails to fall pregnant, miscarries or the child dies in utero or early post-delivery, the potential exploiting parties still gain a benefit. For example, the intermediary will receive some costs for their efforts in seeking a surrogate. The health professionals will still be paid for their medical intervention, and the intended parents, like the organ recipient, have had an ex ante gain of opportunity (manifesting as a benefit) they would otherwise not have had. The surrogate may receive only a fraction of her expenses or be required to reimburse all expenses paid,116 in which case she may well fall within the realms of harmful exploitation, ‘all things considered’.117
114 Cohen, above n 30, 292. 115 Wertheimer, above n 28, 209. 116 Cohen, above n 30, 373. 117 The phrase ‘all things considered’ is frequently used by Wertheimer when referring to the overall assessment of costs and benefits to the exploited person. Wertheimer, above n 2, 215. 171
B Under What Circumstances Might Commercial Surrogacy be Exploitative? The aim of this thesis is to isolate the key elements which are indicative of an exploitative transaction, as evidenced in the literature, and apply those elements to the available empirical research to determine whether there is any evidence that commercial surrogacy transactions in India are exploitative and harmful. Three key elements have been identified as necessarily present in a strong interpretation of an exploitative transaction: taking advantage of a vulnerability, defective consent, and an unfair distribution of benefits.
1 Taking advantage of a vulnerability The first essential condition of exploitation on the conceptual interpretation in this thesis is taking advantage of a vulnerability.
Vulnerabilities are identified by the circumstances which place a person in a significantly weaker bargaining position to other parties.118 Vulnerabilities which create an unfair bargaining position for the surrogate mother and thereby expose her to potential exploitation surround her living circumstances. According to Rogers’ three types of vulnerability — inherent, situational and pathogenic — the Indian surrogate mother could fall into any of the three categories. She is unlikely to fall into the inherently vulnerable age bracket of being very old or young and in need of care because the attribute she possesses and which the intended parents want to utilise is the ability to carry and deliver a child. Physical health and being the appropriate child-rearing age are important characteristics for a surrogate mother. It is unlikely the clinic will engage a young woman with a severe disability, although lack of resilience and timidity may be features possessed by a woman which could make her inherently vulnerable.119 If the economic circumstances in which the surrogate mother finds herself place her in a position of extreme poverty she could be situationally vulnerable. Furthermore, poverty may make her pathogenically vulnerable if she is unable to change her economic position due to the social, political and environment in which she lives.
Situations where one party is in a position of situational vulnerability due to significant economic disadvantage compared to the other attract exploitative
118 Wood, above n 1, 144. 119 Saravanan, above n 111, 8. 172
practices.120 This can manifest as a disparity in bargaining position where the exploiter’s position is significantly stronger than that of the exploitee.121 Therefore, poverty can lead to vulnerability because a potential exploiter has greater socio- economic resources than the exploitee.122
Further, if the surrogate mother is poor and surrogacy provides her with a significantly greater wage than that which she is otherwise able to earn, this may have a positive impact on her decision to enter into the arrangement but may also make her more vulnerable to accepting unfavourable terms. This creates an inequality in her bargaining position compared to the intended parents or those negotiating on behalf of the intended parents, such as surrogacy brokers. There may also be coercive factors which influence her decision to engage in the transaction, such as familial pressure to bring more money into the household, or domination by the male members of her family or the intermediaries sent by the commercial surrogacy clinics to recruit surrogate women. If present, these conditions create situational and pathogenic vulnerabilities, thereby allowing intended parents to take advantage and use the surrogate’s reproductive attributes for their benefit. Questions of exploitation arise where surrogate women are engaged at a cheaper rate than others who are less vulnerable. As noted by Wilkinson:
These consumers of surrogacy services are exploiting Indian poverty: keeping their own costs down by taking advantage of the position of Indian women.123
It is necessary to look at attributes of Indian surrogate women, such as their demographic, in terms of age, income, prior employment and motivation for entering into the surrogacy arrangement. It is also important to note whether surrogacy brokers and the intended parents behave in a way which suggests they are taking advantage of the surrogate women’s vulnerability.
2 Defective consent The second essential condition of exploitation on the conceptual interpretation in this thesis is defective consent. Whether the surrogate mother has a choice to enter into the surrogacy arrangement is an important and relevant factor within the framework
120 Wood, above n 1, 156. 121 Ibid 144. 122 Cattapan, above n 2, 371. 123 Wilkinson, above n 15, 129. 173
of this thesis, not just because some of the scholarly literature asserts it must be compromised to establish exploitation, but because its absence is necessary to establish harm to the surrogate mother. Assessing consent is challenging for two reasons. First, consent does not carry the level of importance in the Indian surrogacy landscape compared to other contexts.124 Obtaining individual consent from the surrogate mother is not viewed as an integral component of medical treatment. Second, other influences such as family and the community can overpower the individual, eroding Western concepts of autonomy and providing little scope for individual decision-making.125 However, defective consent is a key concept of exploitation within the parameters of this thesis and will be explored in the context of Indian surrogate women.
Elements of consent. Consent requires capacity, sufficient information, and voluntariness.126 Therefore, whether the surrogate mother consents to the surrogacy arrangement requires exploration of the following conditions.
Capacity. First, it must be established that the surrogate mother has capacity to understand the nature of the agreement she is going to enter into. The age of the surrogate mother will be explored. Surrogate women are generally married with at least one child.127 Their personalities should be courteous and submissive.128 There is no evidence in the literature that women with cognitive impairment are selected as surrogate women. It is unlikely the women lack capacity or competence to consent to engage in commercial surrogacy.
Sufficient information. Second, the quality and quantity of information provided to the surrogate mother prior to entry into the transaction must be explored; in particular, whether she understands the nature of the contract she has entered into and the medical procedures she will be required to undergo. This will depend on whether all the information has been provided to her in a manner she can understand. The level of her participation in the decision-making process will be reflective of
124 Tanderup et al, above n 82, 466. 125 Aneeta A Minocha, ‘The Socio-Cultural Context of informed Consent in Medical Practice’ in B S Baviskar and Tulsi Patel (eds), Understanding Indian Society Past and Present (Orient BlackSwan, 2010) 257, 263. 126 Wilkinson, above n 15, 132; Cohen, above n 30, 298. 127 Amrita Pande, ‘Not an “Angel”, Not a “Whore”: Surrogates as “Dirty” Workers in India’ (2009) 16(2) Indian Journal of Gender Studies 141, 146. 128 Saravanan, above n 111, 8. 174
whether she has been provided with sufficient information. Those with more education are likely to receive more information and have greater engagement with decisions relating to reproduction. As noted by Gupta:
Clinical encounters were characterised by power hierarchies … based on factors such as the perceived social distance between themselves and the service provider, mainly due to the medical authority of the latter and their own inability to understand medical jargon …It was observed that during counselling sessions, the higher educated and better informed clients ask the right questions and received more information than those with less education or prior information. 129
The two main concerns in relation to decision-making by Indian surrogate women are potential illiteracy and lack of education which, in turn, can compromise their ability to read and comprehend the written commercial surrogacy contracts they are required to sign, and understand the risks and benefits of the obligations and procedures they are required to undertake.130 Therefore, her ability to read, comprehend and understand the information must be explored. If the surrogate woman lacks education she may be illiterate or unable to fully understand her obligations, particularly if there are language barriers. Even if the conditions of her contract and the medical procedures are explained to her, they may be too complex for her to fully comprehend.131 If she is from a paternalistic background, she may have difficulty asking for clarification from those she considers authoritative, particularly if they are male.132 Literacy, education levels, and whether surrogate women are provided with sufficient information are explored in chapter 5.
Voluntariness. Coercion. Wertheimer notes the argument that poor women are coerced to enter into arrangements because it ‘represents an improvement over an unacceptable status quo’, but counters this with the argument that the women still have a choice and choose the lesser of two evils — that is, exploitation over poverty.133 He concludes that surrogacy is not coercive because intended parents make the surrogate an offer which she is free to accept or refuse. For a transaction to
129 Jyotsna Agnihotri Gupta, ‘Exploring Indian Women’s Reproductive Decision-Making Regarding Prenatal Testing’ (2010) 12(2) Culture Health and Sexuality: An International Journal for Research, Intervention and Care 191, 198. 130 Wilkinson, above n 15, 133. 131 Tanderup et al, above n 82, 469, 470. 132 Malene Tanderup et al, ‘Reproductive Ethics in Commercial Surrogacy: Decision-Making in IVF Clinics in New Delhi, India’ (2015) Journal of Bioethical Inquiry DOI10.1007/s11673-015-9642-8. 133 Wertheimer, above n 28, 108-109. 175
be coercive the exploiter must propose to make the exploitee worse off if the offer is refused.134 However Wilkinson notes that coercion need not emanate from the person seeking consent. Therefore, in the context of commercial surrogacy, it may not be the intended parents who coerce the surrogate mother to enter into the arrangement. Wilkinson further asserts that background poverty can have a coercive affect in the context of international surrogacy. The threat posed by background poverty is that ‘unless the woman accepts a low-quality job of one kind or another (surrogacy being one of the “job options”) then she and her family will be faced with destitution’.135 Background poverty is addressed below under ‘lack of acceptable alternatives and offers that are too good to be true.’
It is necessary to establish whether there was any coercion from the surrogate mother’s family, community, intermediaries and medical staff surrounding her decision to enter into the agreement. Even if it is established that surrogate mothers in India are drawn from a demographic of poor rural women with little education,136 their family backgrounds may nonetheless be varied. Some women may be coerced into surrogacy by their families, while others engage in negotiations with their families in an attempt to gain greater control within the family landscape’.137 For some it is a survival strategy,138 and for others a means to gain status in the family.139
Lack of acceptable alternatives and offers that are too good to be true. Scholarly literature has asserted that surrogate women have no suitable alternative but to accept the offer of surrogacy, therefore the decision to enter into the surrogacy transaction is not voluntary. The surrogate’s circumstances place her in a weak bargaining position. Employment opportunities for this unskilled group are limited, menial and poorly paid. Therefore, according to this argument, surrogacy presents the only
134 Ibid 109. However, note Panitch, above n 20, 333. 135 Wilkinson, above n 15, 136. 136 Sharvari Karandikar, Lindsay B Gezinski and James R Carter et al, ‘Economic Necessity or Noble Cause? A Qualitative Study Exploring Motivations for Gestational Surrogacy in Gujarat, India’ (2014) 29(2) Affilia: Journal of Women and Social Work 224, 227. 137 Amrita Pande, Wombs in Labor (Columbia University Press, 2014) 23. 138 Ibid 28. 139 Amrita Pande, ‘Commercial Surrogacy in India: Manufacturing a Perfect Mother-Worker’ (2010) 35(4) Signs 969, 988. In this ethnographic study conducted by Pande on 42 surrogates in the city of Anand, state of Gujarat, one surrogate was undergoing treatment for the second time. The first time she said she built a house from the money she earned. She said that this time she was going to use the money to become an air hostess and visit America. See also Amrita Pande, ‘“At Least I Am Not Sleeping with Anyone”: Resisting the Stigma of Commercial Surrogacy in India’ (2010) 36(2) Feminist Studies 292, 305. 176
acceptable alternative.140 Offers that are too good to refuse within the context of background poverty is a further indicator of whether the surrogate mother’s decision is voluntary. In isolation, these measures do not necessarily compromise consent.141 However, in combination, they provide a stronger argument that there is a defect in consent to a transaction. Panitch asserts:
The extent of the Indian surrogate’s inability to bargain is determined by her fungibility, her lack of education, the extent to which her and her family members’ basic needs are unmet, and the limited range of the other remunerative options available to her. Each constrains her ability to bargain for more than she is offered, evincing an impairment of agency, and resulting in an impairment of the Consent Condition.142
The ‘drowning case’ and the ‘surgeon case’ are utilised in the literature on exploitation as counter arguments to the assertion that a lack of acceptable alternatives is coercive.143 In the scenario of the drowning case, it is argued that the transaction is coercive because A has no acceptable alternative:
A comes upon B, who is drowning. A proposes to rescue B if B agrees to pay A $10,000. A and B know that there are no other potential rescuers. 144
At first blush this may appear to be case of coercion. However, if a patient is advised by a surgeon to have to have a leg amputation or they will not survive, there is no suggestion of coercion or exploitation although the patient’s only acceptable alternative to death is amputation.145 According to Wertheimer, the drowning case is coercive because A has an existing obligation to improve B’s situation without compensation, whereas in the second case there is no such obligation placed upon the physician. As intended parents, intermediaries, and medical professionals have no obligation to improve the surrogate mother’s situation without compensation, there is arguably no exploitation by these parties on the basis of a lack of acceptable alternatives being available to the surrogate women. If the surrogate mother’s
140 Vida Panitch, ‘Surrogate Tourism and Reproductive Rights’ (2013) 28(2) Hypatia 274, 283; Wilkinson, above n 15, 136; Wertheimer argues that a transaction that constitutes an offer cannot be exploitative because there no requirement to accept. 141 Wilkinson, above n 15, 134-5. 142 Panitch, above n 140, 283-4. 143 Wertheimer, above n 28, 110. 144 Ibid. 145 Ibid. 177
choices are limited due to dire background conditions, the problem, according to Wertheimer, is with those conditions rather than the actors who play a role in the surrogacy arrangement itself.146
However, Panitch disagrees, asserting that the genuine acceptance of an offer requires the ability to negotiate its terms, which surrogate mothers do not possess.147 Drawing on Wilkinson’s concept of ‘omissive coercion’, she argues that Indian surrogate women lack consent because there is an obligation owed by someone (or something, such as society) to provide the surrogate with welfare in order to address the pathogenic vulnerability causing her to possess a lack of acceptable alternatives to engaging in commercial surrogacy arrangements. Because the duty remains unfulfilled, the women are omissively coerced or coerced by a third party to engage in commercial surrogacy and therefore their consent is compromised.
Closely aligned to a lack of acceptable alternatives are offers made to surrogate women which are too good to refuse. In order to determine whether such offers are coercive, Wilkinson considers whether the surrogate woman would, all things considered, prefer to be a surrogate and receive payment than to not be a surrogate and therefore not receive any payment.148 It is a question of whether the ‘lure of the financial gain motivates her to make a decision that she will regret, or would regret if she thought objectively about its effect on her life’.149 If the woman has entered into the transaction for purely financial gain, without fully considering the consequences this will have on her life, and others knowingly or negligently take advantage of this position, her consent may be questionable.150
In summary, whether the decision made by the surrogate mother is voluntary or not can be influenced by coercion from her family, surrogacy brokers, medical staff or the community in which she lives. If the surrogate mother is coerced to enter into or perform under the agreement, her consent is compromised. Other compromising factors include a lack of acceptable alternative choices and offers that are too good to be true. Broader views, such as those espoused by Wilkinson and Panitch, view this as ‘omissive or third party coercion’ when considered in the context of the poor
146 Ibid. 147 Panitch, above n 20, 334. 148 Wilkinson, above n 15, 143. 149 Wertheimer, above n 28, 111. 150 Ibid 112. 178
environment in which surrogate women reside, 151 and argue that, together, they can compromise consent. This thesis adopts this broad interpretation of whether there is a defect in consent provided by Indian surrogate women.
To complicate matters, each surrogate may be influenced by different factors, therefore trying to ‘typify’ a surrogate mother is difficult. An analysis of the empirical evidence relating to commercial surrogacy in the Indian context will inform these concepts and is discussed in chapter 5. Like the key concept of vulnerability, whether or not there is a defect in consent by the surrogate women will vary and may depend upon the familial, social and environmental factors surrounding the surrogate. Those women whose consent to enter into the commercial surrogacy arrangement is found to be defective will be included in the category of potentially being exploited. Those that have freely consented to the surrogacy arrangement will not be considered to be exploited within the parameters of this thesis.152
3 Unfair distribution of benefit There are two ways one party can take unfair advantage of the other. The first is evidenced by a disparity in the value of the nature of the exchange itself in terms of worth; and the second is where the exploited party does not receive that which she is promised or to which she is rightfully owed.153 Panitch refers to this as the ‘justice condition’ and acknowledges the difficulty in assessing the value of financial gain by the surrogate and its consequences compared to the gains enjoyed by the intended parents in the form of a child.154
It is tempting to argue that an inequality in the value of the transaction could be alleviated or at least reduced by an increase in payment to the surrogate mother.155
151 Wilkinson, ‘Exploitation in International Paid Surrogacy Arrangements’, above n 15,133-7; Wilkinson, ‘The Exploitation Argument Against Commercial Surrogacy’, above n 12, 177; Panitch, above n 20, 334. 152 It is acknowledged that those women who have freely consented to the surrogacy arrangement may still be exploited under a weak interpretation of the exploitation condition; that is, an interpretation that does not require defective consent as being necessarily present. However, the interpretation of exploitation adopted by this thesis is a strong interpretation that accommodates exploitation in a pejorative and potentially harmful sense. Those surrogate women who have consented to the arrangements are outside the parameters of this thesis. They will also fall outside Mill’s Harm Principle as their conduct would be considered self-regarding. See 6.3.2. 153 Panitch, above n 96, 47. 154 Panitch, above n 20, 331. 155 Casey Humbyrd, ‘Fair Trade International Surrogacy’ (2009) 9(3) Development World Bioethics 111, 112. 179
However, commercial surrogacy is a complex concept insofar as an increase in payment does not necessarily reduce the veracity of the exploitation argument. This is supported by two arguments: first, that surrogacy commodifies a form of labour that should not be exchanged for money because to do so is immoral.156 The act of paying for the service of carrying a child is regarded as morally reprehensible. The very act of providing money is exploitative, regardless of the amount involved. An increase in money is likely to increase the wrongfulness and reprehensibility of the exploitative transaction. 157
The second argument is specific to Australia and relates to the surrogacy legislation. An exploration and analysis of the secondary resources suggests that one of the main reasons Australia prohibits commercial surrogacy is because it is considered exploitative. Yet altruistic surrogacy — that is, surrogacy where no payment is involved — is allowed. Logically, it follows that non-payment (or altruistic surrogacy) is not exploitative, because otherwise it too would be prohibited. On this view, the act of payment transforms a non-exploitative act into an exploitative one.158
As noted in section IID, Wertheimer proposed three principles to determine whether a transaction is unfair. They are the Inequality Principle, which looks at the division of the social surplus in the transaction; the Hypothetical Market Principle, which compares other similar market values; and the Contribution Principle which compares the contribution of the parties to the transaction. The following section applies Wertheimer’s unfairness principles in the context of commercial surrogacy in India.
Inequality Principle. The Inequality Principle requires consideration of the nature of the exchange. Not all transactions require, or even involve, an equal exchange. What is important is that the parties are happy with the exchange.159 An exchange need not be measured in purely financial terms. The benefit to the intended parents is a child.
156 Wertheimer, above n 28, 103. 157 Wertheimer refers to ‘higher pay being the dog that doesn’t bark because the receipt of monetary compensation compromises the surrogate mother’s consent by coercing her to enter into the transaction or distorting her judgment about the effects of surrogacy on her well-being’. Therefore, increasing the compensation only increases coercion which increases the level of exploitation. See Wertheimer, above n 12, 1221. 158 Wilkinson, above n 12, 181. 159 Wertheimer, above n 28, 222. 180
This is regarded as being impossible to equate in monetary terms.160 However, the benefit to the surrogate could well involve a similarly positive experience in that she is able to assist her own existing family in ways that, without the opportunity of surrogacy, would have been impossible in her circumstances. No value can be put on a child. Similarly, no value can be put on the lengths a parent will go to protect and nurture an existing child.161 Being given the opportunity to adequately feed, house or educate an existing child or children is one that few parents would refuse. It may not be a question of putting a monetary value on a child; but rather the exchange of the opportunity to have a child for the opportunity to benefit another. Obviously, children are not an exchangeable commodity. However, on the isolated concept of evaluation of exchange, it resolves or at least weakens the incommensurability argument. Rather than comparing the value of a child with the monetary worth of the surrogate mother’s payment under the transaction, it compares the value of a child to the value of the members of another family, thereby placing the parties on a more level playing field.
However, Panitch asserts that comparisons should not be confined to the specific surrogacy contract but should extend across contracts to those in non-developing countries. She reasons this because ‘developing world workers enjoy so many less benefits than their first-world counterparts, despite taking on all the same burdens’.162 As Panitch notes, ‘the prospective parents who contract the services of an Indian surrogate do so precisely because they can get away with offering her less’. Panitch’s comments reflect Wertheimer’s Hypothetical Market Principle. 163
Hypothetical Market Principle. This principle represents a price that would be generated by a competitive market. It is a market where neither party takes unfair advantage of the other party’s vulnerabilities or decision-making capacity, thereby ignoring the very aspects of commercial surrogacy arrangements which raise issues of exploitation. According to Wertheimer, this argument provides suitable criteria to determine a fair transaction in certain cases. There is a disparity of remuneration
160 Panitch, above n 20, 331. 161 Ibid. 162 Ibid. 163 Wertheimer, above n 28, 230. 181
received by surrogate women in some jurisdictions compared to others.164 For example, the cost of commercial surrogacy in India is approximately one-third of the cost in the United States.165 However, ‘fairness’ from an inter-country perspective is not necessarily a positive resolution in the global context of commercial surrogacy. Inflating the wages in India to equate with those of the United States could harm the local population by pricing them out of the reproductive technology market.166 Furthermore, there may be low-income countries where the financial benefits received by surrogate women are in parity or less than those received in India.
In addition, it has been noted that there are many practices in India that receive less remuneration than the equivalent practice in a developed country. Rendering surrogacy unfair on the basis of this condition would result in all practices where the payment received is lower than in developed countries being labelled ‘unfair’.167 It therefore questions the validity of using a market which has disparate social, economic and political conditions to the target market as an external reference tool. However, on the face of the transaction, there is a disparity in market value between jurisdictions from the perspective of the intended parents insofar as it is cheaper for them to undertake surrogacy in India than in the United States.
Finally, it can be argued that, in fact, the Indian surrogate is very well paid by local standards because she receives the equivalent of four to seven year’s wages for performing the surrogacy.168 However, money alone does not address the full spectrum of fairness. There are other areas where surrogate women in India have less rights and benefits than those in more developed countries. These include rights over
164 Panitch, above n 20, 332. Panitch compares demographic features of the Indian surrogate mother with those from the US, noting differences in remuneration, education, literacy, motivation and other employment options. 165 Amrita Pande, ‘Surrogacy, Stratification and the State in India’ in Susanne Lundin, Charlotte Krolokke, Michael N Petersen and Elmi Muller (eds), Global Bodies in Grey Zones: Health, Hope, Biotechnology (SUN MeDIA Stellenbosch under SUN PRESS, 2016) 92. 166 Stephen Wilkinson, above n 15, 129. 167 John Tobin, ‘International Commercial Surrogacy Dilemmas’ (2014) 63(2) International and Comparative Law Quarterly 317, 345; Darryl Macer, ‘Ethical Conditions for Transnational Gestational Surrogacy in Asia’ (2014) 14(5) The American Journal of Bioethics 1 http://ex.doi.org/10.1080/15265161.2014.892180 refers to Indian people working in call centres, industry workers, and textile workers; Stephen Wilkinson, above n 15, 140. 168 Stephen Wilkinson, above n 15, 129. The estimation of equivalent wages earned varies in the literature from 5 years (Pande 2010) to 20 years (Saravanan 2015). Generally, the empirical research is consistent in its estimation of the surrogate mother’s family earning prior to the surrogacy arrangement of $50 – $100 per month. The discrepancies are mainly in the estimation of the surrogates’ earnings which range from $2,000 – $10,000. 182
her body and the child born as a result of the surrogacy transaction, and benefits with respect to insurance, counselling and legal advice.169 In addition, pressures such as poverty and unacceptable alternatives would be ignored under this principle, thereby distorting the context in which the transaction takes place.
Contribution Principle. Wertheimer’s Contribution Principle asserts the distribution of social surplus should reflect the party’s contributions to the transaction.170 Again, this raises questions about the amount of labour and production that the surrogate mother undertakes compared to that of the intended parents. Even if the surrogate mother is content with the monetary value and what it can do for herself and her family, she is arguably working 24 hours a day for 9 months, and possibly longer in terms of recovery. It can be argued that the money outlaid by the intended parents, including sums attributable to medical staff and agents, is far outweighed by the surrogate’s obligations under the transaction. The counter-argument is that pregnancy is a natural biological occurrence and, unlike factory workers, surrogate women are not actually engaging in manual labour during the nine months of gestation. Wertheimer refers to this in the context of a counter-argument to student athletes who allege they contribute more to their college than they receive:
To the extent that the athlete’s contribution derives from “natural” abilities and talents, we can allow that he or she makes an important contribution but deny that he or she has a deep moral claim to be rewarded in accordance with that contribution.171
One test proposed by Wertheimer to determine the value of a party’s contribution is to consider the situation without the person. Clearly, the surrogate mother is an integral party to any surrogacy transaction and without her contribution the transaction could not go ahead. However, the same can be said for the intended parents.
Wertheimer dismisses the principle due to the difficulties associated with measuring a party’s ‘contribution’ to a transaction. However, it has value insofar as it draws attention to the potential disparities in the benefits and burdens attributed to the parties in a commercial surrogacy transaction. In essence, the intended parents pay a
169 Sheela Saravanan, ‘Global Justice, Capabilities Approach and Commercial Surrogacy (2015) 18 Medical Health Care and Philosophy 295, 296; Panitch, above n 20, 332. 170 Wertheimer, above n 28, 227. 171 Ibid, 228. 183
relatively small amount of money and experience considerable emotional exertion. In exchange, the surrogate mother undertakes physical, mental and emotional exertion for more than nine months (or longer depending on her medical outcomes). While pregnancy may be a natural phenomenon, it becomes less so when the person conceiving, gestating and delivering does not keep the child she has nurtured. This is a rudimentary comparison of the exchange which takes place in a commercial surrogacy arrangement. A detailed analysis will be undertaken in chapter 5 when empirical research is examined.
This section has applied the three principles of unfairness and shows that the interpretation given to each principle significantly alters the outcome of whether the Indian surrogate mother receives an unfair distribution of benefits. Based on the Inequality Principle, commercial surrogacy can be viewed as unfair from the perspective of a financial exchange in return for a child; but from the perspective of what each party gains from the transaction, it becomes more commensurate when the potential for opportunity is considered. Intended parents have the opportunity to have a child and the surrogate mother has the opportunity of affording her children basic necessaries that would not otherwise be within their reach.
An assessment based on the Hypothetical Market Principle reveals that, from an international perspective, benefits received by Indian surrogate women are far less than those received by surrogate women from other countries, such as the United States. However, there may be other low-income countries where the financial benefits from commercial surrogacy are on a par or less. Furthermore, when compared to earnings within the Indian jurisdiction, the disparity in wages is reversed as the surrogate mother’s earnings far exceed what she could otherwise earn.
Finally, the contribution principle exposes the benefits and burdens of the transaction insofar as the exertions undertaken by the intended parents and the surrogate mother. Their roles differ greatly and the benefits weigh against the surrogate mother, although both parties are integral to the transaction. However, further analysis is required about this in the context of available empirical evidence.
Wertheimer acknowledges there is no unique principle that can be utilised to determine whether or not a transaction is fair, given the diverse contexts of 184
transactions and divergence of distribution of benefits. However, the principles mentioned above are useful in identifying aspects of commercial surrogacy that require consideration and analysis in order to determine whether a transaction is unfair. The question remains whether, from an ex ante perspective, the act of engaging in commercial surrogacy exploits the surrogate mother when all the impacting factors are weighed.172 The payment received by the surrogate mother forms part of the calculation of her overall benefit. These impacts will be considered in the context of the empirical evidence in chapter 5.
C Findings and Conclusions This chapter synthesised the nature of exploitation which is the prominent value animating the prohibition of commercial surrogacy in Australia. It found that exploitation is an essentially contested concept. It described the types of exploitation as characterised in the scholarly literature: that is, mutual, immoral and harmful exploitation. Doctrinal analysis of the key elements of exploitation was conducted, centring on three important aspects around which there is sufficient consensus to create an understanding of — and operationalise the condition of — exploitation. These aspects are: taking advantage of a vulnerability, defective consent and an unfair distribution of benefits. The chapter applied the three key concepts to the context of Indian commercial surrogacy. In doing so, it has generated answers to RQ 5: What is exploitation generally and in the specific context of commercial surrogacy?
Regarding taking advantage of a vulnerability, the chapter found that vulnerability places the exploited party in a significantly weak bargaining position. The exploiter takes advantage of attributes possessed by the exploited party and gains the use of a desired attribute. In the context of commercial surrogacy, the vulnerability can be situational because the surrogate mother is in a position of extreme poverty. She may also be pathogenically vulnerable because she cannot change her financially distressing position due to her social and political environment. While vulnerability leads to inequality in both bargaining power and distribution of benefits, an increase in payment to the surrogate mother will not necessarily assuage this association. In fact, it may increase the level of exploitation. However, it was noted that there is no
172 Wertheimer, above n 2, 215. 185
‘typical’ surrogate woman so features of vulnerability will vary in presence and extent.
Consent is a complex area in the context of commercial surrogacy because there is a divergence of opinion in the literature as to its role in the exploitation argument and it can be compromised in many ways.
Regarding defective consent, this chapter found that consent requires capacity, sufficient information and voluntariness. Regarding capacity, age and cognitive impairment are relevant factors in the context of commercial surrogacy. Regarding sufficient information, quality and quantity of information provided is important as this will determine whether the surrogate mother understands the nature of the contract she enters into and the medical procedures she will be required to undertake. In addition, it will reflect the level of participation by the surrogate mother in decision-making. Literacy and education are important factors in understanding these matters. Regarding voluntariness, coercion alone is sufficient to compromise voluntariness and this may emanate from any of the parties to the surrogacy arrangement as well as the surrogate mother’s family and community. Inescapable background poverty is viewed as ‘omissive or third-party coercion’ which impedes consent. Because this thesis has adopted a broad view of consent, factors such as lack of alternative choices and offers that too good to be true will also be taken into account in considering whether the surrogate mother’s voluntariness is compromised and therefore her consent defective. However, these factors must be in combination. In isolation, they are not sufficient to compromise voluntariness.
The final key concept of exploitation extracted from the literature is that the exploiting party receives an unfair distribution of benefit. Wertheimer’s principles of unfairness — the Inequality Principle, the Contribution Principle, and the Hypothetical Market Principle — were applied in the context of commercial surrogacy to reveal potential arguments in support of commercial surrogacy arrangements having elements of unfairness.
Within the context of commercial surrogacy, exploitation raises difficulties which must be addressed. These include whether the intended parents are responsible for or aware of the terms of the commercial surrogacy transactions and surrounding activities, and the effect of unsuccessful pregnancies in the context of exploitation. 186
These difficulties are justified by the assertion that although intended parents may not be directly associated with or responsible for exploitative activity, they are nonetheless part of the commercial surrogacy equation due to their instigation of the process and the benefit (or opportunity of benefit) they receive.
Analysis of the condition of exploitation reveals that it is not always pejorative so, in many instances, a finding of exploitation per se would not justify prohibiting the behaviour that has been labelled as exploitative. Adopting Mill’s harm principle, harm to others justifies state interference. Therefore, if commercial surrogacy exploits Indian surrogate women, and such exploitation is found to be harmful within a framework of Mill’s harm principle, prohibition of the exploitative behaviour may be justified.
The level of harm will be measured using Mill’s harm principle as the normative framework. If the surrogate mother has been exploited, then whether such exploitation causes her harm is determined by examining whether the overall burdens to the transaction outweigh the benefits received. If overall the surrogate mother is in a worse position than she would have been had the transaction not taken place, it is a case of harmful exploitation.
Having analysed the scholarship on exploitation both generally and in the context of commercial surrogacy and isolated the concepts of taking advantage of a vulnerability, a defect in consent and an unfair distribution of benefits, as necessary elements of exploitation for the purpose of this thesis, the empirical evidence will be analysed in the following chapter to determine whether these elements are evident in the experiences of commercial surrogates in India. 187
CHAPTER 5: EXPERIENCES OF THE INDIAN SURROGATE WOMEN
I INTRODUCTION
In chapter 4, the concept of exploitation was explored and three core features were isolated as being necessarily present to constitute an exploitative transaction. This chapter addresses Research Question 6 by identifying and analysing the currently available empirical research about the lived experiences of Indian surrogate women to explore the question of whether and to what degree there is evidence that these women experience exploitation based on the strong model used in this thesis; that is, are these women in a situation where there is a taking advantage of a vulnerability, a defect in consent, and an unfair distribution of benefits.
Section II first explores the social context of women in India to provide a general contextual background against which to situate and examine the specific experiences of Indian commercial surrogate women. Primary and secondary material from the field of social science is explored to depict the social, cultural and financial environment inhabited by Indian surrogate women.
In section III, the three elements of the strong exploitation model identified in chapter 4 are explored through the synthesis and analysis of primary qualitative studies and secondary social science material. Studies undertaken by Amrita Pande, Sharvari Karandikar et al,1 Sheela Saravanan, Malene Tanderup et al,2 Sharmila Rudrappa, Kalindi Vora and Diksha Munjal-Shankar between 2006 and 2015 are analysed and the experiences of the surrogate women identified and isolated within the themes of the three key concepts of exploitation. During this timeframe, two Indian organisations carried out research into surrogacy: The Centre for Social Research (CSR)3 administered questionnaires and conducted focus groups of various
1 Sharvari Karandikar collaborated with Lindsay B Gezinski, James R Carter and Marissa Kaloga. This study will be referred to as ‘Karandikar’ in the body of the thesis. 2 Maylene Tanderup collaborated with Sunita Reddy, Tulsi Patel and Birgitte Bruun Nielsen. This study will be referred to as ‘Tanderup’ in the body of the thesis. 3 Centre for Social Research, Surrogate Motherhood-Ethical or Commercial (Delhi and Mumbai), Final Report (undated); Centre for Social Research, Surrogate Motherhood-Ethical or Commercial 188
commercial surrogacy participants, and Sama Resource Group for Women and Health (Sama)4 carried out interviews with surrogate women. The reports published by these organisations inform analysis in this thesis.
The chapter concludes there is some evidence that surrogate women in India are exploited in the sense identified by the conceptualisation of exploitation adopted in this thesis; that is, there is some evidence of taking advantage of vulnerability, defective consent, and unfair distribution of benefits. However, analysis of the primary qualitative studies and secondary social science material shows that there is no ‘typical’ experience of exploitation by Indian surrogate women. The experiences of the women can best be viewed as occupying points on a spectrum so that some are highly likely to occur, other experiences occur more often than not, and some experiences are infrequent. Those experiences that are ‘highly likely’ to occur are very strongly supported by the qualitative evidence and particularly salient in the context of this thesis. Those which are ‘more likely than not’ to occur are well supported by the qualitative evidence and moderately salient; and those which occur ‘infrequently’ gain only some support from the qualitative evidence and are minimally salient in the context of the thesis. It is acknowledged that qualitative research, no matter how strong and powerful, cannot be regarded as quantitative in nature and is applicable and relevant only to the participants in the studies informing this thesis.
While the focus of this thesis is on Australian intended parents engaging in commercial surrogacy arrangements in India, it should be noted that a limitation of these studies is that the evidence does not distinguish the country of origin of the intended parents in every case. To that extent, it cannot be concluded that the findings relate only to surrogate women who enter into commercial surrogacy arrangements with Australian intended parents. However, the respondents in the empirical studies analysed are engaged in commercial surrogacy arrangements rather than altruistic surrogacy. Since the dominant value relied upon for prohibiting commercial surrogacy in Australia is the assumption that it exploits surrogate
(Anand, Surat and Jamnagar) (undated) http://www.csrindia.org/about-us/publications/research- studies.
4 Sama Resource Group for Women and Health, ‘Birthing a Market: A Study on Commercial Surrogacy’ (2012) New Delhi http://www.samawomenshealth.in/category/publications/research- reports. 189
women, there is significant value in ascertaining whether commercial surrogacy has been found by these empirical studies to exploit Indian surrogate women and, if so, how and to what extent in individual cases, and with what breadth when applied to the entire experience of all such women. Furthermore, the findings are still germane and translatable to the overall questions posed in this thesis, since it is the nature of the transaction overall rather than the specific parties involved that is relevant. It is acknowledged that at the time the studies were undertaken, commercial surrogacy in India was available to Australian intended parents although in Queensland, New South Wales and the Australian Capital Territory, entering to these transaction was, and is an offence, as detailed in Chapter 2. For this reason, Australian intended parents could have engaged in coersive behaviour in order to remain undetected and anonymous. However the studies relied upon provide no evidence of this and it is raised simply to flag a possible limitation to the findings of this thesis.
The following section provides a brief description of Indian society to place the physical, social and economic environment of Indian surrogate women in the context of the general Indian population. It is important to note that statistical illustrations relating to India vary significantly depending on the regions concerned, so that a statistic that covers all of India will vary significantly between states and districts.
II THE GENERAL CONTEXT OF INDIAN SOCIETY – ECONOMICS, EDUCATION, CULTURE AND HEALTH
India is a complex, multifaceted nation. Religion, culture, food, dress, literacy and education levels vary throughout the country. There is also significant difference in rural and urban lifestyles. The object of this part is to provide an overall general perspective of life in India. It is beyond the scope of this thesis to provide the intricacies and incongruities of each disparate region.
In exploring the Indian landscape, this section focuses on the key themes of economic environment, education and literacy, culture and healthcare for women. The reason for this is to situate the position of Indian women generally and, more particularly, those women who possess the demographic characteristics exhibited by Indian surrogate women. The following section will touch on these concepts in order 190
to place them in context. Much of the information in this section has been garnered from the Indian census which occurs every 10 years, the last being taken in 2011;5 the National Family Health Survey of 2005–06 (NFHS-3) and two reports generated from information taken from the reports;6 and the National Family Health Survey of 2015-16 (NFHS-4).7 Other resources include the United Nations Human Development Index and the World Bank. The information provided in this section will focus on India as a whole, or the regions of Gujarat and Delhi, as these are known centres of commercial surrogacy and where the empirical research examined in this thesis occurred.8 The synthesis captures four broad defining features of Indian society that are relevant to the further analysis in section III and chapter 6. These features are: economic environment including poverty; living standards; employment and income; education and literacy; culture including religion, class, caste and gender ratios; and healthcare for women.
A Economic Environment Poverty and living standards. In the last two decades, poverty in India has been significantly reduced as a result of a number of economic reforms introduced in the
5 Office of the Registrar General and Minister for Home Affairs and Census Commissioner, Ministry of Home Affairs, India, Census of India 2011
1990s. In 1994, 45% of the population of India lived in poverty.9 By 2014, this figure had reduced to 21.9%.10 However, there are still significant economic disparities between the rural and urban regions of the country.
The reduction in poverty brought about improvements to living standards. In the 10 years from the Indian census in 2001 to 2011, the overall percentage of Indian households with available drinking water within the premises increased from 39% to 46.6%. However, there are significant differences in the availability of drinking water in rural and urban households. The 2011 census identified 71.2% of urban households compared to only 35% of rural households had drinking water located within the premises. Considering almost 70% of the Indian population live in rural areas, a significant proportion of the population is living without drinking water within their house. 11
There are marked differences between the rural and urban sectors in India with respect to sanitation. At the time of the 2011 census, 36.4% of households in India had a water closet. Again, most of these households were in the urban sector (72.6%). Sixty-nine percent (69.3%) of the rural population had no latrine (water closet, pit latrine or other) although this was an improvement from the 2001 census by 8.7%. One area of significant change to the rural sector in the 10 years from the 2001 to 2011 census was the availability of electricity. In 2001, electricity was the main source of lighting in 43.6% of rural households. In 2011, this figure had increased by 11.7% to 55.3%.12
However, like many developing countries, India has an increasing population of urban poor.13 With a rapid urban population growth rate of 2.3% due to a natural increase in population, migration from rural areas, and a top heavy hierarchy, problems such as ‘crowding, degradation of the environment, the development of slums, disparities in living conditions and limited access to services’ arose.14 There
9 R Gupta, S Sankhe, R Dobbs, J Woetzel et al, ‘From Poverty to Empowerment: India’s Imperative for Jobs, Growth, and Effective Basic Services’ (McKinsey Global Institute, Mumbai, 2014) 1. 10 United Nations Development Programme Human Development Report, Human Development for Everyone (2016) Table 6, 218 http://hdr.undp.org/en/composite/MPI. 11 Office of the Registrar General and Minister for Home Affairs and Census Commissioner, India, Census of India 2011
is a distinct division in the urban population between those who have access to the benefits of urban living and those who do not. Those without access lack regular employment, healthcare, and tenure. Access to sanitation is poor, conditions are over-crowded, and discrimination is rife.15 Referred to as ‘slum-dwellers,’16 it is estimated 8.23 million households in urban areas of India live in slum conditions.17
Income and employment of women. Approximately 30% of the total Indian population were recorded as ‘main workers’ in the 2011 census. Main workers are defined as ‘those workers who had worked for the major part of the reference period’. However, this figure includes children who are not of working age. ‘Work’ is defined as ‘participation in any economically productive activity with or without compensation, wages or profit’. It includes part-time help or unpaid work on a farm, family enterprise or in any other economic activity. Persons engaged in cultivation or milk production even solely for domestic consumption are also treated as workers. The reference period for determining a worker is ‘one year preceding the date of survey ie six (6) months or more.’ 18 In 2011, 24.6% of the main workers in India were female and 75.4% male.19 The female contribution to main workers increased only slightly from 2001, when females made up 23.2% of the main workforce. Sixty- seven percent of main workers worked in the rural sector and 32% in urban areas.
15 Ibid 7, 9. 16 Slums have statutory recognition. They are defined by the Office of the Register General and Census Commissioner (2005) as: (i) all specified areas in a town or city notified as ‘Slum’ by State/Local Government and UT Administration under an Act including a ‘Slum Act’; (ii) all areas recognised as ‘Slum’ by State/Local Government and UT Administration Housing and Slum Boards which may not have been formally notified as slum under an Act; and (iii) a compact area of at least 300 population or about 60-70 households of poorly built congested tenements, in unhygienic environment usually with inadequate infrastructure and lacking in proper sanitary and drinking water facilities. Gupta, Arnold and Lhungdim, above n 6, 10. See also Slum Areas (Improvement and Clearance) Act 1956 India (Act No. 96, 1956) s 3 which provides for the declaration of slums if the authority is satisfied that buildings in a particular area are: (a) in any respect unfit for human habitation; or (b) by reason of dilapidation, overcrowding, faulty arrangement and design of such buildings, narrowness or faulty arrangement of streets, lack of ventilation, light or sanitation facilities, or any combination of these factors, are detrimental to safety, health or morals. 17 Gupta, Arnold and Lhungdim, above n 6, 12, 19. 18 Persons enumerated are those persons who are present in the household during the entire period of enumeration. Office of the Registrar General and Minister for Home Affairs and Census Commissioner, India, Census of India (2011) http://censusindia.gov.in/2011census/censusinfodashboard/index.html. 19 By way of comparison, at August 2016, 46.2% of employees in Australia were women. This figure includes both full-time and part-time work. Australian Government, Workplace Gender Equality Agency, Gender Workplace Statistics at a Glance (2016) https://www.wgea.gov.au/sites/default/files/Stats_at_a_Glance.pdf. 193
Within the rural sector, 27.6% of main workers are female and within the urban sector this figure was 18.5%.20
The NFHS-3 publication on Gender, Equality and Women’s Empowerment in India (published in 2009) notes ‘a slow but steady increase in ever-married women’s employment … from NFHS-1 (1992-93) to NFHS-3 (2005-6)’.21 In the 13 years between the surveys, employment of married women rose by 11% from 33% to 44%.22 The NFHS-3 report provides more accurate statistics for employment, as samples were taken from the working population, being women aged 15-49 years and men aged 15-54 years. In this context, over 36% of women and 85% of men were employed in 2005–06, indicating that women were less than half as likely as men to be employed in India.23 Of those women employed, 27% and 41% were employed in the urban and rural sectors respectively. Thirty-sex percent of women employed in the urban sector were production workers, 19% held professional, technical, administrative or managerial positions, 11% worked in agriculture, and 9% in sales. The majority of female workers in the rural sector were agricultural workers (73%) with 18% being production workers. The employment nature of the remaining 9% was not specified. Employment figures for the 2015–16 NFHS-4 survey are not available at the time of writing, except to note that 24.6% of women had worked in the last 12 months and been paid in cash.24 However, figures from the Organisation for Economic Co-operation and Development (OECD) taken in 2014 indicate that the employment rate for those over 15 years old was 77.2% for men and 26.0% for women. These figures are similar to those reported by the United Nations Human Development Index which reported 79.1% of males and 26.8% of females aged 15 years and over were employed in the labour force.25 While these figures
20 Office of the Registrar General and Minister for Home Affairs and Census Commissioner, India, Census of India (2011) http://censusindia.gov.in/2011census/censusinfodashboard/index.html. 21 Kishor and Gupta, above n 6, 51. 22 Ibid. 23 Ministry of Health and Family Welfare, Government of India, International Institute for Population Sciences (IIPS) and Macro International, National Family Health Survey (NFHS-3) 2005-06 India Volume 1 Mumbai IIPS (2007) xxxv; Gupta, Arnold and Lhungdim, above n 6, 70. 24 Ministry of Health and Family Welfare, Government of India, International Institute for Population Sciences, National Family Health Survey (NHFS-4) 2015-16 (2014) India Fact Sheet, 6 http://rchiips.org/nfhs/pdf/NFHS4/India.pdf. 25 United Nations Development Programme Human Development Report, Human Development for Everyone (2016) Table 5, 216 http://hdr.undp.org/en/composite/GII. 194
differ to those provided in the NFHS-3, the percentage of men employed remains significantly greater than women.26
In 2005-06, only 15% of women in India aged 15-49 years of age held a bank or savings account that they used. In Delhi, the figure was 30% and in Gujarat it was 10-19%. By 2015-16, this figure had risen to 53% in India overall, and 64% and 48% in Delhi and Gujarat respectively. Ownership of real property by women was 38% in 2015–16, whereas this statistic was not recorded in NFHS-3 in 2005-06. Interestingly, 46% of women have access to a mobile phone. Again, this statistic was not recorded in 2005–6.
B Education and Literacy According to the Indian census 2011, 73% of India’s overall population and 65% of women were literate. 27 Narrowing that down to the area of Gujarat from where much of the empirical research on commercial surrogacy has been conducted, 70% of females were literate overall but in rural areas the literacy rate of women was 61%. The other area from which empirical research was sourced is Delhi where the literacy statistics are slightly higher. In 2011, over 80% of women over the age of 7 years were literate with the figure dropping to 73% in rural areas.28
In 2015–16, the literacy rate of women in India was listed in NFHS-4 as 68.4% overall, with Delhi and Gujarat women having a literacy rate of 82% and 73% respectively. Rural literacy was lower in Gujarat at 64.8%. See Tables 5.1, 5.2 and 5.3. (‘na’ indicates there is no information at the time of writing).
Table 5.1: Literacy rate in India
India % Census (2011) NFHS-4 (2015-16)
26 OECD (2017,) Economic Surveys: India (OECD Publishing, 2017) 9 http://dx.doi.org/10.1787/eco_surveys-ind-2017-en. 27 Office of the Registrar General and Minister for Home Affairs and Census Commissioner, India, Census of India 2011
Urban Rural Urban Rural Overall literacy 72.99 67.77 na na Female literacy 64.64 57.93 68.4 61.5 Male literacy 80.89 77.15 85.7 82.6
Table 5.2: Literacy rate in Gujarat
Gujarat % Census (2011) NFHS-4 (2015-16)
Urban Rural Urban Rural Overall literacy 78.03 71.71 na na Female literacy 69.68 61.36 72.9 64.8 Male literacy 85.75 81.61 89.6 86.6
Table 5.3: Literacy rate in Delhi
Delhi % Census (2011) NFHS-4 (2015-16)
Urban Rural Urban Rural Overall literacy 86.21 81.86 na na Female literacy 80.76 73.1 81.8 na Male literacy 90.94 89.37 89.3 na
The NFHS-3 report states that overall 66% of girls and 75% of boys age 6–17 attend school.29 However, the attendance rates drop in the later years with only 49% of boys and 34% of girls aged 15–17 years attending school.30 The figures indicate that there is little gender differentiation in attendance at the lower grades (children aged 6–10 years) with 957 girls attending per 1000 boys. However, the gap widens with age. In the 11–14-year bracket, 884 girls per 1000 boys attend, and that figure drops to 717 girls at age 15–17 years. Furthermore, the gender disparity is largely constrained to the rural sector with little variance in gender of those who attend school in the urban areas.31 However, there is significant variation in education levels throughout the individual states of India.32 The statistics available from NFHS-4 in 2015-16 reveal 81.7% of females over the age of 6 years have attended school and this figure is
29 Kishor and Gupta, above n 6, 20. This information is not available from the National Family Health Survey 2015-16 (NFHS-4) as the report is yet to be published. 30 Ibid 21. 31 Ibid. 32 Ministry of Health and Family Welfare, Government of India, International Institute for Population Sciences (IIPS) and Macro International, National Family Health Survey (NFHS-3) 2005-06 India Volume 1 Mumbai IIPS (2007) xxx. 196
78.5% in rural areas. However, there is no information about frequency of attendance or attrition rates with age.
The United Nations Human Development Index reports that 35.3% of women and 61.4% of men receive some secondary education. The mean years of schooling in 2015 were reported at 4.8 years for females and 8.2 for males. Again, these figures differ from the statistics provided by the Indian health surveys; however, the disparity in education between men and women is apparent with the exposure of men to education just under twice that of women.33
C Culture/Religion/Caste India defines itself as constituted into a ‘sovereign, socialist, secular, democratic republic’.34 It is a complex, multifarious pluralistic nation. Discrimination on the basis of ‘religion, race, caste, sex, place of birth’ is prohibited under the Constitution of India.35 Paradoxically, the majority Hindu population ‘affirms and upholds the caste system as one of its external defining features’.36 The Scheduled Caste (formerly known as Dalits or by the derogatory term ‘Untouchables’) refers to disadvantaged Hindu, Sikh or Buddhist groups. There are an estimated 160 million members of this group in India constituting approximately 16% of the population. ‘Untouchability’ was abolished under the Constitution in 1950.37 This has been reinforced by subsequent legislative enactments and amendments.38 However, the literature suggests the practice still occurs and manifests in inhumane forms of discrimination and violence in contemporary India.39 The scheduled tribes are disadvantaged people who are not members of the scheduled caste.40
33 United Nations Development Programme Human Development Report, Human Development for Everyone (2016) Table 4, 210 http://hdr.undp.org/en/composite/GDI 34 Constitution of India, Preamble http://lawmin.nic.in/olwing/coi/coi- english/Const.Pock%202Pg.Rom8Fsss%283%29.pdf 35 Article 15 provides the State shall not discriminate against any citizen on the grounds only of religion, race, caste, sex or place of birth. 36 Robert J Stephens, ‘Sites of Conflict in the Indian Secular State: Secularism, Caste and Religious Conversion’ (2007) 49(2) Journal of Church and State 251, 253. 37 Article 17 provides ‘Untouchability’ is abolished and its practice in any form is prohibited. The enforcement of any disability arising out of ‘Untouchability’ shall be an offence punishable in accordance with law. 38 Untouchability Offences Act 1955 (India); Protection of Civil Rights Act 1976 (India); Bonded Labour (Abolition) Act 1976 (India); Scheduled Castes and Scheduled Tribes Prevention of Atrocities Act 1989 (India); Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act 1993 (India). 39 Bob Clifford, ‘Dalit Rights are Human Rights: Caste Discrimination, International Activism, and the Construction of a New Human Rights Issue’ (2007) 29 Human Rights Quarterly 167, 168; 197
The 2011 census identifies 80.5% of households as Hindu, 13.2% as Muslim, 2.3% Christian, 1.9% Sikh and 0.8% Buddhist, 0.4% Jains and 0.6% other religions and persuasions. 0.1% did not state their religion. All other religions account for less than 1% of households.41 In addition, 19% of household heads belong to the scheduled castes, 8% to the scheduled tribes and 40% to the ‘other backward classes’.42 About one-third do not belong to any of these groups.43 However, it must be recognised that these figures are not an even distribution across the nation. Disparity within and between regions in terms of religious affiliations and beliefs is profound.
Within Hindu society, there were four traditional hierarchal divisions known as Varnas.44 At the top of the hierarchal chain were the Brahmins which consisted of priests and professional people such as teachers and doctors; followed by the Kshartiyas who were warriors and rulers. Next in the hierarchal ladder were the Vaishyas who were traders and artisans. The fourth Varna was the Shudras consisting of serfs and labourers.45 Varna ranking is immobile, allocated by birth and cannot be earned or altered by contribution to society. Supplementing the Varna framework is a further division into Jatis of which there are approximately 3,000
Debjani Ganguly, ‘Pain, Personhood and the Collective: Dalit Life Narratives’ (2009) 33 Asian Studies Review 429, 430 states ‘according to the modest estimates of the National Crime Bureau, every day two Dalits are murdered, three Dalit women are raped, two Dalit houses are destroyed and eleven Dalits are beaten up’. Annapurna Waughray, ‘Caste Discrimination and Minority Rights: The Case of India’s Dalits’ (2010) 17 International Journal on Minority and Group Rights 327, 328. 40 Constitution (Scheduled Castes) Orders (Amendment) Act 1990 India s 4: …no person who professes a religion different from the Hindu, Sikh or Buddhist religion shall be deemed to be a member of a Scheduled caste. 41 Stephens, above n 36, 256. 42 Article 16 (1) of the Indian Constitution provides that ‘there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State’. Pursuant to Article 16 (4): ‘nothing … shall prevent the State from making any provision for the reservation in appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State’. Following recommendations of the Mandal Commission in 1990, and in order to achieve equal employment opportunity, the Indian government ‘provides 27% reservation in Central posts and services to Backward Classes’: Government of India, Ministry of Social Justice & Empowerment, National Commission for Backward Classes Annual Report 2014-15, 4 www.ncbc.nic.in. 43 Ministry of Health and Family Welfare, Government of India, International Institute for Population Sciences (IIPS) and Macro International, National Family Health Survey (NFHS-3) 2005-06 India Volume 1 Mumbai IIPS (2007) xxix. 44 Annapurna Waughray, ‘Caste Discrimination and Minority Rights’ (2010) 17 International Journal on Minority and Group Rights 327, 328; James Manor, ‘After Fifty Years of Political and Social Change: Caste Associations and Politics in India’ (2012) 85(2) Pacific Affairs 355, 355. 45 David Vaid, ‘The Caste-Class Association in India: An Empirical Analysis’ (2012) 52(2) Asian Survey 395, 400; Waughray, above n 44, 328. 198
groups.46 Jatis are ‘smaller, endogenous caste groups’, some of which have aligned with each other to form Jati clusters, which, by virtue of their numbers, can exert significant political influence.47 Traditionally the Dalits or ‘untouchables’ sat outside and beneath this framework.
One argument in response to the delay in India’s economic growth is the influence of caste duties, retribution and reincarnation. The aspiration for rebirth into a higher caste through reincarnation is fulfilled by satisfying caste duties. This deterred innovation because it would impede or conflict with caste duties. Economic freedom was therefore restricted.48 However, in recent times, India has become one of the 10 fastest growing economies in the world with a rise in its gross national product of almost 60% in the five years from 2001–2 to 2005–6.49
Gender ratio. ‘The female to male sex ratio has declined substantially since 1900 with the result of a female deficit in the population.’50 This is largely due to the sex differential in child mortality.51
Historically. Literature on the Gujarat region during the nineteenth century suggests female infanticide was practised by locally dominant castes,52 particularly at the higher caste levels53 in order to protect social status.54 The availability of eligible husbands for women within the upper caste hierarchy was restricted to a few elite villages. Having a single woman in the family brought dishonour. Other theories for female infanticide relate to the nature of the farming cultivation undertaken by the family. The heavy labour of wheat farming required male strength to work the plough; whereas the less arduous task of cultivating rice could be undertaken by
46 Vaid, above n 45, 400; Waughray, above n 44, 328. 47 Manor, above n 44, 356. 48 E Weede, ‘The Rise of India: Overcoming Caste Society and Permit-License Quota Raj, Implementing Some Economic Freedom’ (2010) 18(2) Asian Journal of Political Science 129, 132. 49 Ministry of Health and Family Welfare, Government of India, International Institute for Population Sciences (IIPS) and Macro International National Family Health Survey (NFHS-3) 2005-06 India Volume 1 Mumbai: IIPS (2007) xxxv; Gupta, Arnold and Lhungdim, above n 6, 3. 50 Ministry of Health and Family Welfare, Government of India, International Institute for Population Sciences (IIPS) and Macro International, National Family Health Survey (NFHS-3) 2005-06 India Volume 1 Mumbai IIPS (2007) 1.2. 51 Prabir C Bhattacharya, ‘Economic Development, Gender Inequality and Demographic Outcomes: Evidence from India’ (2006) 32(2) Population and Development Review 263, 263. 52 L S Vishwanath, ‘Conceptual Understanding of Female Infanticide’ in B S Baviskar and Rulsi Patel (eds), Understanding Indian Society Past and Present (Orient BlackSwan Private Limited, 2010) 91, 99. 53 Bhattacharya, above n 51, 274, 279. 54 Vishwanath, above n 52, 100. 199
women. Historically, female infanticide has been associated with economic advantage, cultural belief and management and control of resources.55
Present. The Indian census reveals that in 2001 there were 927 females per 1000 males in the 0–6-year bracket. This figure had reduced to 918 females by the 2005- 06 census56 at which point it was noted that a decline in female births increased with wealth. With an increase in ultrasound availability among the wealthy, and a decline in ultrasound testing amongst women who had living sons, the National Family Health Survey concluded that the technology was being used for sex selection.57 The practice of sex selection was prohibited in 2003.58 The 2011 census recorded a similar ratio as the 2005-06 survey of 918 females per 1000 males in the 0–6 age bracket. Generally, these figures are slightly higher in rural households with the census recording a ratio of 923 females, compared to 905 in the urban sector. In 2015–16, life expectancy at birth was 69.9 years for females and 66.9 for males.59
Child mortality in general has decreased in India due to improvements in access to drinking water, medical facilities and transport. Female literacy and an increase of females in the labour force also has a positive impact.60 As at 2005–06, the post-natal mortality rate of children aged 1–11 months was 21 females per 1,000 live births, and 15 males. In the 1–4-year age-group the child mortality rate for females was 61% higher than that of males overall, although females born to wealthier parents had a higher chance of early childhood survival than their poorer counterparts. The NFHS-3 attributed this to ‘gender-based discrimination in access to life-sustaining
55 Ibid. 56 Ministry of Health and Family Welfare, Government of India, International Institute for Population Sciences (IIPS) and Macro International, National Family Health Survey (NFHS-3) 2005-06 India Volume 1, Mumbai IIPS (2007) xxix. 57 Ministry of Health and Family Welfare, Government of India, International Institute for Population Sciences (IIPS) and Macro International, National Family Health Survey (NFHS-3) 2005-06 India Volume 1, Mumbai: IIPS (2007) xxxvi http://rchiips.org/NFHS/NFHS-3%20Data/VOL 1/Summary%20of%20Findings%20(6868K).pdf 58 The Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act 1994 (India) (Act No. 57 of 1994) was amended by Act 14 of 2003 and re-named the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act 1994. The amended long title included the words ‘and for the prevention of their misuse for sex determination leading to female foeticide and for matters connected therewith or incidental thereto’. Pursuant to s 3A, sex selection on any tissue, embryo, conceptus, fluid or gametes is prohibited. 59 United Nations Development Programme Human Development Report, Human Development for Everyone (2016) Table 4, 210. http://hdr.undp.org/en/composite/GDI. 60 Bhattacharya, above n 51, 279. 200
resources, including food and medical care’.61 The overall infant mortality rate in 2005-06 was 57 infants per 1000 live births.62 This figure has reduced to 41 as at 2015–16.63
Forty-four percent of children aged 12–23 months in India were fully vaccinated in 2005 with 5% not receiving any vaccinations.64 Forty-two percent of fully immunized children were female and 45% were male. Figures available from the 2015-16 survey indicate that 50.4% of children in Gujarat and 66.4% in Delhi were fully immunised. Overall immunisation for children aged between 12–23 months in India has increased from 42% in 2005–6 to 62% in 2015–1665 thereby indicating an overall increase in health awareness and reduction in child mortality.
The NFHS-3 report asserts there is a direct relationship between maternal participation in household decision-making and immunization levels generally, as well as gender disparity in immunization. The greater the participation of the mother, the higher the immunization rate generally, and the lower the gender disparity. In other words, mothers who were involved in household decision-making were more likely to immunize their daughters.66 In 2005–06, 36.7% of married women in India participated in household decisions.67 However, by 2015-16, this figure had increased to 84%. In addition, women with less education were less likely to be involved in health care decisions.
61 Kishor and Gupta, above n 6, 16. No figures on this topic are available from the National Family Health Survey 2015-16 (NFHS-4). 62 Ministry of Health and Family Welfare, Government of India, International Institute for Population Sciences (IIPS) and Macro International, National Family Health Survey (NFHS-3) 2005-06 India Volume 1 Mumbai IIPS (2007) xxix. 63 Ministry of Health and Family Welfare, Government of India, International Institute for Population Sciences, National Family Health Survey (NFHS-4) 2015-16, India Fact Sheet 2. 64 Ministry of Health and Family Welfare, Government of India, International Institute for Population Sciences (IIPS) and Macro International, National Family Health Survey (NFHS-3) 2005-06 India Volume 1 Mumbai IIPS (2007) xxix. According to the World Health Organisation, children are fully vaccinated if they receive one BCG injection to protect against tuberculosis, three doses of DPT (diphtheria, pertussis and tetanus), three doses of polio vaccine, and one measles vaccine by the age of 12 months. Gupta, Arnold and Lhungdim, above n 6, 48. 65 Ministry of Health and Family Welfare, Government of India, International Institute for Population Sciences, National Family Health Survey (NFHS-4) 2015-16, India Fact Sheet 2. 66 Kishor and Gupta, above n 6, 113. 67 The questions asked concerned decisions surrounding healthcare, large household purchases, daily needs and visiting family and relatives. Thirty-seven percent participated in making decisions in relation to all four issues. Ministry of Health and Family Welfare, Government of India, International Institute for Population Sciences (IIPS) and Macro International, National Family Health Survey (NFHS-3) 2005-06 India Volume 1 Mumbai IIPS xlv. 201
The Indian government has a number of programs in place to increase the education and empowerment of women, particularly those from rural areas in socially and economically marginalised groups.68
D Healthcare for Women Since 1951 there have been a number of government instigated health programs launched in India. Initially, the focus was on regulating the population growth. Subsequent programs included immunisation and educational and clinical programs aimed at strengthening child and maternal health in India.69 In 1983, India adopted a National Health Policy Statement with the declaration of ‘Health for All’ which prompted the expansion of primary healthcare throughout that decade.70 In 2000, the National Population Policy was released with ‘the overriding objective of economic and social development’ in order ‘to improve the quality of lives that people lead, to enhance their well-being and to provide them with opportunities and choices to become productive assets in society’.71 Strategies included ‘compulsory education for children up to 14 years of age, reduction in the infant mortality rate to less than 30 per 1,000 live births and maternal mortality ratio to less than 100 per 100,000 live births, immunization of children, trained personnel to assist with all births, 100% registration of births, deaths, marriages and pregnancies … promotion of delayed marriages for girls, universal access to family planning information and services and prevention of major infectious diseases…’.72
The Policy was revised in 2002 in light of statistics that revealed an uneven progression of and disparity in health goals across the rural-urban sectors, such that vulnerable sections of society were still receiving inadequate healthcare. The new policy sought ‘to achieve an acceptable standard of good health among the general
68 Department of School Education and Literacy, Department of Higher Education, Ministry of Human Resource Development, Government of India, Annual Report 2013-2014, 7 http://mhrd.gov.in/sites/upload_files/mhrd/files/document-reports/AR2013-14.pdf. 69 See, e.g., Oral Rehydration Therapy Program, Regional Institutes of Maternal and Child Health, Universal Immunization Program, Maternal and Child Health Supplemental Programme, Integrated Child Development Services Program. Gupta, Arnold, Lhungdim, above n 6, 48 70 Department of Health and Family Welfare, Ministry of Health and Family Welfare Government of India, Annual Report (2015-16) i. 71 Ministry of Health and Family Welfare, Government of India, International Institute for Population Sciences (IIPS) and Macro International, National Family Health Survey (NFHS-3), 2005-06: India Volume 1 Mumbai: IIPS (2007) 6. 72 Ibid. 202
population of the country’ by ‘increas(ing) access to the decentralized public health system’ through the establishment of ‘new infrastructure in existing institutions’.73
A state-specific policy, known as the National Rural Health Mission (NRHM), was released in 2005 that focused on those states with weak public health infrastructure.74 There was a strong emphasis on the health needs of poor women and children. Mothers and health workers were encouraged to comply with and participate in the program.75 This focus on individual responsibility was ‘a product of changing global norms and discourses centred on human rights and dignity’.76 However, follow-up surveys suggested not all aspects of the program were being embraced by the women it sought to help. For example, attendance at community centres (known as Anganwadis) established throughout the country to provide health, nutrition and education to children under six years and pregnant and lactating mothers was low.77
Over the years, the infant mortality rate in India has been falling steadily. In 2013, Cabinet approved the National Health Mission (NHM) with two sub-missions, the National Rural Health Mission and the National Urban Health Mission. One of the goals of the NHM is to reduce the maternal mortality ratio from 1.78 to 1 per 1000 live births; and infant mortality from 42 to 25 per 1000 births by 2017.78 As noted in section IIC, the child mortality rate in 2015-16 was situated at 41 infants per 1000 live births with the rural sector having a significant greater number of deaths at 46 compared to 29 in the urban sector.79 The maternal mortality rate is 1.74 deaths per 1000 live births.80
In terms of maternal health care, 76% of women who gave birth to a live child between 2001 and 2005 received antenatal care, although the figure was lower for women in rural and slum areas. However, the quality of the care varied. For example, less than 25% were examined abdominally during the antenatal period and
73 Ibid. 74 Ibid 7. 75 Sidsel Roalkvam, ‘Health Governance in India: Citizenship as Situated Practice’ (2014) 9(8) Global Public Health 910, 914. 76 Ibid 915. 77 Gupta, Arnold and Lhungdim, above n 6, 50. 78 Department of Health and Family Welfare, Ministry of Health and Family Welfare, Government of India, Annual Report 2015-16, ii. 79 Ministry of Health and Family Welfare, Government of India, International Institute for Population Sciences, National Family Health Survey (NFHS-4) India Fact Sheet (2015-16). 80 United Nations Development Programme Human Development Report, Human Development for Everyone (2016) Table 5, 216 http://hdr.undp.org/en/composite/GII. 203
even fewer had basic checks such as weight and blood pressure carried out.81 In 2015-16, the survey included women who had received ‘full antenatal care’. ‘Full antenatal care’ was defined as ‘at least four antenatal visits, at least one tetanus toxoid injection and taking iron folic acid tablets or syrup for 100 or more days’. In Gujarat, 30.7% of women received full antenatal care with the figure dropping to 24% in rural areas. The figure was a little higher in Delhi at 37.3% with an overall figure of 21% of women in India receiving full antenatal care. 82 However, there has been a significant increase in post-natal care. Sixty-two percent of women in India received post-natal care in 2015-16, whereas in 2005-6 this figure was only 34.6%.
Institutional births in 2015-16 amounted to 88.7% in Gujarat, 84.4% in Delhi and 78.9% in India overall, which is a significant increase from the 2005-06 data of 52.7%.83 An increase in the mother’s education and wealth increases the likelihood of the delivery taking place in a healthcare facility rather than at home. This is due to an increased awareness of the benefits of professional medical treatment. Urban women are more likely to use health facilities than those from the rural sector,84 and more likely to seek post-natal medical checks.85
Delivery by caesarean section is not considered the norm with only 9% of children born in India in the five years prior to NFHS-3 being delivered in this manner. In 2015-16, this figure increased to 18.4% in Gujarat, 23.7% in Delhi and 17.2% in India overall. While there has been a significant increase in caesarean section deliveries, it occurs in a minority of deliveries. Women in urban areas were three times more likely to undergo caesarean section than their rural counterparts.86 Post-
81 Ministry of Health and Family Welfare, Government of India, International Institute for Population Sciences (IIPS) and Macro International, National Family Health Survey (NFHS-3) 2005-06 India Volume 1 Mumbai IIPS (2007) xxxv; Gupta, Arnold and Lhungdim, above n 6, 44. 82 Ministry of Health and Family Welfare, Government of India, International Institute for Population Sciences, National Family Health survey (NFHS-4) 2015-16, State Fact Sheet Gujarat http://rchiips.org/nfhs/factsheet_NFHS-4.shtml. 83 Ibid. 84 Ministry of Health and Family Welfare, Government of India, International Institute for Population Sciences (IIPS) and Macro International, National Family Health Survey (NFHS-3) 2005-06 India Volume 1 Mumbai IIPS (2007) xxxv; Gupta, Arnold and Lhungdim, above n 6, 209. 85 Ministry of Health and Family Welfare, Government of India, International Institute for Population Sciences (IIPS) and Macro International, National Family Health Survey (NFHS-3) 2005-06 India Volume 1, Mumbai IIPS (2007) xxxv; Gupta, Arnold and Lhungdim, above n 6, 216. 86The survey reveals that 17% of urban women and 6% of rural women undergo caesarean sections. Ministry of Health and Family Welfare, Government of India, International Institute for Population Sciences (IIPS) and Macro International, National Family Health Survey (NFHS-3) 2005-06 India Volume 1 Mumbai IIPS (2007) xxxv; Gupta, Arnold and Lhungdim, above n 6, 209. 204
partum complications indicated by extensive vaginal bleeding and high fever were reported to NFHS-3 by 12-14% of women.87 At the time of writing, there is no information about this from NFHS-4.
In the last two decades, India has undergone significant change in living conditions and healthcare. For most of the population, this has had a positive impact in terms of living standards and access to medical care. However, those residing in rural areas and the ‘urban poor’ are identified as population groups which currently receive fewer benefits than other members of India’s population. On a worldwide perspective, India has a low gender equality ratio with little over 26% of the labour force represented by women88 and a gender development index of 5, which indicates the greatest disparity of achievement between men and women taking into account the dimensions of health, knowledge and living standards. The Indian government has programs aimed at empowering and educating women.89
E Summary Utilising key data obtained from Indian sources including the Indian Census 2011 and the National Family Health Surveys of 2005-06 and 2015-16 (NFHS-3 and NFHS-4) as well as universal resources including the United Nations Development Programme, the Organisation for Economic Co-operation and Development (OECD) and the World Bank, section II demonstrated that India is facing an upward trajectory in the standard of living of its residents due to the implementation of a number of government-initiated programs. Government reform led to a reduction in overall poverty and improvement of basic services, such as access to drinking water, sanitation and health. Over the past two decades, living standards in India have significantly increased. However, poverty is still highly visible in both the traditional rural sector and as a result of the creation of an ‘urban poor’.
87 Ministry of Health and Family Welfare, Government of India, International Institute for Population Sciences (IIPS) and Macro International, National Family Health Survey (NFHS-3) 2005-06 India Volume 1 Mumbai IIPS (2007) xxxv; Gupta, Arnold and Lhungdim, above n 6, 219. 88 United Nations Development Programme Human Development Report, Human Development for Everyone (2016) Table 5, 216 http://hdr.undp.org/en/composite/GII. 89 United Nations Development Programme Human Development Report, Human Development for Everyone (2016) Table 4, 210 http://hdr.undp.org/en/composite/GDI. 205
Statistics reveal that there are still marked differences in the living standards of women living in urban areas and those residing in the rural sector, with rural women having a lower literacy rate and less access to healthcare. Furthermore, Indian males are better educated and more literate than their female counterparts.
The infant mortality rate in India has decreased. Government programs aimed at child and maternal health have been implemented. The majority of women in India receive some antenatal care although the quality of care varies. Significantly fewer women received antenatal care in rural and slum areas.
Section III analyses the lived experiences of commercial surrogate women in the context of the social, political and environmental landscape of India to determine whether the three key concepts of taking advantage of a vulnerability, defective consent, and an unfair distribution of benefits are evidenced.
III SOCIAL SCIENCE EVIDENCE OF THE EXPERIENCES OF COMMERCIAL SURROGATE WOMEN
A Introduction The aim of section III is to synthesise and critically analyse the social science evidence about the experiences of commercial surrogate women in India to inform an assessment of whether and to what extent the elements of exploitation identified in Chapter 4 are present in this context. Exploitation consists of taking advantage of a vulnerability, a defect in consent and an unfair distribution of benefits. The empirical evidence will be explored to determine whether these elements are present in the lived experiences of Indian surrogate women.
The experiences of all commercial surrogate women are not the same. As noted by Choudhury, ‘no single frame captures the entire story of surrogacy as it occurs transnationally’.90 Adding to the complexity is the knowledge that exploitation is not a straightforward narrative. The empirical evidence will be analysed to ascertain which, if any, conditions or features of exploitation commercial surrogate women experience. From this information, a determination will be made as to whether, overall, commercial surrogacy is or can be exploitative.
90 Cyra Akila Choudhury, ‘The Political Economy and Legal Regulation of Transnational Commercial Surrogate Labour’ (2015) 84 (1) Vanderbilt Journal of Transnational Law 1, 9. 206
The research undertaken was conducted by systematically and comprehensively searching social science databases.91 Seven peer-reviewed studies which focus specifically on the experiences of commercial surrogate women in India were identified. The seven key studies were conducted by Amrita Pande, Sharvari Karandikar, Sheela Saravanan, Malene Tanderup, Sharmila Rudrappa, Kalindi Vora, and Diksha Munjal-Shankar.92
Focus of the studies. The studies focus on different aspects of surrogacy relationships, interactions and experiences of the participants, and for this reason their strengths and weaknesses in specific areas vary. For example, the focus of Pande, Saravanan and Rudrappa’s work relates to the experiences and perceptions surrounding surrogacy. Pande explores stigmatisation, sexuality and how the women deal with issues such as self-worth and dignity. Saravanan is concerned more generally with the exploitation of surrogate women by the wealthy, and Karandikar explores the motivations of women who choose to become surrogate mothers paying particular attention to the decision-making role played by families and communities. Tanderup’s study observes consent and information provided to surrogate women in respect of the medical procedures they undertake, with a focus on embryo transfer, foetal reduction and the mode of delivery. The conflicting interests which arise between the various parties involved in the surrogacy process are explored by Tanderup. Pande and Saravanan only touch on these issues. Vora focusses on the
91 See chapter 1, Table 1.6 Methodology for RQ 6. 92 Amrita Pande, ‘Not an “Angel” Not a “Whore”: Surrogates as “Dirty” Workers in India’ (2009) 16 Indian Journal of Gender Studies 141; Amrita Pande, ‘“At Least I am not Sleeping with anyone”: Resisting the Stigma of Commercial Surrogacy in India’ (2010) 36(2) ProQuest Central 292; Amrita Pande, ‘Commercial Surrogacy in India: Manufacturing a Perfect Mother Worker’ (2010) 35(4) Signs 969; Amrita Pande, ‘“It May be her Eggs But it’s My Blood”: Surrogates and Everyday Forms of Kinship in India’ (2009) 32 Qual. Sociol. 379; Amrita Pande, ‘Global Reproductive Inequalities, Neo- Eugenics and Commercial Surrogacy in India’ (201) Current Sociology Monograph 244; Sharvari Karandikar et al, ‘Economic Necessity or Noble Cause? A Qualitative Study Exploring Motivations for Gestational Surrogacy in Gujarat, India’ (2014) 29 Affilia 224; Sheela Saravanan, ‘An Ethnomethodological Approach to Examine Exploitation in the Context of Capacity, Trust and Experience of Commercial Surrogacy in India’ (2013) 8(10) Philosophy, Ethics and Humanities in Medicine http://www.peh-med.com/content/8/1/10; Malene Tanderup et al, ‘Reproductive Ethics in Commercial Surrogacy: Decision-making in IVF Clinics in New Delhi, India’ (2015) Bioethical Inquiry Online DOI 10.1007/s11673-015-9642-8; Malene Tanderup et al, ‘Informed Consent in Medical Decision-making in Commercial Gestational Surrogacy: A Mixed Methods Study in New Delhi, India’ 94 Nordic Federation of Societies of Obstetrics and Gynecology, Acta Obstetrica et Gynecologica Scandinavica 465; Sharmila Rudrappa, Discounted Life: The Price of Global Surrogacy in India (New York University Press, 2015); Kalindi Vora, ‘Indian Transnational Surrogacy and the Commodification of Vital Energy’ (2009) 28 Subjectivity 266; Diksha Munjal- Shankar, ‘Autonomy, Choices and Consent in Commercial Surrogacy: Viewing Through the Indian Lens’ (2015) 7(4) Asian Bioethics Review 380. 207
relationships between the various parties in commercial surrogacy arrangements and Munjal-Shankar explores issues that surrogate women face in terms of consent, recruitment and stigma. There is a further study carried out in India that concerns surrogate women but does not focus directly on the research questions of this thesis.93 In addition, there are studies undertaken within Australia where intended parents who have accessed commercial surrogacy in India are interviewed.94 These studies are referred to if they are relevant to findings reported in the empirical research, but do not form part of the main seven peer-reviewed studies examined.95
There is also grey literature that describes empirical research about the lived experiences of Indian surrogate women. Because the grey literature emanates from reports undertaken by organisations set up to research on issues relating to the health and empowerment of Indian women and girls, it is questionable whether some of it is entirely objective. However, two reports had rigorous methodology and scored well in the Critical Appraisal Skills Programme (CASP) Qualitative Research Checklist, so have been included in the empirical resources from which information for this thesis is drawn. They are reports by Sama Resource Group for Women and Health and the Centre for Social Research.96 The two reports address most of the topics
93 Sayani Mitra and Silke Schicktanz, ‘Failed Surrogate Conceptions: Social and Ethical Aspects of Preconception Disruptions During Commercial Surrogacy in India’ (2016) 11(9) Philosophy, Ethics and Humanities in Medicine DOI 10.1186/s13010-016-0040-6. 94 Emily Jackson, Jenni Millbank, Isabel Karpin et al, ‘Learning from Cross-Border Reproduction (2017) Medical Law Review 23; Martyn A Stafford-Bell, Sam G Everingham and Karin Hammarberg, ‘Outcomes of Surrogacy Undertaken by Australians Overseas’ (2014) Medical Journal of Australia 330; Damien W Riggs, ‘Narratives of Choice Amongst White Australians Who Undertake Surrogacy Arrangements in India’ (2016) 37 Journal of Medical Humanities 313. 95 There has also been research carried out in the United Kingdom and the United States that related to altruistic surrogacy arrangements rather than those of a commercial nature and are not indicative of the experiences of Indian surrogate women. Susan Imrie and Vasanti Jadva, ‘The Long-Term Experiences of Surrogates: Relationships and Contact with Surrogacy Families in Genetic and Gestational Surrogacy Arrangements’ (2014) 29 Reproductive BioMedicine Online 424; V Jadva, S Imrie and S Golombok, ‘Surrogate Mothers 10 Year on: A Longitudinal Study of Psychological Well- Being and Relationships with the Parents and Child’ (2014) 30(2) Human Reproduction 373; Olga Van den Akker, ‘Genetic and Gestational Surrogate Mothers’ Experience of Surrogacy’ (2003) 21(2) Journal of Reproductive and Infant Psychology 145; Olga Van den Akker, ‘A Longitudinal Pre- Pregnancy to Post-Delivery Comparison of Genetic and Gestational Surrogate and Intended Mothers: Confidence and Genealogy’ (2005) 26(4) Journal of Psychosomatic Obstetrics and Gynecology 277; Eric Blyth, ‘“I wanted to be Interesting. I wanted to be able to say ‘I’ve done something interesting with my life’”: Interviews with Surrogate Mothers in Britain’ (1994) 12(3) Journal of Reproductive and Infant Psychology 189; Melinda M Hohman and Christine B Hagan, ‘Satisfaction with Surrogate Mothering: A Relational Model’ (2001) 4(1) Journal of Human Behaviour in the Social Environment 61. 96 Sama–Resource Group for Women and Health, above n 4; Centre for Social Research, Surrogate Motherhood-Ethical or Commercial (Delhi and Mumbai), above n 3; Centre for Social Research, Surrogate Motherhood-Ethical or Commercial (Anand, Surat and Jamnagar), above n 3. There is also a book by Sheela Saravanan titled A Transnational Feminist View of Surrogacy Biomarkets in 208
covered by the peer-reviewed studies, although the peer-reviewed studies generally have a specific focus, whereas the grey literature is of a more generalised nature.
In summary, empirical research which forms the basis of this chapter is drawn from seven peer-reviewed studies and two reports from non-government organisations making a total of nine studies. The nine studies will now be summarised, and key variables extracted for the purpose of critical analysis of the reliability and validity of study findings to inform their utility for analytical purposes.
B General Overview of the Nine Empirical Studies Amrita Pande. Amrita Pande was one of the first scholars to research surrogacy in India. Pande interviewed surrogate mothers, their families, doctors, intended parents and brokers in the area of Anand between 2006 and 2013.97 Anand lies in the western Indian state of Gujarat. The goal of Pande’s research was to ‘analyse surrogacy in a developing country context to get a broad view of the cultural response to surrogacy in order to open up conversations and use surrogacy as a launching pad for discussions on new forms of informal gendered and stigmatised work’.98
Pande was particularly interested in analysing surrogacy in the context of a developing country, rather than within a ‘Euro-centred and ethics oriented framework’.99 She argued that ‘Euro-Centric portrayals of surrogacy do not incorporate the reality of a developing country setting where commercial surrogacy is a survival strategy for some poor rural women’.100 In the context of how commercial surrogacy affected surrogate women, Pande focussed on surrogacy as work, interactions which take place between the actors directly involved in the surrogacy transactions, how surrogacy is perceived by others, and how surrogate
India which was published 2018. While chapters 4 and 5 are relevant to this thesis the book was published after 1 September 2017 which is the cut-off date for this thesis. It is therefore outside its scope. 97 Amrita Pande, ‘“Blood, Sweat and Dummy Tummies” Kin Labour and Transnational Surrogacy in India’ 57(1) Anthropologica 53; Pande, ‘Global Reproductive Inequalities, Neo-Eugenics and Commercial Surrogacy in India’, above n 92, 247; Pande, ‘Commercial Surrogacy in India: Manufacturing a Perfect Mother-Worker’, above n 92, 969; Pande, ‘“At Least I Am Not Sleeping with Anyone”: Resisting the Stigma of Commercial Surrogacy in India’, above n 92, 292; Pande, ‘Not an “Angel”, Not a “Whore”: Surrogates as “Dirty” Workers in India’, above n 92, 144; Pande, ‘“It May Be Her Eggs But It’s My Blood”: Surrogates and Everyday Forms of Kinship in India’, above n 92, 379. 98 Pande, ‘Not an “Angel”, Not a “Whore”: Surrogates as “Dirty” Workers in India’, above n 92, 142. 99 Ibid. 100 Ibid 144. 209
women deal with those perceptions. All the surrogate women interviewed by Pande had engaged in gestational surrogacy.
The study consisted of ‘in-depth, open-format interviews of 52 surrogate women, their husbands and in-laws, twelve intended parents, three doctors and three surrogacy brokers’. Nineteen women were interviewed in 2006, 23 in 2009 (including 6 interviewed previously) and a further 10 in 2012.101
In some cases, Pande travelled to the villages in order to interview the husbands and in-laws. Interviews were conducted in Hindi and Gujarati and took between one and five hours. Interviews were taped, and with consent, handwritten or typed following the interview. Typically, Pande asked the women to ‘tell her about their lives and how they became involved in surrogacy’.102
Consent was obtained from all the participants but it is unclear how the research was explained to the participants. Pseudonyms were used unless the participants specifically requested that their name be used. The data obtained was retrieved from face-to-face interviews or in the course of participant observations.
Pande achieved her goal of seeking a broader view of cultural responses to surrogacy. She found Indian surrogate women are stigmatised and, as a result, the women developed methods to overcome the stigma. For example, the women would compare themselves to equally needy women engaged in work perceived as being lower in morality, such as prostitution and baby selling, thereby increasing feelings of self-worth. They used ‘language of morality … to affirm their dignity … and reduce stigma’.103 In addition, they portrayed their husbands as worthy men thereby resisting the stigma attaching to men who are unable to adequately provide for their families. It was important to the women that they had not engaged in sexual relations. Pande also uncovered perceived relationships that the surrogate women establish with other parties in the surrogacy process, such as the intended parents.104
101 Pande, ‘Global Reproductive Inequalities, Neo-Eugenics and Commercial Surrogacy in India’, above n 92, 247. 102 Pande, ‘Commercial Surrogacy in India: Manufacturing a Perfect Mother-Worker’, above n 92, 974. 103 Pande, ‘Not an “Angel”, Not a “Whore”: Surrogates as “Dirty” Workers in India’, above n 92, 168. 104 Pande, ‘“It May be her Eggs but it’s My Blood”: Surrogates and Everyday Forms of Kinship in India’, above n 92, 392. 210
Pande’s research was carried out over many years and her findings are articulated in a number of peer-reviewed articles, each with a slightly different focus. While the overall findings of her research as portrayed in her publications are not relevant to this thesis, the information she uncovered in the course of her research which is contained in the articles is extremely useful.
Sharvari Karandikar, Lindsay B Gezinski, James R Carter and Marissa Kaloga. Karandikar was concerned with the motivations for becoming a surrogate mother and the role of the family and community. This research was undertaken in 2012105 using qualitative methodology. In-depth interviews were conducted with 15 surrogate women from one fertility clinic in the Anand district in the state of Gujarat India. The recruitment strategy was through contacts obtained from a clinic staff member following which a verbal script was developed and utilised to recruit subjects. Recruitment continued until saturation of data was reached.
The report states that ‘due to the high rate of illiteracy among the participants and cultural norms’106 it was not accepted practice to obtain signed consent. As a result, consent was established verbally and reinforced by participation in the study.107 An interview guide was constructed and semi-structured interviews were conducted.
The interviews were conducted in Hindi and Gujarati and translated and transcribed by the researchers. Analysis was conducted ‘reading the qualitative data line by line, identifying themes, coding categories and developing matrices to uncover relationships between themes and categories’.108 Participants were given pseudonyms.
Karandikar identified the following limitations to her study. First, some of the women interviewed had a continuing, income-generating relationship with the clinic through the performance of services; therefore, they may not have been entirely open in their discussions in terms of disclosing negative aspects of the particular clinic. Second, the information was taken from a limited group of surrogate women at a specific point in time and does not apply to all surrogate women in India. Karandikar found most of the women were from low-socio-economic backgrounds with little or
105 Karandikar Gezinski and Carter et al, above n 92, 224. 106 Ibid 226. 107 Ibid. 108 Ibid. 211
no formal education. Financial gain was the motivation to engage in surrogacy. Almost half of the women (7/15) were approached by surrogacy brokers who received a finder’s fee. Approval from the surrogate’s husband was considered mandatory by both the surrogate and the clinic. The community at large was opposed to surrogacy. For this reason, the women hid their arrangements from their extended family for fear of retribution or disapproval.109
Areas for future research identified by the study included the development of regulatory frameworks around payments to surrogate women, education, and the disclosure of risks, particularly relating to caesarean section. In addition, the study found that the recruitment process, mental well-being and the long-term impact of surrogacy on the surrogate women requires further exploration.110
Sheela Saravanan. Saravanan explored the potential exploitation of surrogate women in a clinic in Western India in 2009-10. The study was highly relevant because there was a lack of empirical research in this area.
The methodology adopted involved ‘gathering information and perceptions using semi-structured interviews, discussions, participant observation and explaining the phenomena from the perspectives of the research participants’.111 Saravanan interviewed 13 surrogate women, 4 intended parents and 2 doctors. A semi- structured questionnaire was used to interview the women. Interviews were recorded, translated and transcribed. The name of the clinic, its location, and the names of the participants were de-identified. Topics covered included ‘socio-economic background, motivation and experiences of rules, living in the surrogate home, bonding, financial dealings, relinquishment and post-relinquishment’.112 Statements and non-verbal gestures were recorded. Analysis consisted of:
transcription … bracketing and phenomenological reduction, listening to the tape and reading the transcription repeatedly to provide the context of smaller units of meaning for deriving emerging themes and delineating units of meaning relevant to the research question. These were then clustered into themes of emotions and
109 Ibid 235. 110 Ibid 233. 111 Saravanan, above n 92, 3. 112 Ibid. 212
experiences, such as knowledge, trust, coercion, fear, feelings of mistrust and dependency.113
Written consent was obtained from the principal medical practitioner from the clinic, as well as the research participants using translated consent forms. There was no formal process of ethical screening at the University of Heidelberg, Germany which employed the researchers; however, the study was screened by the Karl Jaspers Centre in Heidelberg.114
The surrogate women were at different stages of their surrogacy journey. Seven were undergoing treatment or currently pregnant, three were post-delivery but had not yet relinquished the baby, and three had completed their obligations and were at their respective homes. Of the three surrogate women who had not yet officially handed the baby over, one was still residing at the hospital awaiting the arrival of the intended parents, one was staying with the intended parents at their hotel and assisting with the care of the babies, and one was providing milk using a breast pump at the request of the intended parents.115
Malene Tanderup, Sunita Reddy, Tulsi Patel and Birgitte Bruun Neilsen. Tanderup conducted research on surrogacy in fertility clinics and agencies in Delhi between December 2011 and December 2012. Autonomy, informed consent and decision-making in the areas of embryo transfer, foetal reduction and mode of delivery were explored.116 A mixed methods study which employed observations, an interview guide which combined structured and open-ended questions and semi- structured interviews was adopted. Tanderup’s team employed numerical and grounded theory-orientated analyses.117 Thirty-five clinics and hospitals, and 10 agencies were identified through snowballing and internet searches. However, due to difficulties in securing appointments, the number of interviews was limited.
113 Ibid, 4. 114 The Karl Jaspers Centre for Advanced Transcultural Studies is the central institution for the Cluster of Excellence at the University of Heidelberg which is part of an excellence initiative by the German State and Federal governments http://www.asia-europe.uni-heidelberg.de/en/about-us.html. 115 Saravanan, above n 92, 4. 116 Tanderup et al, ‘Reproductive Ethics in Commercial Surrogacy: Decision Making in IVF Clinics in New Delhi, India’, above n 92. 117 Tanderup et al, ‘Informed Consent in Medial Decision-Making in Commercial Gestational Surrogacy: A Mixed Methods Study in New Delhi, India’, above n 92, 470. 213
The study involved interviews with 20 doctors in 18 fertility clinics, 5 recruiting agents from 4 agencies, and 14 surrogate mothers. Four doctors were interviewed twice. Oral consent was obtained and the Declaration of Helsinki118 was followed. Participants were given pseudonyms and 11 interviews were recorded with permission. The remaining interviews were transcribed.
The study found that surrogate women were inadequately informed and most clinical decisions were made by medical staff. Intended parents were indirectly involved. None of the surrogate mothers could explain the risks associated with embryo transfer or foetal reduction; nor were they aware of how many embryos were transferred.
Limitations to the research include the lack of freedom of speech of participants due to a fear of consequences. Also, some information might have been lost in translation. The study noted that it was difficult to meet with the surrogate mothers and commissioning parents. In 11 out of 14 cases an agent or lawyer was present at the interview.119
Sharmila Rudrappa. Rudrappa’s research was carried out in an infertility clinic in Bangalore, India called Creative Options Trust for Women (COTW). In 2009, Rudrappa conducted participant observation in the clinic for two months, then, ‘in 2011 she interviewed 70 surrogate mothers, 31 egg donors, and 25 garment workers’.120 There is limited information provided about the study’s methodology. Rudrappa’s interest lay in the experiences of the participants in the commercial surrogacy process and the impact it had on their lives. She covered a broad range of topics and gained information about the women’s home life, why they engaged in commercial surrogacy, and how they felt about the experience of confinement, medical procedures, relinquishing the child, and their relationship with the intended parents.
Some findings made by Rudrappa differed from the other studies in this thesis. For example, she found that the agency did not recruit poverty-stricken women because
118 The Declaration of Helsinki is a statement of ethical principles for medical research involving humans that was developed by the World Medical Association https://www.wma.net/policies- post/wma-declaration-of-helsinki-ethical-principles-for-medical-research-involving-human-subjects/. 119 Tanderup et al, ‘Reproductive Ethics in Commercial Surrogacy: Decision Making in IVF Clinics in New Delhi, India’, above n 92, 8. 120 Rudrappa, above n 92, 4. 214
women with impoverished bodies, indicated by compromised health and malnourishment, did not meet the clinic’s requirements for an ‘ideal reproductive worker’.121
Kalindi Vora. In 2008, Vora carried out research into the potential risks associated with the social and economic inequalities and the meaning surrogate women attribute to their relationship with the intended parents and whether that relationship is real, potential or imagined.122 Vora’s research draws on interviews and observations conducted at a surrogacy clinic in northern India. The exact location is not provided. Some of the participants in Vora’s study found that the surrogate women worked toward a connection to the intended parents that could offer them long-term benefit, although there was little evidence that this was realised. Vora also found evidence of longing, on the part of the surrogate women, for an on-going connection with the child. Vora’s study does not provide details of the methodology undertaken except to note that she drew on examples obtained from interviews and observations.
Diksha Munjal-Shankar. The aim of this study was ‘to understand and explore the legal and bioethical challenges in ensuring a fair environment for surrogate mothers involved in surrogacy arrangements’.123 The researcher notes that it was difficult to obtain access to potential subjects. Snowball sampling was engaged to ensure that only those surrogate women who spoke Hindi (rather than the local language of Gujarati) were selected for in-depth interviews. This appears to be because the researcher did not speak the local language. The researcher noted that this significantly reduced the number of potential interviewees. Eight surrogate women were interviewed in the surrogacy hostels. The research advised that informed consent was obtained ‘because the study was explained to the participants in detail’.124 While the findings are not clear, they are as follows:
• Most women kept their surrogacy arrangements a secret from their relatives for fear of stigmatisation • All women except one expressed unhappiness at the hostel food
121 Ibid 32. 122 Vora, above n 92, 266. 123 Munjal-Shankar, above n 92, 380. 124 Ibid 384. 215
• The clinic did not encourage intended parents to keep in touch with the surrogate mother.
Centre for Social Research. The Centre for Social Research (CSR) is a non-profit organisation. Its mission statement refers to being a ‘leader in the Indian women’s movement … an esteemed research institute and a lobbyist, advocate and advisor to government institutions’ which ‘works towards gender justice’.125 It aims to ‘empower the women and girls of India, guarantee their rights and increase understanding of social issues from a gender perspective’.126
The CSR conducted two studies that specifically relate to commercial surrogacy, with the same aims in each study. They arose as a consequence of the rapid growth of the surrogacy industry in India and a lack of research about the impact of surrogacy on the parties involved. One study covered the cities of Delhi and Mumbai (‘the Delhi study’) and the other study covered the regions of Anand, Surat and Jamnagar (‘the Anand study’). Each study interviewed 100 surrogate women and 50 commissioning parents. The studies cover the same topics and address the same issues; however, their findings differ. For ease of reference, these studies will be referred to as ‘the Delhi study’ and ‘the Anand study’ when referred to separately.
The objectives of the studies are clearly set out and are concerned with ensuring the protection and rights of those involved in commercial surrogacy arrangements in India. The methodology adopted was ‘exploratory research of situational analysis on the basis of a survey’.127 Structured questionnaires were developed made up of 75% closed and 25% open-ended questions. The questionnaires were field tested then modified accordingly.
Interview schedules were provided to the participants. In addition, there were focus groups involving the surrogate mothers. The study outlined why the participants were drawn from the selected regions of India but did not set out how the participants were recruited. There was also no indication of ethical approval or explanation being provided to the participants.
125 Centre for Social Research, Homepage http://www.csrindia.org/. 126 Ibid. 127 Centre for Social Research, Surrogate Motherhood - Ethical or Commercial (Delhi and Mumbai), above n 3, 14; Centre for Social Research, Surrogate Motherhood - Ethical or Commercial (Anand, Surat and Jamnagar), above n 3, 10. 216
The findings from the study were clearly set out in two documents: one relates to Delhi and Mumbai, and the other to Anand, Surat and Jamnagar. The research findings are extensive and include demographic information about the surrogate women including age, religion, marital status, education, employment, income, family structure, children, previous surrogacies and housing. Findings relating to the surrogacy decision itself included influencing factors, understanding of the surrogacy contract and financial compensation. Finally, issues surrounding the pregnancy, such as contact with intended parents, place of stay during the surrogate’s pregnancy, and emotional responses to the surrogacy experience were also clearly reported. Although there may be a potential for the research to lack objectivity, the rigorous methodology makes this research is valuable and highly relevant.
Sama Resource Group for Women and Health. Sama is a resource group concerned about women’s health. The research was instigated ‘to gain insights into the lives of those at the heart of (surrogacy) issues in order to make visible and to better understand their perspectives, subjective experiences and lives. The study scrutinizes the existing practices in the selected research regions of Delhi and Punjab.’128
The aim of the study was to ‘document and analyse the experiences of surrogates, situating them within current debates in feminist theory’.129 This involved the examination of surrogacy processes to determine whether there is a need for legal regulation. This multi-sited qualitative study contained four research questions:
• How do surrogates perceive surrogacy? How do they look at their motivations and the implications of such arrangements? • How is the use of the body in surrogacy being imagined and contested? What does this represent? • How has medical practice evolved in the context of surrogacy? What protocols, guidelines and standards are being followed insofar as the surrogate is concerned?
128 Sama Resource Group for Women and Health, above n 4, 9-10. 129 Ibid 9. 217
• In this multilayered and growing industry, what accounts for the vulnerability of the surrogate who is otherwise central to the surrogacy arrangement? 130
The process of recruitment is clearly set out, including the manner of selection of participants. However, it is acknowledged in the study that access to surrogacy providers (and therefore participants) was severely restricted. An advisory committee was established to meet with the researchers to discuss ethical challenges and concerns, and to assist with the research methodology and design. The committee also provided a forum for updates and feedback in the course of the study.131
Research tools included an interview guide, consent form, and permission letter, all of which were prepared in consultation with the advisory committee.132 Information about the purpose, intent, procedure and importance of the study was provided to the participants in a language they could understand (Hindi or Punjabi). Interview guides included open-ended questions and checklists but were kept flexible so that interviewers could make adaptions according to the duration and nature of the interview.
A total of 12 surrogate women were interviewed (6 in Delhi and 6 in Punjab). Two agents (one each in Delhi and Punjab), five doctors (two in Delhi and three in Punjab) and one commissioning parent in Punjab were also interviewed. Doctors and agents expressed a lack of willingness to participate, which meant surrogate women were difficult to locate. However, in all but two cases, researchers were able to talk to the women at some point without physician supervision. The quality of the interviews varied, but in-depth repeat interviews were held with four surrogate women.
The study profiles the participants in terms of class, caste, religion, marital status, age, income and work history, motivation and recruitment measures, medical practices, relinquishment of the child, remuneration, public perceptions and stigma.133 Although there is potential for the research to lack objectivity, the
130 Ibid. 131 Ibid 10. 132 Ibid 11. 133 Ibid 13. 218
rigorous methodology and critical examination of research data by an advisory committee makes this research valuable and highly relevant.
Appendix 1 outlines details of the studies undertaken by the researchers.
Strengths and limitations of the body of empirical research. The studies varied in their strengths and weaknesses in terms of value to this thesis. That is to be expected, as the studies had different research questions, and their ability to respond to the research questions in this thesis varied accordingly. The studies focused on different areas, although there was some overlap. Tanderup specifically focused on core medical conditions, whereas Pande, Saravanan and Karindikar et al were concerned with non-medical aspects of consent, such as coercion and lack of acceptable alternatives. In particular, Pande and Saravanan reported on the experiences of surrogate women, whereas Karandikar explored the motivations for and role of the family and community in surrogacy. Pande, Saravanan and Karandikar all touched on issues of vulnerability. Both the CSR and the Sama report reported on a broad range of issues including the motivations and experiences of Indian surrogate women.
The studies also differed in the nature of the information provided. Pande, Saravanan, Karandikar, Tanderup and Rudrappa provided strong anecdotal responses from the study participants, with Saravanan, Karandikar, and Tanderup also providing some statistical data about participant characteristics and strategies adopted. The Sama report focused in anecdotal responses, but also provided some statistical information. The information provided by the CSR was mainly statistical. One of the strengths of the CSR study was that it had the largest sample size of 200 participants.
The studies also varied in their Critical Appraisal Skills Programme (CASP) Qualitative Research Checklist ratings, with Sama gaining the highest rating. The research by Rudrappa, Vora and Munjal-Shankar received poor CASP ratings.
See Appendix 2 for detail of the CASP rigour of data analysis. The general strengths and weaknesses of the empirical studies that inform this thesis as indicated by its seven research questions are depicted in Appendix 3. 219
C Variations in Studies and Conclusions The experiences of each surrogate woman are varied, and influenced by the region in which she lived, the clinic she attended, and her individual experiences. An overall definitive conclusion on all aspects of exploitation that apply to all Indian surrogate women or even those identified in the studies cannot be drawn. Therefore, the conclusions of this thesis will be tabled along a spectrum divided into three categories – those with a high likelihood of occurring, those which are more likely than not to occur, and those which occur infrequently. As noted in the introductory section of this chapter, the experiences of the surrogate women in the high likelihood bracket are strongly supported by the qualitative evidence and regarded as particularaly salient. In the more likely than not category, the women’s experiences are well supported by the evidence and moderately salient. The infrequent occurrences only gained some support from the qualitative evidence and are regarded as minimally salient in the context of this thesis. It is acknowledged that the findings are based on the data contained in qualitative research studies and therefore apply only to those women who participated in the studies and not Indian surrogate women generally. In addition, the nature of the research questions of the particular study may limit the responses that are relevant to this thesis.
This chapter draws upon research emanating from the nine studies. Doctrinal analysis of the research is undertaken to determine whether those aspects recognised in the literature as key concepts present in an exploitative transaction are exposed by the research and, if so, the impact this has on surrogate women in India. The three key concepts of exploitation are: taking advantage of a vulnerability, defective consent, and an unfair distribution of profits. Within the context of consent, there are three sub-concepts of competence, sufficient information, and voluntariness. Each of the nine empirical studies will be thematically analysed against the backdrop of the key concepts and sub-concepts to ascertain whether the empirical research reveals evidence of the particular key concept or sub-concept in the lived experiences of Indian surrogate women. This will illuminate an understanding of whether these women are exploited by the commercial surrogacy transactions in which they engage.
The studies vary in their strengths and weaknesses (see Appendix 3). Those that have strength in methodology and rigor of data collection might contain limited 220
relevant information to one or more of the key concepts. To accommodate this, the strength and relevance of the empirical studies will be explained at the beginning of the analysis of each key concept.
D Taking Advantage of a Vulnerability The first key principle identified as being necessarily present for conduct to be exploitative is the ‘taking advantage of a vulnerability’. Vulnerability was described in chapter 4 as being at risk of harm and/or having a decreased capacity to protect oneself from harm as exemplified by circumstances which place a person in a significantly weaker bargaining position to other parties. The following section explores the demographic environment in which Indian surrogate women are posited. Each of the nine empirical studies is explored separately with a focus on demographic features of the surrogate women, and the factors that influence surrogacy brokers and intended parents. The reports with the strongest evidentiary value in this context are those conducted by the CSR, Sama, Pande, Karandikar and Saravanan, as evidence is provided about the age, marital state, living conditions, income and employment of the surrogate women and other family members, as well as benefits that the women intend to gain as a result the commercial surrogacy experience. In addition, details about the decisions made by surrogacy brokers and intended parents in relation to commercial surrogacy are revealed. Rudrappa’s information is more general, but interesting because it contradicts in part, some of the findings in the other studies.
The reports that constitute the grey literature are most relevant in this context because a large number of participants were interviewed and clear demographic findings obtained in terms of allocating a percentage of participant responses to the particular question asked. The reports also scored well on the CASP Empirical Research Checklist. Reference is also made to the studies by Tanderup, Vora and Munjal-Shankar, although the material provided by these researchers is less rigorous in this particular context.
The empirical research reveals there is evidence that some Indian surrogate women are situationally vulnerable due to their economic and domestic circumstances, and pathogenically vulnerable due to conditions created by the surrogacy clinics such as 221
back ended payments and a requirement that the women sign away any maternal rights to the child.
Centre for Social Research (CSR) Demographic. Studies undertaken by the Centre for Social Research (CSR) described surrogate women as married, from middle-class backgrounds, and in need of money. The women were uneducated, with few options for work other than casual work, and lived in slum areas or in inadequate housing. The majority of women were between the age of 26 and 35, identified as Hindu, and had prior employment. However, some statistics varied significantly among the different regions. For example, in Delhi, 42% of the participants identified as Muslim, whereas this figure was only 5% in Anand and 8.6% in Surat.
The majority of participants lived in rented accommodation. The Delhi study reports they were ‘often from slum clusters of metropolitan cities where rent is cheaper’.134 While some of those who owned their own homes lived in kutcha houses, the majority lived in pucca or semi-pucca houses.135 Earning capacity prior to surrogacy varied significantly depending on the region of residence. In Anand, Surat and Jamnagar, the majority of participants had a monthly income of between Rs1000 and Rs2000 ($18-$36).136 In Surat, 25.7% of participants had a monthly income of above Rs3000 ($54) whereas only 3% earned this amount in Anand. The explanation for this was that Surat is a textile business centre located in close proximity to Mumbai. In comparison, the monthly income above Rs3000 constituted 50% of participants in Delhi and 68% in Mumba, with only 16% and 14% respectively earning between Rs1000 and Rs2000 per month.137 The studies noted that all the women in the
134 Centre for Social Research, Surrogate Motherhood- Ethical or Commercial (Delhi and Mumbai), above n 3, 50. 135 Pucca houses are made with material of a high quality, whereas kutcha houses are made from low quality materials such as mud and thatch. Government of India, Open Government Data (ODG) Platform, India https://data.gov.in/keywords/kutcha-house 136 References to dollar values in this chapter and chapters 6 and 7 relate to US Dollars. Conversions from rupees to US dollars are based on a conversion rate of 0.018. Where the author of the research has specified the US dollar value, the figures provided by the author are used. Reference is to US dollars because that is the currency used in most of the studies informing this thesis. 137 Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Delhi and Mumbai’, above n 3, 46; Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Anand, Surat and Jamnagar), above n 3, 33. 222
Anand, Surat and Jamnagar study and most in Delhi and Mumbai belonged to a ‘male headed household.’138
Table 5.4 Family income of surrogate women in CSR report
Income based Monthly Yearly Surrogacy Earnings on conversion income income (times usual rate of 0.018 (majority) (majority) income)
Anand $18–$36 $220–$440 $5,400–$7,000 12–32 Surat $18–$36 $220–$440 $3,700–$5,400 8–25 Jamnagar $18–$36 $220–$440 $3,600 8–16 Delhi $54 or more $650 $3,800–$7,100 6–11 Mumbai $54 or more $650 $3,800–$7100 6–11
All of the participants in both studies had children of their own. According to the Delhi study, this was a prerequisite of the clinics/physicians and hospitals as it demonstrated fertility.139 Becoming a surrogate mother was prompted by a desire to pay off debt, buy a house, fund higher education or build businesses. Poverty, unemployment, education of children and approach by agents were the most common reasons cited by the participants for engaging in commercial surrogacy.140
Surrogate brokers. All respondents in Jamnagar and 91% in Surat had been approached by the surrogacy clinics or agencies. One observation by the researchers in the Delhi study was:
that surrogate mothers were very articulately chosen by the agents as they themselves lived in particular urban clusters for some time and had observed who are the needy and poorest of poor of the section of the community with proven fertility (more than one child) record (sic) and then target the woman by gaining her confidence as a sympathiser.141
However, the Anand study noted:
138 Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Delhi and Mumbai), above n 3, 49, 54; Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Anand, Surat and Jamnagar), above n 3, 34, 36. 139 Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Delhi and Mumbai), above n 3, 50. 140 Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Delhi and Mumbai), above n 3, 56; Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Anand, Surat and Jamnagar), above n 3, 38. 141 Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Delhi and Mumbai), above n 3, 57. 223
In most of the cases the surrogate mothers have taken the decision on their own, but with the support from their respective husbands.142
Nonetheless the researchers in this study found that the women were pressured emotionally to undertake surrogacy because it would afford them a house or business.
Intended parents. Intended parents reported that the reason they chose India as their surrogacy destination was because surrogacy was illegal in their own jurisdiction and India was cheaper than other options.143
Payment to surrogate women. The manner of payment for surrogacy varied among districts. For example, all the participants in Jamnagar received their payment after relinquishing the child; whereas 95% in Anand and 93% in both Delhi and Mumbai said the compensation was paid in instalments throughout the duration of the contract. In both studies the remuneration was determined by the clinic medical staff.144
Sama Resource Group for Women and Health (Sama) Demographic. All surrogates interviewed by the Sama Resource Group for Women and Health (Sama) were aged between 21 and 38, married, and had previously conceived children. Like the CSR Report, having children was necessary as it indicated the participant was fertile, and the husband’s consent was also a mandatory requirement. The majority of the women identified as Hindu.145
Most women (9 out of 12) had been employed prior to engaging in commercial surrogacy in casual, irregular or seasonal work including work in the garment industry, cooking, domestic and office work. 146
The monthly income earned by the participants varied significantly from Rs4000 ($72) to Rs15000 ($270). Most of the surrogate women resided in the region where
142 Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Delhi and Mumbai), above n 3, 39. 143 Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Delhi and Mumbai), above n 3, 109, 110; Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Anand, Surat and Jamnagar), above n 3, 66. 144 Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Delhi and Mumbai), above n 3, 71; Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Anand, Surat and Jamnagar), above n 3, 47. 145 Sama Resource Group for Women, above n 4, 33-39. 146 Ibid, 40-41. 224
the surrogacy arrangements were taking place. At the time of the surrogacy arrangements, 5 of the 12 surrogate women were from Delhi. One woman resided in Indore but moved to Delhi for the duration of the surrogacy. Of the five who resided in Delhi, two were living in a surrogacy hostel for the duration of the pregnancy. One had moved to Delhi for the purpose of engaging in surrogacy and was renting accommodation for that period. All six of the women who engaged in surrogacy in Punjab resided in that region and stayed in their homes for the duration of the surrogacy period.147
Payment and the ability to earn good money over a short period of time were reported as the main reasons for engaging in commercial surrogacy. Many of the women had immediate financial needs which they could not overcome on their current income. Debts incurred due to death, accidents, loan repayments and securing the future for their children were reported as being common motivations among the participants:148
Who will help us out? We have put our children in an English-medium school. The most important thing that came to my mind is that we have to educate our children. So it is just that. I have this dream since I couldn’t study and we are so miserable. My children should be able to go forward … That’s why I came here…
The greatest hurdle the women had to overcome was to understand that they would not be required to engage in sexual relations and convincing their husbands that this was the case.149
Table 5.5 Family income of surrogate women in Sama report
Monthly Yearly Surrogacy Earnings Income income150 (times usual income) SP1 Rs4,000 –4,500 Rs3,00,000 5–6 $72–$80 $865 –$960 $5,400 SP2 Rs6,000 –7,000 Rs2,00,000 2–3 $110–$130 $1320 - $1560 $3,600 SP3 Rs4,500–5,000 Rs2,00,000 3–4 $80–$90 $960–$1,080 $3,600 SP4 Rs3,000 Rs1,75,000 4–5 $55 $660 $3,150 SP5 Rs7,500 Rs2,00,000 2–3
147 Ibid, 36-38. 148 Ibid, 51. 149 Ibid, 51-54. 150 Value is rounded to the nearest five dollars. 225
$135 $1,620 $3,600 SP6 Rs15,000 Did not discuss. Not N/A $270 $3,240 doing for money SD1 Rs10,500 Rs3,70,000 2–3 $190 $2,280 $6,660 SD2 Rs9,000–10,000 Rs3,50,000 2–3 $160 - $180 $1,920–$2,160 $6,300 SD3 Rs10,000 Rs3,70,000 3 $180 $2,160 $6,660 SD4 N/A Did not know N/A SD5 Rs4,500 $960 Did not know. N/A $80 Husband might know SD6 Rs12,000 $2,580 Rs110,000 0.7 $215 $1,980
Surrogate brokers. The majority of participants were recruited by surrogacy brokers. The study notes a trend that has developed whereby the surrogacy brokers pay a commission to surrogate women who put the agent in touch with other women who act as surrogates. It was also noted that it can be quite difficult for surrogate women to engage in commercial surrogacy without the assistance of an agent because doctors refer inquiries to the agent rather than dealing with it themselves.151
Payment to surrogate women. The majority of women were paid in instalments with between 60% and 90.5% of payments received after delivery. Generally, the first instalment was made after the embryo was transferred, the second followed confirmation of the pregnancy, and the final instalment was paid after the child’s birth. However, there were wide variations in the terms of payment, although in most cases payments made prior to the child being born was a small percentage of the total amount.152
Pande Demographic. All of the 52 women interviewed by Pande were married with at least 1 child, and all except 2 came from neighbouring villages.153 Fourteen of the surrogate women were ‘housewives’. Others worked in the home, schools, farms or shops. One woman was an informal tailor for her neighbours. The husbands of these
151 Sama Resource Group for Women, above n 4, 58. Nine out of 12 women were recruited by surrogacy brokers. 152 Sama Resource Group for Women, above n 4, 108. 153 Pande, ‘Global Reproductive Inequalities, Neo-Eugenics and Commercial Surrogacy in India’, above n 92, 247. 226
women generally held informal jobs, were on contract work, or unemployed.154 The median family income was Rs2500 per month (which Pande estimated was approximately $50).155 Pande stated that the money earned through surrogacy equated to approximately 4 to 7 years income. The age of the women ranged from 20 to 45, with an average age of 28.
In 2009, Pande noted 34 families of the 42 surrogate women interviewed at the time lived below or around the poverty line. However, by 2016 and after interviewing 10 more women, Pande noted that 36 of her interviewees reported a family income that put them around the poverty line.156 All the women were motivated by financial compensation which they hoped would relieve their poverty. The women also appealed to ‘higher loyalties’157 referring to surrogacy as a noble act or a family obligation.
Pande’s research revealed the motivation for surrogacy ranged from feeding and clothing children to rebuilding houses and payment of mortgage fees.158 Other strong motivators included using the money earned to pay for their children’s education or dowry for their daughter’s marriage.159
154 Pande, ‘“It May Be Her Eggs But It’s My Blood”: Surrogates and Everyday Forms of Kinship in India’, above n 92, 379; Pande, ‘Not an “Angel”, Not a “Whore”: Surrogates as “Dirty” Workers in India’, above n 92, 141; Pande, above n 92, ‘“At Least I am not Sleeping with Anyone”: Resisting the Stigma of Commercial Surrogacy in India’, above n 92, 292; Pande, ‘Commercial Surrogacy in India: Manufacturing a Perfect Mother-Worker’, above n 92, 969; Amrita Pande, ‘Transnational Commercial Surrogacy in India; Gifts for Global Sisters’ (2011) 23(5) Reproductive Biomedicine Online 618. 155 This figure is taken from Pande’s most recent research in the context of the timeframe of this thesis. Pande, ‘Global Reproductive Inequalities, Neo-Eugenics and Commercial Surrogacy in India’, above n 92, 247. Pande noted this figure at US$60.00 in her earlier work. Pande, ‘“At Least I Am Not Sleeping with Anyone”: Resisting the Stigma of Commercial Surrogacy in India’, above n 92, 297. Calculated at the 2016 exchange rate, this figure is US$37. Similarly, her earlier work quoted surrogacy as earning 4–7 times the family income whereas her 2016 article quotes this figure at 5 times. I have used the earlier quote because it provides a wider range of possibility as the figure will vary depending upon the individual surrogate mother. 156 Pande, ‘Not an “Angel”, Not a “Whore”: Surrogates as “Dirty” Workers in India’, above n 92, 150. The official poverty line is INR 447 which is approximately US$10 per person per month for rural areas and INR579 (approximately US$13) in the urban sector. Amrita Pande, ‘Surrogacy, Stratification and the State in India’ in Susan Lundin, Charlotte Krolokke, Michael N Petersen and Elmi Muller (eds), Global Bodies in Grey Zones: Health, Hope, Biotechnology (SUN MeDIA Stellenbosch under SUN PRESS, 2016) 91, 93. The family income as at 2016 was $36.85. 157 Pande, ‘“At Least I Am Not Sleeping with Anyone”: Resisting the Stigma of Commercial Surrogacy in India’, above n 92, 302. 158 Pande, ‘Not an “Angel”, Not a “Whore”: Surrogates as “Dirty” Workers in India’, above n 92, 159, 160, 161. 159 Pande, ‘Commercial Surrogacy in India: Manufacturing a perfect Mother-Worker’, above n 92, 988. 227
Pande quotes statements by women that suggest they are in a desperate situation:
In our village we don’t have a hut to live in or crops in our farm… When we heard of this surrogacy business we didn’t have any clothes to wear after the rains – just one pair that used to get wet – and our house had fallen down.160
Other women want to give their children a better life than their own:
I am doing this basically for my daughters. Both will be old enough to be sent to school next year. I want them to be educated, maybe become teachers or air hostesses? I don’t want them to grow up and be like me – illiterate and desperate.161
Surrogate brokers. More than half the women interviewed by Pande were recruited by surrogate brokers.162 Comments made by one broker suggest she targeted young women in need of money:
It is easy for me to find the right women because I used to be a midwife. I know which women have very young children, which ones are in desperate need of money.163
The brokers in Pande’s research were paid a fee by the surrogate women.164 Comments made by two women suggest they felt the brokers had taken advantage of their vulnerability. While there was no suggestion of threats or force, the brokers manipulated the women by playing on their susceptibilities. One woman with a cognitively impaired daughter was asked how she was going to ‘marry her off’. Surrogacy was seen as a means to achieve this. Another woman came in to the clinic for an abortion because she could not afford another child and was advised about surrogacy as a means of earning money.165
Karandikar. Demographic. All of the 15 women interviewed by Karandikar were married with at least one child and ranged in age from 21 to 30 years of age. The women were from low socio-economic backgrounds with little or no formal education. Family income
160 Pande, ‘Not an “Angel”, Not a “Whore”: Surrogates as “Dirty” Workers in India’, above n 92, 160. 161 Ibid 161. 162 Pande, ‘Commercial Surrogacy in India: Manufacturing a Perfect Mother-Worker’, above n 92, 975. The exact number of women recruited by the brokers was not mentioned. 163 Ibid 975. 164 Ibid 975-6. In Pande’s study, one broker procured nine of the surrogate women interviewed. Her charge was approximately Rs10000 (US$200). This was charged to the surrogate mother for services such as provision of transport to and from the clinic and other appointments. 165 Ibid. 228
of the women was not mentioned in this study, although it was noted that the primary motivation for the women to engage in surrogacy arrangements was financial compensation. Helping the infertile couple or helping the community was not an inducement. The women also described serving as a surrogate for a couple unable to have a child as a noble act, although Karandikar describes this view as moral justification for a decision which has been made for financial reasons.166 Karandikar comments that there was a pressing financial need.167 She notes that out of the 15 participants, 10 had husbands who were unemployed. The women engaged in surrogacy to support their families.168
Surrogate brokers. Karandikar reported 7 out of 15 surrogate women were recruited by surrogacy brokers. The brokers take advantage of the vulnerabilities of the surrogate women:
I am a widow and I live with my mother-in-law and son. I was not able to make ends meet and lived in extreme poverty – house was leaking all the time. There was a woman from the clinic who came to my house and talked to me about surrogacy. I really needed money and she made it sound too easy. She had done it three times. So only for the money I decided to listen to the woman and come to the clinic. 169
Karandikar noted that previous surrogate women are given a finder’s fee of up to Rs5000 ($80)170 for each surrogate recruited.171 Whilst not specifically stated, it is implied that the surrogacy clinics were the source of remuneration for these brokers.172
Saravanan Demographic. Thirteen surrogate mothers,173 4 intended parents and 2 medical practitioners were included in Saravanan’s study. The women were employed as domestic helpers and agricultural labourers; one was a clerk, one a nurse, one worked on the family farm, and three were housewives. All of the women were
166 Karandikar et al, above n 92, 232. 167 Karandikar et al, above n 92, 227. 168 Ibid. 169 Ibid. 170 Today, this figure is closer to US$75; however, Karandikar quoted the figure of $100. It is not clear but appears from the study that the clinic provided payment to the surrogate brokers. 171 Karandikar et al, above n 92, 232. 172 Ibid 234. 173 Saravanan, above n 92. Saravanan refers to a clinic in Western India but does not detail its location. 229
facing economic difficulties and chose to engage in surrogacy to help alleviate their financial stress. Two women had an ill family member to care for, one a child with severe disabilities, one a husband who needed immediate medical treatment, and another had a husband with an addiction who spent the household income on his habit.174 Four of the 13 surrogate women wanted to save money for their children’s education, two planned to rebuild their katcha house and one wanted to buy a house.175
The family income of the surrogate women varied between Rs3000 to 6000 per month ($54 to $110). When engaged in surrogacy the women earned Rs 250,000 (US$4500) which, according to Saravanan’s calculations, is up to 20 times the family income. 176
Saravanan noted elements of desperation:
This process is so distressing that I would not have done it even if someone paid me 10 times the remuneration, had I been well-off, but I am so desperate (for money) that I would do it even if I was paid just one third the amount. 177
Surrogate brokers. Saravanan comments that the surrogate brokers received a commission of Rs10,000 upon relinquishment of the child. This amounts to approximately $150.
Intended parents. Of four intended parents who were interviewed, comments made by two suggest there were advantages available in India that were not available in other countries. The comments suggest these intended parents chose to undertake surrogacy in India so they could take advantage of the conditions presented:
One of the things that made me come to this clinic was the way the payment scheme works. Only a nominal payment is made to the surrogate mother, but you don’t actually pay until the very end … it’s a good incentive for her to keep the baby and not do much work so she doesn’t miscarry. She doesn’t really get compensated until she hands over the baby 178
174 Ibid 5-6. 175 Ibid 6. 176 Ibid. 177 Ibid. 178 Ibid 5. 230
Although it is legal in my country, the process is very complex and much more expensive than in India. The law expects surrogate mothers in India to sign over all rights to the baby even before the surrogacy begins, which is a big relief. 179
This is a poor country; everything can be done by paying money and people’s mouths can be shut.180
However, a further comment made by one of the intended parents suggests that the standards and protocols vary between clinics:
Another clinic I contacted expected me to fill up a huge form and then keep a time table and establish a protocol, even before I came to India. But this doctor didn’t want to know anything about me until I arrived here, met her and trusted her. 181
Saravanan indicated that one other intended parent ‘thought they could manipulate surrogacy in India, although it was illegal in their country of origin’.182 In contrast, the fourth intended parents selected the clinic because they felt the surrogate women were monitored throughout the pregnancy period.183
Payment to surrogate women. Payment was back-loaded, in that the participants received over 70% of their payment upon relinquishing the baby.184
Tanderup Demographic. In this study, 14 surrogate women from fertility clinics in Delhi were interviewed between December 2011 and December 2012. Eleven of the women were interviewed in the presence of other surrogate women, agents or lawyers. Twelve women were married and two widowed. The women were between 21 and 30 years of age, although seven women did not know their age. They all had children ranging in number between one and six. Most had one or two children. However, one surrogate had five children and another six.
Out of the 14 surrogate women interviewed in the study by Tanderup, 9 did not divulge their monthly family income. It is unclear whether that was because they were unsure or unwilling to provide the information. Two families earned between
179 Ibid. 180 Ibid. 181 Ibid. 182 Ibid. 183 Ibid. 184 Saravanan, above n 92, 11. 231
Rs4,800 ($85) to Rs9,600 ($170) per month. Three families had a significantly higher monthly family income of Rs9,600 to Rs1,3000 ($200).185 Five surrogate women earned money from sewing, domestic work and checking goods in a company, five were unemployed, and four did not respond. Nine husbands were auto-rickshaw drivers, worked in an office, or sold fish. Two women were widowed and three men did not answer the question.186 There is no information about fees paid to individual surrogate women in this study.
Rudrappa Demographic. Interviews in this study were carried out in Bangalore, India which is situated further south than the sites of the other studies. The surrogate women were from solid working-class backgrounds, lived in permanent housing, and had access to potable water. The majority of the women worked in garment factories. When they became ‘burnt out’ from the garment industry, they undertook surrogacy.187 They had children of their own,188 although most of the women had since been sterilised, which did not prevent them carrying an embryo to term. The clinic screened the women ‘emotionally’ but, according to Rudrappa, they willingly participated in the surrogacy process although the ability to earn money was their primary motivation. Rudrappa described the women as desperate rather than destitute.189 They earned approximately $4000 as a commercial surrogate.190 There was some evidence of domestic violence in the home.191
Surrogate brokers. The clinic utilised women who had formerly been egg donors and surrogates to recruit other surrogate women and paid a nominal fee for each successful recruitment.
Vora Demographic. Interviews were carried out by Vora in Northern India, exploring the conditions that allowed for transnational commercial surrogacy. It is unclear how many women were interviewed. Although the women held low paying menial jobs, such as cleaning houses, some had altruistic motivations which were often expressed
185 Tanderup et al, ‘Informed Consent in Medical Decision-Making in Commercial Gestational Surrogacy: A Mixed Methods Study in New Delhi, India’, above n 92, 468. 186 Ibid. 187 Rudrappa, above n 92, 92. 188 Ibid 42. 189 Ibid 78. 190 Ibid 104. 191 Ibid 32. 232
through religious narratives such as ‘being like a god’ or ‘being able to give a gift … that is usually given only by god’.192 However, when pressed, it appeared that, despite their altruistic language, the women would not undertake surrogacy if it was not economically necessary.
Payment to surrogate women. Vora estimates the surrogate’s income, which she posits at between $6,000 to $7,000 amounts to ‘nine years of their regular family income from their own or their husband’s work’.193 However, the surrogate mother only received her fee upon the successful completion of a pregnancy.194
Munjal-Shankar Demographic. Munjal-Shankar interviewed eight surrogate women in Gujarat in 2014 exploring the social setting and core issues faced by surrogate women. Most women advised that they entered into commercial surrogacy arrangements for financial gain. Education of their children and improved housing were the primary motivations. It was noted that many women admitted ‘they had jumped into surrogacy without understanding the emotional aspects that it entails’.195 The women were required to sign a form stating that they would relinquish custody of the child born as a result of the surrogacy arrangement.
Surrogate brokers. The women were introduced to the clinic by brokers who had previously been engaged as surrogate mothers. The brokers are paid a commission by the clinics for each woman inducted.
Summary of taking advantage of a vulnerability: A spectrum of outcomes/findings. The empirical research reveals that the majority of Indian surrogate women interviewed were 20-35 years old and married with at least one child. The grey literature suggests the majority lived in rented accommodation. Some moved to the particular surrogacy region for the duration of the contract and rented accommodation or stayed in the surrogacy hostels. The Delhi study noted the women were from ‘slum clusters,’ and 50 out of 52 women in the Pande study were from rural households. The other peer-reviewed studies did not specify whether the
192 Vora, above n 92, 273. 193 Ibid, 270. 194 Ibid, 269. 195 Munjal-Shankar, above n 92, 385. 233
women are from urban or rural households, although Karandikar makes reference to women relocating, and subsequently returning to their villages to avoid the stigma of surrogacy, thereby suggesting that at least some of the women live a rural lifestyle.196 Rudrappa indicated the surrogate women she interviewed lived in permanent housing with access to water.197
Unlike commercial surrogate women in the United States who are motivated primarily by altruism in wanting to help a childless couple,198 and the enjoyment of being pregnant and giving pleasure and joy to the commissioning parents,199 all studies revealed the primary motivation for entry into commercial surrogacy was economic need.200 There was evidence the women engaged in commercial surrogacy to provide their family with basic needs including food, clothing, shelter, education and medical care. In addition, the money was put towards paying off existing debt and dowry for their daughters. The women can earn around $3,000-$6,000 through commercial surrogacy; however the studies vary significantly in the estimation of increase in yearly earnings. According to Pande’s study, this figure equates to approximately four to seven years income.201 However, a calculation of the figures obtained from the Sama study were lower, indicating the participants earned approximately two to six times their yearly income. Yet a calculation based on figures provided by the CSR report suggest surrogate women earn anywhere between 6-32 years income. Those women who were employed prior to entering into the surrogacy arrangement were generally engaged in the unskilled labour market. See Appendix 4 for surrogacy costs and earnings.
196 Karandikar et al, above n 92, 229, 230, 233, 234. 197 Rudrappa, above n 92, 32. 198 Vasanti Jadva, Clare Murray and Emma Lycett et al, ‘Surrogacy: The Experiences of Surrogate Mothers’ (2003) 18(10) Human Reproduction 2196, 2199. 199 Blyth, above n 95, 192. 200 Some participants in Vora’s study initially stated they were motivated by altruistic feelings, but further discussion revealed financial need was the catalyst for entry into commercial surrogacy arrangements. Pande interviewed one ‘exceptional’ surrogate woman who had travelled from eastern India. She was more educated and had a higher family income than the other women. Pande, ‘Not an “Angel”, Not a “Whore”: Surrogates as “Dirty” Workers in India’, above n 92, 173. 201 Saravanan quotes this figure as 20 times the family income, and Vora’s quote is 9 times. Pande’s quote of 4-7 years, is similar to figures quoted in the CSR and Sama reports. Clearly the geographical area where the research is carried out will impact greatly on the surrogacy earnings and income ratio. The estimate of 4-7 years income has been selected because it is the most commonly cited figure based on the empirical evidence informing this thesis. That is not to suggest other figures are less accurate, but rather they represent a different research demographic. 234
Those studies which discussed recruitment by surrogacy brokers found that the majority of women were recruited through this channel. Over half of the surrogate women in Pande’s study were engaged by surrogacy brokers and of the three surrogate brokers interviewed by Pande, one admitted to targeting young women, desperate for money. Similarly, around 50% of Karandikar’s subjects were recruited by brokers and one woman stated that she was living in poverty and a broker ‘talked her into surrogacy’. The studies reported that the surrogate brokers received financial remuneration for their services.
Research by CSR found that the low cost of surrogacy in India appealed to the intended parents. There is some evidence that intended parents chose India as their surrogacy destination because of the assurance that the surrogate mother would relinquish the child as she would not receive her full compensation until that occurred (this is discussed further in section IIIF), low costs, and lack of formal protocol. In addition, Saravanan interviewed four intended parent couples and three commented that they had taken advantage of the surrogacy conditions in India, such as the back-end payment structure and lack of the surrogate mothers’ rights to keep the child.
The clinics took advantage of the surrogate women by providing payment schemes that were unreasonable and ensuring the women had no rights to the child. CSR reports that remuneration is determined by the medical staff. Saravanan, CSR and Sama reported evidence of back-ended payments to the surrogate mother, with around 70% of the total remuneration being paid upon relinquishment of the child. This was also supported by Vora’s research which stated that ‘the surrogate mother only receives her fee upon the successful completion of a pregnancy’.202 Munjal- Shankar reported that the surrogate women were required to provide written consent that they would relinquish custodial rights to the child.
Therefore, many women were situationally vulnerable due to their economic and domestic circumstances. They were poor and in need of a solution to their financial difficulties. Some women were in a desperate situation. In addition the women were pathogenically vulnerable due to conditions created by the surrogacy clinics. There
202 Vora, above n 92, 269. 235
is evidence that these conditions allow clinic staff, surrogacy brokers and intended parents to take advantage of these vulnerabilities.
The spectrum of conclusions relating to the taking advantage of the Indian surrogate mother’s vulnerability is highlighted below.
High likelihood
• Surrogate women were married with at least one child • Surrogate women faced significant economic difficulties203 • Surrogate women were motivated by economic need • Surrogate women had low paying, unskilled jobs • Commercial surrogacy provided surrogate women with a greater income than they could earn under their usual circumstances. Although the exact figures vary significantly between the studies as a whole and the individual women, overall there was a substantial increase in income • The earnings from commercial surrogacy were intended to provide basic needs, such as food, clothing, improved housing, medical treatment for their families, and educating their children • Surrogate women were situationally vulnerable due to poor financial and domestic circumstances. More likely than not
• The clinics took advantage of the surrogate women and created conditions that made the women pathogenically vulnerable, such as back-ended payments and lack of protocol in the clinics, and the requirement that women relinquish their maternal rights. • Surrogate women were recruited by paid surrogacy brokers
Infrequent
203 The only caveat to this finding is Rudrappa’s study which describes the women as desperate, not destitute. However, the ability to earn money is still the primary driver to engage in surrogacy. The clinic advised that the surrogate mother’s family should have sufficient funds to be able to support her children during the term of her pregnancy; however, Rudrappa commented that this was not occurring in reality. 236
• Surrogacy brokers targeted the situational vulnerabilities of surrogate women who were particularly susceptible because they were poor and desperate. Some women were targeted because they were trying to support ill or disabled family members • Intended parents took advantage of the pathogenic vulnerabilities of surrogate women as depicted in statements made as to why they chose to undertake commercial surrogacy in India. Examples included: o The low cost and back-ended payment scheme provided intended parents with an assurance that the surrogate mother would not refuse to hand the child over to them. o The intended parents selected clinics with fewer protocols thereby providing them with greater powers of negotiation. o Surrogate women were required to provide written consent that they would relinquish the child. o The surrogate mother had no rights to the child once he or she was born.
E Defect in Consent The second key principle identified as being necessarily present for conduct to be exploitative is a lack of consent. Chapter 4 established that consent requires competence, sufficient information and voluntariness.204 Again, the CSR report is valuable in the broad context of consent because of the large number of participant surrogate women, and information provided in terms of the number of participants who experienced a particular condition in the various regions of Delhi, Mumbai, Anand, Surat and Jamnagar, thereby providing insight into the varied and disparate experiences of surrogate women. The Sama report and the study by Pande also provide useful anecdotal evidence of the experiences of the surrogate women in the context of their understanding of their obligations under the surrogacy arrangement in terms of payment and the medical procedures they are required to undergo. Tanderup’s research is particularly valuable in the context of whether Indian surrogate women are provided with sufficient information in relation to their exposure to core medical procedures and their involvement in the decisions
204 Stephen Wilkinson, ‘Exploitation in International Paid Surrogacy Agreements’ (2016) 33(2) Journal of Applied Philosophy 125, 132. See also I Glenn Cohen, Patients with Passports (Oxford University Press, 2015) 298. 237
surrounding those procedures. Studies by Pande, Saravanan and Karandikar that provide anecdotal evidence surrounding the condition of voluntariness are highly valuable because they contribute to an understanding of the subjective forces that influence women to engage in commercial surrogacy.
The empirical evidence reveals the women receive little explanation about the contracts they sign or the medical procedures they are required to undertake. The women are not involved in decision-making around procedures including but not limited to multiple embryo transfer, risks associated with multiple pregnancies and foetal reduction. There are spiritual, financial and familial pressures surrounding their engagement in the surrogacy process, although some women return for a second or third time.
The conditions of consent – competence, sufficient information and voluntariness – are examined in the following section.
1 Competence Competence can be compromised by the inability to understand due to intellectual challenges or age. The majority of the Indian surrogate women were aged between 20-30, therefore age was not an issue in terms of capacity to consent to either the obligations of the surrogacy arrangement or to the medical treatment involved; nor was there evidence of surrogate mothers typically lacking developmental capacity.
2 Sufficient Information: Literacy and education, general nature of arrangement, and core medical conditions (embryo transfer, foetal reduction, caesarean section) Information can be deficient because the content of the information is incorrect, not adequately explained to the person, or there is insufficient detail in the information provided. This is relevant in the context of surrogate women for two reasons. First, when they enter into the surrogacy agreement it is important they understand their rights and obligations. Second, it is important they understand the procedures and risks they will be required to undertake in the course of their performance of the contract, particularly if there are risks associated with the medical procedures. The obligations and procedures that the surrogate women believe they will be required to undertake must equate to what they are actually required to do. This section analyses the empirical research to inform a determination of whether Indian surrogate women are provided with sufficient information so they are adequately informed about and 238
understand the general nature of the surrogacy arrangements and the core medical conditions they are required to undertake which specifically include embryo transfer, foetal reduction and caesarean section.
Literacy and education levels may impact upon the surrogate woman’s ability to read and comprehend information. Findings which emanate from the empirical research vary with respect to the literacy levels of the women. All of the women in Saravanan’s study could read.205 However, Karandikar found a high level of illiteracy among the women, and Pande found some illiteracy. 206
Analysis of the empirical research will be carried out in the context of the literacy and education levels of Indian surrogate women, their understanding of the surrogacy contract and the obligations conferred upon the women, and whether they were aware of and understood the medical procedures they were required to undertake.
Centre for Social Research Literacy and education. The education levels of the participants in the CSR study varied depending upon the region. Most women were educated to at least primary school level. However, 52% completed secondary school in Mumbai whereas this figure was only 26% in Delhi. In Anand, the majority of women were illiterate (52%) with only 32% having completed primary school.207 Overall, the education levels of the women are considered low.
Surrogacy contract. The surrogate women and the intended parents generally met for the first time at the signing of the contract, which often occurred in the second trimester after the pregnancy had been confirmed and abnormalities eliminated.208 In
205 Saravanan, above n 92, 4. While all the surrogate mothers interviewed by Saravanan could read and write, their education was limited in terms of years spent at school. Five had completed primary school only, six to grade 10, and only two had completed grade 12. None of the women had received tertiary education. 206 Pande, ‘Not an “Angel”, Not a “Whore”: Surrogates as “Dirty” Workers in India’, above n 92, 150. Pande’s study indicates the women’s education ranged from being illiterate to achieving a high school education with the average reaching middle school. One of the women had earned a law degree. Karandikar et al, above n 92, 226. Karandikar reported the women had little to no education. 207 Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Delhi and Mumbai), above n 3, 45; Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Anand, Surat and Jamnagar), above n 3, 31. In Surat and Jamnagar, over half the surrogates received education to primary school level. 208 Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Delhi and Mumbai), above n 3, 52; Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Anand, Surat and Jamnagar), above n 3, 35. 239
the Anand study, 40% of the respondents signed the contract in the second trimester of their pregnancy. This figure was over 85% in the Delhi study. Most women signed a written surrogacy agreement but did not retain a copy.209
Commonly addressed issues in the contract included physiological testing and psychiatric/psychological evaluation and release of results, compensation, and arrangements about relinquishing the child. Most women were unable to answer questions about compensation if they had twins, the baby had an abnormality, or they miscarried. Matters such as the surrogate mother not becoming pregnant, the sex and health of the baby and the number of IVF sessions the women were required to undertake were infrequently addressed or not addressed at all.210
The Anand study reported that the information provided by the hospital did not reflect the actual events. For example, the researchers advised that transportation, food and shelter were provided to the participants and any family members who accompanied them when they attended the hospital. However, there was little evidence of this occurring.211
Core medical conditions
IVF sessions. The surrogate women were required to undergo up to 20–25 IVF sessions according to the Anand study. However, significantly lower numbers were reported in the Delhi study where only 2-3 sessions were required. The report noted that the difference in reporting between the studies could have been due to a lack of understanding by the women about the nature of the procedures, as little explanation was provided to them.212
Termination/foetal reduction. Both the Delhi and Anand studies reported that a decision of whether or not to continue a pregnancy — for example, if an abnormality in the foetus was detected — was rarely made by the surrogate women. The medical
209 Ibid 41; Centre for Social Research, Surrogate Motherhood Ethical or Commercial (Delhi and Mumbai), above n 3, 63. 210 Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Delhi and Mumbai), above n 3, 65-66; Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Anand, Surat and Jamnagar), above n 3, 43-44. 211 Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Anand, Surat and Jamnagar), above n 3, 36. 212 Ibid 44; Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Delhi and Mumbai), above n 3, 67. 240
staff and intended parents were the decision-makers in this context.213 Most of the respondent surrogate women believed the intended parents would take a child with an abnormality, although there are reported incidents of intended parents refusing to do so. Both reports noted that the women could be forced to terminate the pregnancy if requested by the intended parents. It was unclear whether or not they would be paid under these circumstances. The Delhi study reported evidence of pregnancies being terminated by oral medication without the women’s knowledge or payment.214 In contrast, there was one report of intended parents filing a law suit for breach of contract following the termination of a pregnancy.215
Caesarean section. The Delhi study noted that advice provided to the surrogate women about the consequences of caesarean delivery was insufficient.216
Sama Literacy and education. The sample of participants in the Sama study reflected a limited access to education. Out of the 12 surrogate women interviewed, three had received no formal education and one did not provide information. Two women had graduated from school, three reached the year 10 and three only completed to year five.217
Surrogacy contract. Ten out of 12 women had signed written surrogacy contracts; the two who had not signed had pregnancies that were yet to be confirmed. The women were not provided with an opportunity to negotiate the contract terms, nor were they provided with legal advice or counselling. The documents were written in English, which most of the women could not understand.
Of the 10 surrogates that had signed a contract, three advised that the terms of the contract were not explained to them, five that the only information they were told was that they would have to give up the child, and two reported money being
213 Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Delhi and Mumbai), above n 3, 69; Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Anand, Surat and Jamnagar), above n 3, 45-46. 214 Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Delhi and Mumbai), above n 3, 61. 215 Ibid 42; Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Anand, Surat and Jamnagar), above n 3, 29. 216 Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Delhi and Mumbai), above n 3, 50. For example, for those women where delivery by caesarean section had previously been required, further delivery by caesarean section after the completion of the surrogacy arrangement could be compromised, thereby limiting their opportunity to grow their own family. 217 Sama Resource Group for Women, above n 4, 40. 241
mentioned as well as having to relinquish the child. Of the latter two, one could not recall any details, and the other said that money was mentioned insofar as she would only be paid if she relinquished the child. None of the surrogate women were advised about specific payment terms or the amount of compensation.218
The women had little information about the terms of payment, and several felt that the agents took a portion of their remuneration. One woman noted, ‘they [agents] get a lot, and give us very little….’219
Core medical conditions
Testing. The women were required to undergo numerous tests but were rarely informed about them. They could provide little detail about the purpose or number of tests required: 220
They did all these tests of the whole body like some operation. I don’t know since I was unconscious for two-three hours. When they took me to the operation theatre, then I found out. They said nothing will happen; you will be out in five minutes. When I went in, I was given an injection and told nothing about what they were going to do. Even at home I was not informed that something like this will happen. The agent had also not said anything. Suddenly they said the test needed to be done immediately. I only got to know later that it was a big test, scanning from inside. When I became conscious afterwards, then I was in this big room. I had thought it would be something normal, like an injection. They had not told me this.221
The results of the tests were not disclosed to the women, although the study noted that, in some cases, they revealed conditions such as anaemia and tuberculosis. These conditions would not have been exposed if the surrogate mother had not gained access to quality healthcare which would not have occurred outside the surrogacy arrangements.
Multiple embryo transfer and foetal reduction. The study revealed that the women were not advised about the number of embryos being transferred in the fertilisation procedure:
218 Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Delhi and Mumbai), above n 3, 94. 219 Ibid 109. 220 Sama Resource Group for Women, above n 4, 62. 221 Ibid 62. 242
They will not say how many transfers they are doing. Then the result will come and they will tell how many children are there. 222
In addition, there were reports of procedures being carried out on women without their consent:
They had transferred four eggs (embryos) inside me and I was not told about it. One day I got a call asking me to visit the hospital. They told me that one of the children did not have a heartbeat and that one has to be taken out by surgery. I was very scared. I didn’t understand how you could take one out. What if something happens to me? I called my husband, but before he could reach (sic) they had taken me inside for the surgery. That night there was too much pain in my stomach. 223
Of the 12 surrogate women who participated in the study, seven were not informed about the number of embryos transferred, two were informed, one found out because the intended parents told her husband, and two did not provide a response to the question. Of the seven who were not informed, two found out at the time of the scan.
Caesarean section. The study reports that four out of the five women interviewed who had given birth delivered by caesarean section. In two cases, the birth was delayed so the intended parents could be present. Two women reported that they were not informed that they would undergo a caesarean delivery, one did not answer the question, and one woman, who was having twins, was informed about the mode of delivery. Eight participants were still pregnant, of which two had been advised that they would deliver by caesarean section.224
Pande Literacy and education. Pande’s study indicates the women’s education ranged from being illiterate to achieving a high school education, with the average reaching middle school. One of the women had earned a law degree, although, according to Pande, that was exceptional. This woman’s family had a higher than average income and she did not reside in Gujarat. She travelled from eastern India for the sole purpose of being a surrogate mother.225 All but one of the remaining women were
222 Ibid 66. 223 Ibid. 224 Ibid 68. One of the participants did not respond to the question, so that five reported as not being informed that the delivery would be by caesarean section. 225 Pande, ‘Not an “Angel”, Not a “Whore”: Surrogates as “Dirty” Workers in India’, above n 92, 150. 243
from nearby villages.226 Pande’s study also noted that the contracts the women were required to sign were in English,227 which is not their native tongue.
Surrogacy contract. It is asserted in Pande’s study that the surrogate women signed a consent form outlining their rights and obligations under the agreement. The form was written in English and the women were unable to understand the content. Some of the clauses were translated for the women, such as the requirement to relinquish the baby, their lack of parental rights, indemnity of the doctor and intended parents should the woman die as a result of the surrogacy arrangement, and the method of payment.228
Core medical conditions
Decision-making. Pande’s research revealed that the surrogate women had little to no say in the treatment procedures. Consequently, they received limited information about their treatment:
We are not really told much about the medicines and injections. In the beginning I used to get ten-ten (sic) injections that hurt so much, along with the pills required to make me strong for the pregnancy. We … are not as educated as you are, you know. I won’t really understand much else! And I trust the Doctor Madam so I won’t ask.229
In addition, Pande found that the clinics prepare two surrogates and keep one ‘in reserve’:
For each couple that comes in to hire a surrogate, at least two surrogates are “prepared” medically and mentally for the procedure. In case one surrogate does not “match” the adoptive mother biologically, the reserve surrogate is brought in.230
Foetal Reduction. There is also evidence of surrogate women being subjected to foetal reduction with little choice:
Doctor Madam told us that the babies wouldn’t get enough space to move around and grow, so we should get the surgery. But both Nandini didi (the genetic mother)
226 Ibid 150. 227 Ibid147; Jeffrey Kirby, ‘Transnational Gestational Surrogacy: Does it have to be Exploitative?’ (2015) 14(5) The American Journal of Bioethics 24, 29. 228 Pande, ‘Not an “Angel”, Not a “Whore”: Surrogates as “Dirty” Workers in India’, above n 92, 147. 229 Ibid 148. 230 Ibid 163. 244
and I wanted to keep all three babies. I told Doctor Madam that I’ll keep one and didi can keep two…231
Caesarean section. Most of the women were required to deliver by caesarean section. Two women out of the 52 interviewed had natural births. Pande asserts the reasons for delivery by caesarean section include accommodation of the intended parents’ travel timetable and a belief by the medical professionals that it will reduce surrogate mother’s level of attachment to the child:
I came to the clinic the first time around two years ago. Since then I have been just in and out of this clinic. I don’t ever want anyone else to go through this… It’s very painful – the medicines, the injections and now this scissor operation. It’s not like there can’t be normal deliveries in this process but they (doctor and intended couple) don’t want to take any risk. The child is most important, not our bodies. But I cannot complain. Nature gave me a healthy body. I decided to let others cut it apart.232
Pande does not assert that all of her respondents objected to having a caesarean. Furthermore, some of the women counterbalance their negative feelings towards a caesarean with positive comments about the rest and reprieve from their normal chores they receive in the surrogacy hostels. 233
Karandikar Literacy and education. Karandikar found high rate of illiteracy amongst her participants and reported that the majority had little or no education.234 While she did not specify where the surrogate women originated, four mentioned their ‘village’ in interviews.
Core medical conditions
Caesarean section. All of the participants in Karandikar’s study were required to undergo a caesarean section, although the study is silent about whether the women were informed about the process.235
231 Pande, ‘Global Reproductive Inequalities, Neo-Eugenics and Commercial Surrogacy in India’, above n 92, 8. 232 Pande, ‘Surrogacy, Stratification and the State of India’, above n 156, 95. 233 Ibid 96-7. 234 Karandikar et al, above n 92, 226. 235 Ibid 233-4. 245
Saravanan Literacy and education. While all the surrogate women interviewed by Saravanan could read and write, their education was limited in terms of years spent at school. Five had completed primary school only (38.5%), six to year 10 (46%) and two had completed year 12 (15.5%). None of the women had received tertiary education.236 No mention was made in the study of where the women were from.
Surrogacy contract. Saravanan’s study also revealed that none of the women received a copy of their contract. 237
Core medical conditions
Decision-making. Saravanan’s research revealed evidence of decision-making being removed from the women. She found the main controlling group in the clinic to be the medical practitioners whose influence transcends from that of a medical nature to include financial matters and the recruitment of surrogates. Surrogate women had little decision-making power in the medical treatment and procedures they undertake. All deliveries were by caesarean section.238
Tanderup Literacy and education. Participants in this study varied in the levels of education from none at all to 10 years of schooling.239 One woman was illiterate, five had completed to between years one to five at school, four had completed years six to ten, and the schooling level of four women was unknown.
Tanderup’s research specifically examined autonomy, consent and the decision- making opportunities provided to surrogate women, and concluded consent obtained from the women was not well-informed with little effort made to ensure they understood what was to occur.240 The following explanations for this were proffered by medical staff. First, it was challenging to fully inform the women due to the complexity of the procedures being undertaken and the limited education and ability of the women to speak English. Second, the medical terminology was too complex.
236 Saravanan, above n 92, 6. 237 Ibid. 238 Ibid. 239 Tanderup et al, ‘Reproduction Ethics in Commercial Surrogacy: Decision-Making in IVF Clinics in New Delhi, India’, above n 92, 3. 240 Tanderup et al, ‘Informed Consent in Medical Decision-Making in Commercial Gestational Surrogacy: A Mixed Methods Study in New Delhi, India’, above n 92, 468. 246
Finally, the busy schedules of the healthcare staff left them with little time to deal with these issues. In addition, the doctors were seen as authoritative, self-assured figures. The surrogate women were not comfortable asking questions.241
Core medical conditions
Embryo transfer. Twelve out of 18 clinics reported that the doctors make the decision about the number of embryos transferred. Only one clinic acknowledged the wishes of both the surrogate women and the intended parents and four involved the intended parents but not the surrogate women. Therefore, in 16 out of 17 cases (one clinic is unaccounted for) the surrogate women were not involved in decisions about the number of embryos being transferred. Three clinics reported transferring a maximum of two embryos at one time; seven clinics reported a maximum of three embryos; while eight clinics reported transfers of four to seven embryos.242
When asked about whether the surrogate women were provided with sufficient information, one doctor responded as follows:
No, we never ask them and they are not even informed how many are going to be transferred. They are illiterate, uneducated girls … We do tell them that they are going to get embryos transferred into their womb and they are very happy when they are having twins because they are going to get more money.243
Foetal reduction. Three out of 18 clinics did not involve the surrogate women or the intended parents in the decision-making process surrounding foetal reduction.244 The decision was made by the doctors alone. In 10 clinics, the intended parents were included in the decision-making process and in three clinics the surrogate women were involved, usually when having triplets. 245
I think usually it is between the commissioning parents and us, but sometimes the surrogates are also apprehensive about the three pregnancies, and then it is of course her call; at the end of the day, she’s the mother who is carrying the babies.
241 Ibid 470. 242 Tanderup et al, ‘Reproductive Ethics in Commercial Surrogacy: Decision-Making in IVF Clinics in New Delhi, India’, above n 92, 5. 243 Tanderup et al, ‘Informed Consent in Medical Decision-Making in Commercial Gestational Surrogacy: A Mixed methods Study in New Delhi, India’, above n 92, 469. 244 Ibid. 245 Tanderup et al, ‘Reproductive Ethics in Commercial Surrogacy: Decision-Making in IVF Clinics in New Delhi, India’, above n 92, 7. 247
However, other statements made by doctors indicate the surrogate women have little decision-making power:
We do fetal (sic) reduction down to twins. It doesn’t look good for the clinic if we have too many multiple pregnancies. And there are more complications with triplets. The commissioning parents can influence the decision. If too many are reduced, it ends up in abortion and the commissioning parents should know that. If they want triplets, we counsel them as the surrogate mother should be able to carry triplets. 246
The SM (sic) knows that more than one embryo can be implanted. She doesn’t have anything to say in the decision on fetal (sic) reduction – of course not – as she is not a parent. 247
One clinic admitted to assigning more than one surrogate women to an intended parent or intended parent couple. If too many embryos implanted successfully, the she was required to undergo an abortion:
Thirty to 40 percent of our CP’s have two surrogates at a time … but the risk with two surrogates is that the chances of getting multiple children is high. Recently we had one couple who had four children; two children from each surrogate. But if the CPs don’t want to have more than one or two children, they might only let one surrogate continue the pregnancy and the other has to go for an abortion.248
Tanderup asserts the medical professionals are influenced by the desires of the intended parents. The doctors are conscious that IVF is self-funded in India so seek to achieve a high success rate by transferring multiple embryos. They do not want the intended parents to engage another clinic who is prepared to offer the opportunity of multiple embryo transfer and foetal reduction services if they do not.249
Caesarean section. In 11 out of the 18 clinics, the ‘decision on the mode of delivery was reportedly made solely by the doctors, based on medical indications’.250 Tanderup also reported evidence of clinics matching intended parents who requested a caesarean section with those surrogate women who were prepared to undergo the
246 Tanderup et al, ‘Informed Consent in Medical Decision-Making in Commercial Gestational Surrogacy: A Mixed methods Study in New Delhi, India’, above n 92, 469. 247 Tanderup et al, ‘Reproductive Ethics in Commercial Surrogacy: Decision-Making in IVF Clinics in New Delhi, India’, above n 92, 7. 248 Ibid 6. 249 Ibid. 250 Ibid 8. 248
procedure. Two clinics were reported as ‘only carrying out C-sections and not providing the surrogate mothers the opportunity to have a vaginal delivery, even if she is a multipara’. One clinic reported that the intended parents could decide the mode of delivery and would pay extra for a caesarean section.251 It is further noted by Tanderup that ‘before signing the contract the surrogate is counselled that a C- section will be done, and in this way it is assumed that she has consented to the decision effected later on’.252
The research suggests some of the women expressed a desire for a vaginal delivery.253 The number of women who expressed this view is not provided; however, it was noted by Tanderup that none of the women in the study ‘had been included in the actual decision on mode of delivery’. 254
Decision-making. None of the surrogate women could explain ‘how many embryos had been transferred and the possible complications associated with multiple pregnancies and foetal reduction’.255 Tanderup’s research revealed that the women did not feel they were in a position to question the decisions made by doctors, nor did they feel the doctors listened to their concerns. One woman expressed concern at carrying twins. She was unaware how many embryos were transferred initially, but at the time of the interview knew she was carrying twins. She advised that the doctor would not consider a foetal reduction despite her request. Instead, she was paid an additional sum of $802.256
From the doctor’s perspective, it was assumed the women would not understand the complexities of information relating to medical treatment. The intended parents had more involvement in decision-making, but the greatest appropriation of decision- making power lay with the medical staff. Surrogate women received little explanation. Tanderup concluded that treatment procedures involving the implantation of multiple embryos, foetal reduction, and mode of delivery were decided without the proper consent of the women.
251 Ibid. 252 Ibid. 253 Ibid 8. 254 Ibid 9. 255 Tanderup et al, ‘Informed Consent in Medical Decision-Making in Commercial Gestational Surrogacy: A Mixed Methods Study in New Delhi, India’, above n 92, 468. 256 Ibid 472. 249
There were also practices carried out that prioritise the interests of the intended parents over the surrogate women. For example, Tanderup reported evidence of the preparation of more than one surrogate mother, followed by the selection of the woman with the healthiest endometrium for transfer. Hormonal treatment would be withdrawn from the remaining women until their next monthly cycle.257 In addition, multiple embryo transfer involving more than one surrogate for one intended parent couple was undertaken to increase the likelihood of a successful pregnancy. This could result in forced abortion if too many embryos successfully developed. 258
Rudrappa Surrogacy contract. Rudrappa noted that the women were counselled about having to relinquish the child born as a result of the commercial surrogacy arrangement in return for money.259
Core medical conditions. Some women in Rudrappa’s study spoke of the pain and discomfort of hormonal injections but remained silent about foetal reduction despite the procedure being described as ‘common practice’.260 It is therefore difficult to assess the level of knowledge the women had about these procedures. All of the women interviewed in the study were scheduled to deliver at 36 to 38 weeks by caesarean section.261
Vora Core medical conditions. According to Vora’s research, information provided to the women was often in overly simplified, non-technical terms. For example, one surrogate advised:
She (the doctor) explained to me that my womb is like an extra room in a house that I don’t need, and can be rented out. The baby stays there for nine months, so it has a place to grow but it is not your (sic) baby.262
In contrast to Tanderup, Vora’s research reveals that another clinic in Northern India had a policy of only permitting single or twin pregnancies for the protection of the
257 Tanderup et al, ‘Reproductive Ethics in Commercial Surrogacy: Decision-Making in IVF Clinics in New Delhi, India’, above n 92, 8. 258 Ibid. 259 Rudrappa, above n 92, 119. 260 Ibid 114. 261 Ibid 115. 262 Vora, ‘Indian Transnational Surrogacy and the Commodification of Vital Energy’, above n 92, 271. 250
mother and remaining foetus(es), indicating high levels of variation in clinical policies and reinforcing the difficulty in ‘typifying’ the characteristics of surrogate women and surrogacy procedures.263
Munjal-Shankar Surrogacy contract. Munjal-Shankar reported that clinics persuaded ‘uninformed, poor and often illiterate surrogate mothers that they are performing an altruistic act’.264 The women interviewed revealed that they were not advised by the surrogate brokers that they would have to spend the duration of their pregnancy in accommodation provided by the clinic. The women had not realised how much time they were required to forego with their families.
Core medical conditions. The medical staff at the surrogacy clinic did not seek permission from the surrogate women to carry out foetal reduction, nor were they advised about the potential risks. The women ‘were simply told that the procedure must be carried out for the well-being of the foetus’.265
3 Voluntariness This section analyses empirical research to determine whether there is compromise in the Indian surrogate mother’s decision to enter into the surrogacy arrangement, as evidenced by the conditions outlined in section IID of chapter 4; that is: coercion, lack of acceptable alternatives or offers that are too good to be true. Research suggests that the impact of family on the surrogate mother varies. For example, some women are encouraged or even coerced by their husbands to engage in surrogacy, while others have to persuade their husband into acceptance.266 The factors influencing the surrogate women to enter into the surrogacy arrangement and repeat the process again will impact upon whether their decision to engage in surrogacy is voluntary. For this reason, repeat surrogacies are also addressed in this section.
263 Kalindi Vora, ‘Potential, Risk and Return in Transnational Indian Gestational Surrogacy’ (2013) 54(7) Current Anthropology 97, 98. 264 Munjal-Shankar, above n 92, 385. 265 Ibid. 266 Approval from the women’s husband is required by the surrogacy clinics and this is embedded in the National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India, 3.5.6. Pande, ‘“At Least I Am Not Sleeping with Anyone”: Resisting the Stigma of Commercial Surrogacy in India’, above n 92, 296; Karandikar et al, above n 92, 232. 251
Centre for Social Research Coercion. The Delhi study reports that although the surrogate women state that it was their decision to enter into the surrogacy arrangement, there was evidence that the husband ‘emotionally pressurised (sic) the wife to undergo surrogacy in order to buy a house … or to set up a garage, or to start a business, or even to pay bribe to come out clean in a criminal case or simply for family maintenance’.267
Lack of acceptable alternatives and offers too good to be true. The majority of women reported poverty as being the driver motivating them to enter into the surrogacy arrangement. In the district of Surat, 91% specified unemployment as the driver. 268
Repeat surrogacies. In Delhi and Mumbai, 80% and 86% of participants experienced surrogacy for the first time. 269 This figure was also high in the Anand study (76.6% in Anand, 91.4% in Surat and 100% in Jamnagar). The Delhi study suggests that this was an indication that the participants were not satisfied with their surrogacy experience and therefore did not return a second time. The report explains that those who returned did so ‘due to a continuing economic compulsion on the one hand and financial lure from the husband’s side on the other…’.270 The report described the experience of one surrogate mother who returned to surrogacy for a second time because of the generosity of the intended couple on the first occasion, as rare. This woman was bearing a child for the same couple.
Sama Lack of acceptable alternatives and offers too good to be true. Women talked of everyday hardships in making ends meet:
It is money that gets you to do everything. One has compulsions at home. Everyone is sitting with a lot of tension at home. No one does it because they enjoy (shauk nahi hota) bearing someone else’s child. When there are compulsions, this is what god gets you to do. No woman bears a child and gives it away out of interest.271
267 Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Delhi and Mumbai), above n 3, 58. 268 Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Anand, Surat and Jamnagar), above n 3, 38. 269 Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Delhi and Mumbai), above n 3, 50. 270 Ibid 51. 271 Sama Resource Group for Women, above n 4, 51. 252
According to one surrogate mother, ‘it was poverty and desperation to earn money that led women to become surrogates, egg donors and even sex workers’.272 The women used the term majboori to explain why they find it necessary to engage in commercial surrogacy. There are alternative forms of employment, but surrogacy offers greater remuneration over a shorter period of time and the women are free from accusation surrounding stealing which can arise if they engage in domestic work.273 This suggests the women make choices after weighing the benefits and burdens of the different work opportunities. ‘Surrogates assessed what they perceived as “risks” in their lives and chose to enter surrogacy, weighing their familial responsibilities and financial compulsions against these risks to their health and lives’.274
As noted by one surrogate mother, commercial surrogacy is not a choice a person of privilege needs to consider. However, it becomes imperative in order to ‘achieve a respectable and equal status in society’. 275
Repeat surrogacies. Two of the women interviewed had engaged in surrogacy previously.276 One was considering a third surrogacy because she wanted to separate from her violent husband and she felt surrogacy was the only way she could support her children. However, two women reported that they would not enter into another surrogacy arrangement.277 Reasons provided for not wanting to engage in surrogacy again were concerns about stigma, failure by the intended parents to fulfil promises, and the detrimental effects surrogacy had on the health of the women and their ability to work.278
Pande Coercion. Pande described one woman who became a surrogate because her husband needed the money desperately to pay the mortgage for his shop.279 However, there was also evidence of a husband who had to be convinced to allow his
272 Ibid. 273 Ibid 56. 274 Ibid 88. 275 Ibid 128. 276 Ibid 33. 277 Ibid 88. 278 Ibid 87, 88. 279 Pande, ‘“At Least I Am Not Sleeping with Anyone”: Resisting the Stigma of Commercial Surrogacy in India’, above n 92, 299. 253
wife to enter into a surrogacy arrangement,280 and others who ‘perceive surrogacy as a familial obligation and duty’.281 On the evidence available in Pande’s studies, a conclusion about whether the surrogate mother is coerced cannot be determined.
Lack of acceptable alternatives and offers too good to be true. Majboori is a term emanating from empirical research carried out by Pande as responses given by surrogate women surrounding their motivation for engaging in surrogacy. The term suggests the women have little alternative.
This is not work, this is majboori (a compulsion). Where we are now, it can’t possibly get any worse…The work is not ethical – it’s just something we have to do to survive… if your family is starving what will you do with respect? Prestige won’t fill an empty stomach.282
In describing his wife’s motivation to be a surrogate mother, a husband states:
This is her prayer to God and ultimately she will get his blessings and her dreams will be fulfilled. Like saints pray under austere conditions, she is living here in the clinic, getting all those injections, going through all this pain. But she will get the fruit of her labour.283
While it is difficult to reconcile spiritual motivation of majboori with Western notions of consent and choice, the narratives of the surrogate women depict notions of desperation and limited available options. Narrations aligning majboori with compulsion and a necessity to live suggest there are few alternatives for some of these women.
Pande’s exploration of surrogates’ narratives in 2009 first noted the downplaying of choice exhibited by Indian surrogates. For many, entry into the surrogacy arrangement was viewed beyond their control, as their primary motivation was to alleviate severe financial hardship.284 However, Pande suggests the downplaying of choice may be due to the stigma that attaches to surrogacy. The women assert they have no option but to engage in commercial surrogacy to discourage a belief that
280 Ibid 301. 281 Ibid 310. 282 Pande, ‘Not an “Angel”, Not a “Whore”: Surrogates as “Dirty” Workers in India’, above n 92, 161. 283 Ibid 162. 284 Ibid. 254
they are engaging in sexualised work by choice. Nonetheless, on the evidence, the narratives of the surrogate women indicate they are in desperate need of money.
Saravanan Repeat surrogacies. Saravanan visited all of the women after they had relinquished the child (children) and all reported they were going to engage in surrogacy a second time.285 One participant had been a surrogate on a prior occasion.286
There was evidence that some husbands coerced their wives into further surrogacy arrangements:
…all the SMs were visited again post-relinquishment at their homes. It was evident that they were all planning for another surrogacy. After further discussions, it became clear that some of the men had left their jobs and were coercing the women to participate in surrogacy again.287
Karandikar Coercion. Approval of the surrogate mother’s husband was a mandatory requirement of the clinic the subject of Karandikar’s study.288 There is some evidence of possible coercion by the husband. Four out of the 13 husbands of participants involved in the study (31%) insisted their wife become a surrogate mother (two women out of the 15 surveyed were widowed).289
My husband is the one that motivated me to come here. He came and talked to the doctor and then made sure I became a surrogate. Months will pass with no money from him. So he was very interested in a way out of our situation. He even tells me to become an egg donor from time to time.290
However, of the remaining women, 46% had to either persuade their husbands or their husbands were supportive of the arrangement. Three women did not answer the question and two were widowed (23%).
The family dynamic of surrogate women is varied. The use of words such as ‘coercing’ and ‘insisted’ suggest some of the women have been subject to coercive
285 Saravanan, above n 92, 12. 286 Ibid 6. 287 Ibid. 288 Karandikar et al, above n 92, 232. 289 Ibid 229. 290 Ibid. 255
activity. However, further detail of the familial dynamic is required before a conclusion about coercion can be drawn.
Lack of acceptable alternatives and offers too good to be true. Indian women in Karandikar’s study engaged in surrogacy for financial gain with little motivation to help infertile couples or provide a service to society or the community. These women felt they had ‘no other choice but to become surrogates’.291 Five women advised that ‘there was no other choice’ because their husbands did not provide adequately for the family:
With all my children and a husband with no work – I had to do it all myself and it is very difficult. There was no other choice in the matter. 292
My husband and I had lots of financial problems. We had to vacate our rental home. My husband offered to sell kidney (sic) and I told him that instead of doing that I can become a surrogate. We had no other choice. 293
Repeat surrogacies. All study participants had experienced a prior surrogacy pregnancy with seven women having experienced two prior surrogacies and one woman having experienced three. One woman advised:
I could not get the house even though I wanted to after the first time because there was always some family things. My father-in-law had cancer. Husband had loans. So all money went there. So it became a natural decision even though the second time I had C-section and didn’t feel up to doing it a third time. 294
Tanderup Repeat surrogacies. Tanderup reported two of the participants in her study had engaged in surrogacy on one prior occasion.295
4 Summary of consent: A spectrum of outcomes/findings Competence
291 Ibid. 292 Ibid. 293 Ibid. 294 Ibid 227, 228. 295 Tanderup et al, ‘Reproductive Ethics in Commercial Surrogacy: Decision-Making in IVF Clinics in New Delhi, India’, above n 92. 256
There is no evidence that surrogate women are taken from groups which lack decision-making capacity in terms of not having reached the age of majority or being cognitively impaired.
Sufficient Information
Literacy and education. In a society where the majority of people are literate,296 the studies indicate that surrogate women are taken from a diverse range of education levels. No clear finding can be drawn from the evidence about the literacy of Indian surrogate women except to conclude that surrogate women are drawn from both literate and illiterate groups and, overall, their education levels are relatively low – from late primary to early middle school levels.
Surrogacy contract. The majority of surrogate women signed a written contract. The CSR data indicates that the women did not sign the surrogacy agreement until they were into their second trimester when the pregnancy had been confirmed and abnormalities eliminated. By this stage, the women had little negotiating power. This was supported in the Sama report which also noted that the women were not provided with legal advice or counselling. The content of the contracts included clauses about physiological testing and psychiatric and psychological evaluation, compensation, and relinquishment of the child. Pande, CSR and Sama found that the surrogate women were not advised and/or did not understand the content of the contracts they signed, some of which were written in English. The women were not fully informed about their rights and obligations, although they understood that relinquishment of the child was necessary. In addition, the CSR study and Saravanan found the women were not provided with copies of their signed contracts.
Furthermore, the CSR study revealed that the contracts were inadequate in content because they did not address adverse events such miscarriage, abnormalities, or compensation for twins. There was evidence of false information being provided to the women surrounding matters such as transport and accommodation for members of their family.
Medical consent forms. According to Pande, the medical consent forms that the women were required to sign were written in English, which they were unable to
296 Office of the Registrar General and Minister for Home Affairs and Census Commissioner, India, Census of India 2011
understand. However, some clauses were translated for them. These related to the requirement to relinquish the child, the surrogate mother’s lack of parental rights, the indemnity of the medical professional and intended parents in the case of the surrogate mother’s death, and payment methods.
Core medical conditions
Embryo transfer and foetal reduction. The research reveals that the women were not provided with information about embryo transfer procedures or foetal reduction.
All of the surrogate women interviewed by Tanderup failed to explain ‘how many embryos had been transferred or the possible complications in multiple pregnancies and fetal (sic) reduction’,297 thereby indicating there was a lack of information provided to the women about the risks associated with these medical procedures. This was also supported in the CSR and Sama studies. The Sama study noted that the women were required to undergo a number of tests and were not provided with information about the nature of the tests or the results.
Only one clinic in Tanderup’s study reported that the surrogate women were involved in decisions surrounding embryo transfer. Sixteen out of 17 (one was not accounted for) did not involve the women in these procedures, although five clinics involved the intended parents. However, eight clinics interviewed reported transferring a maximum of four to seven embryos at one time; seven transferred a maximum of three embryos; and three clinics transferred two. Therefore, 83% of clinics interviewed transferred a maximum of more than two embryos at one time and only 5.5% consulted the surrogate woman about the transfer, leaving 94.5% of the sample women not involved in discussions surrounding these procedures. However, the number of embryos transferred varied throughout the different clinics. For example, Vora’s research was carried out in a clinic in Northern India that had a policy of transferring only one or two embryos.
Pande, Tanderup and CSR reported poor medical practices such as preparing more than one surrogate and preparing a number of surrogate women for the one intended parent(s), and only continuing with the ‘healthiest’ pregnancy.
297 Tanderup et al, ‘Informed Consent in Medical Decision-making in Commercial Gestational Surrogacy: A Mixed Methods Study in New Delhi, India’, above n 92, 468. 258
No conclusion can be drawn from Tanderup’s research regarding the involvement of surrogate women in discussions around foetal reduction except to conclude that the women were not advised about the risks. Three out of 18 clinics did not involve the surrogate mother in decisions surrounding foetal reduction and three reported allowing the women to be involved, although this does not accord with the views of the surrogate women. No information was provided in relation to the remaining 12 clinics. Comments from doctors are both positive and negative in terms of the surrogate mother’s right to be involved in the decision-making process surrounding multiple pregnancies and foetal reduction. The Sama and CSR studies describe incidents of a foetal reduction and abortion taking place without the consent of the surrogate woman.
Pande and Munjal-Shankar provided anecdotal evidence of surrogate women having little involvement in decision-making surrounding the medical procedures they are required to undergo, such as preparation for embryo transfer and foetal reduction. However, specific numbers were not detailed. Similarly, Saravanan found that generally decision-making was removed from the surrogate women to the medical practitioners.
Mode of delivery. Nearly all women interviewed by Pande delivered by caesarean section and two out of 50 had natural births. Pande did not provide conclusive evidence about whether the women were involved in the decision to deliver in this manner. Saravanan and Karandikar found all respondents experienced delivery by caesarean section but did not elaborate other than to note that the women had little decision-making power in the procedures they were required to undertake. Similarly, Rudrappa’s findings indicate the women delivered by caesarean although their knowledge of the procedure is unclear. Tanderup’s findings revealed that 11 out of 18 clinics (61%) left the decision about mode of delivery entirely to the doctors based on medical indication. However, two of the clinics (11%) only carry out caesarean sections on surrogate women. In that case, the women have no choice in the matter, having been advised prior to signing their surrogacy contract that a caesarean section will be performed. Tanderup concluded that none of the women were included in the decision about mode of delivery. It was further concluded that the women did not feel they could question the decision of the doctors and that the doctors were not interested in the opinions of the surrogate women. In addition, the 259
Sama study reports that two women were not informed they would undergo a caesarean section. However, the sample size was small as only five women had given birth at the time of the interview, four of which were by caesarean section.
It can be concluded that most of the women delivered by caesarean section. While the women appeared to have little choice in the mode of delivery, there is insufficient evidence to conclude that the procedure was performed without their consent (with the exception of two participants in the Sama study), although it can be concluded that some felt unable to refuse.
Reasons for lack of information. Tanderup found the main reasons doctors did not explain medical procedures to the surrogate women were that they felt the women would not understand the medical terminology and they did not have time to explain the complex medical procedures involved.
Voluntariness
Coercion. The research is equivocal about whether Indian surrogate are coerced into surrogacy arrangements. It appears some women are coerced by their husbands, others are supported, and others have to persuade their husbands to allow them to enter into the surrogacy arrangements.
Lack of acceptable alternatives or offers too good to be true. It is clear from the evidence that poverty is the dominant factor driving women to engage in commercial surrogacy. Most women feel they have little choice but to engage in surrogacy, yet the circumstances surrounding their choices vary. For example, Sama reports that the women choose surrogacy as a less risky means of earning money than the other available options. Pande proposes that the women understate their choice to engage in commercial surrogacy because of the stigma it attracts. Their narratives focus on poverty, desperation and compulsion. Majboori is provided as a response about the motivation of surrogate women in both the Sama and Pande studies. The narratives of the women depict notions of desperation and suggest majboori is a spiritual compulsion which they were obliged to follow because they had been provided with an opportunity to alleviate poverty. Participants in Karandikar’s study indicated they felt they had no choice but to engage in surrogacy. Generally, the studies reveal that 260
the surrogate women’s choice is limited by a number of factors, including spiritual motivation and a need to alleviate financial hardship.
There is evidence of women engaging in surrogacy on more than one occasion. All 15 surrogate women in Karandikar’s study had been surrogate mothers previously. One (out of 13) women in Saravanan’s study and two (out of 14) in the study by Tanderup engaged in surrogacy on a prior occasion. However, all the women in Saravanan’s study who were interviewed post-surrogacy advised they were going to engage in surrogacy again. Seven women in Karandikar’s study had two prior surrogacies, and one had three. One woman in this report indicated that she would have engaged in surrogacy on a third occasion to meet her financial needs but did not feel up to it. There is some evidence in Saravanan’s study of husbands leaving their jobs and coercing their wives to engage in surrogacy again. The Sama report found that two of the 12 women interviewed had engaged in surrogacy previously. One was trying to separate from her husband and required the money to support her children. This report also provided detail of why the women did not wish to return to surrogacy. The reasons centred around stigma, failure by the intended parents to fulfil promises, and a deterioration in health. Most of the women who participated in the CSR and Delhi studies were engaging in surrogacy for the first time. The Delhi report suggests that this is an indication that the participants were not satisfied with their surrogacy experience and therefore chose not to return a second time. The report explains that those who returned did so ‘due to a continuing economic compulsion on the one hand and financial lure from the husband’s side on the other…’.298 It is difficult to ascertain whether the women weighed the benefits and detriments which surrogacy affords them and determined that surrogacy provided a clear overall benefit, a sufficient benefit despite the detriments, or whether they are returning because there are no acceptable alternative forms of employment for them. While there is some evidence of husbands coercing their wives into surrogacy, these are infrequent examples and cannot be interpreted as a typical experience.
Overall, the literacy and education levels of surrogate women are low but it must be acknowledged that the findings vary and some women completed their school education. The majority of women were poor and their motivation to become
298 Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Delhi and Mumbai), above n 3 51. 261
involved in surrogacy was to improve their financial circumstances and the living conditions of their families. Women were not involved in discussions about medical procedures such as embryo transfer and foetal reduction and knew little about the associated risks.
The spectrum of conclusions relating to a defect in the consent of Indian surrogate women is highlighted below. The relevant domain of consent to which the conclusion relates, being competence, sufficient information or voluntariness, is noted in brackets.
High likelihood
• Indian surrogate women were unable to explain procedures such as multiple embryo transfer, risks associated with multiple pregnancy, and foetal reduction. It follows that there is a lack of information provided to Indian surrogate women about the procedures and risks they are required to undertake (sufficient information) • Indian surrogate women were not involved in discussions surrounding embryo transfer (sufficient information) • Indian surrogate women were poor and engaged in commercial surrogacy for financial reasons (voluntariness)
More likely than not Generally, the women reported as having little choice about whether to enter into the surrogacy arrangements. There was evidence of a spiritual compulsion over which they had little control. They faced family and financial pressures, and stigma due to an assumption that commercial surrogacy is a form of sex-work. There was also evidence that some women had carefully weighed the risks and benefits of engaging in a commercial surrogacy arrangement, rather than other employment such as domestic work.
Most women did not receive a copy of their surrogacy contract, nor could they understand the content. Many women had multiple embryos transferred, whereas others were limited to a transfer of two embryos. It is difficult to draw firm 262
conclusions in relation to the number of embryo transfers except to note there were vast differences in numbers, in some cases influenced by the desires of the intended parents. However, in nearly all cases, the women were not advised of the number prior to the transfer taking place. Most women delivered by caesarean section. While the women were advised of this, they were given little choice about the mode of delivery. Generally, the decision about the mode of delivery was made by the doctors.
Those findings that are more likely than not to occur are listed below: • Surrogate women had little choice about whether to engage in surrogacy arrangements due to spiritual and financial pressure. (voluntariness) • The women did not receive a copy of their surrogacy contract, could not understand the content because it was written in English or they could not read, or did not sign the surrogacy contract until the second trimester and/or once the pregnancy had been confirmed (sufficient information) • Over 80% of clinics interviewed in one study transferred multiple embryos (between three and seven) although it is not clear how often this occurred. However, another clinic had a policy of transferring a maximum of two embryos. The women had no say in the number of embryos being transferred. (sufficient information) • Surrogate women were not given the choice of the mode of delivery (sufficient information) • Decisions about delivery were made by the doctors (sufficient information)
Infrequent
Some events were reported on an infrequent basis. Only two women from the Tanderup study and two from the Sama study reported they were unaware of the requirements for caesarean section deliveries. The other studies were silent on this point. While most of the studies had evidence of women returning to surrogacy for a second time, the numbers varied significantly among the studies. There was evidence of inappropriate medical practices, such as preparing more than one surrogate woman but only continuing the ‘healthiest’ or ‘most compatible’ pregnancy; paying 263
the surrogate mother to continue with a multiple pregnancy against her wishes; and performing a termination of pregnancy without first obtaining the consent of the surrogate mother or her husband.
Those findings that occurred on an infrequent basis are listed below:
• More than one woman was assigned to an intended parent or couple to increase the chances of a successful pregnancy, followed by foetal reduction at the request of the intended parents if too many embryos took hold. Other reasons for preparation of more than one surrogate mother include providing an opportunity to choose the woman most compatible with the intended mother or with the healthiest endometrium. The women were not involved in decisions about this process. (sufficient information) • Two women were not informed they would undergo a caesarean section (sufficient information) • One woman was required to undergo an abortion without her consent (sufficient information) • There is some evidence that surrogate women were coerced by their husbands to engage in commercial surrogacy. However, there is also evidence that the husbands objected to the arrangements and required persuasion (voluntariness) • Surrogate women engaged in surrogacy on more than one occasion.299 There is evidence this is motivated by financial need. (voluntariness)
F Unfair Distribution of Benefits The distribution of benefits in a transaction can be unfair because the value of what is exchanged is incommensurate or because one party does not receive that which she is rightfully owed.300 Wertheimer’s principles of unfairness (as outlined in chapter 4 section IID3) will be applied to the evidence to determine whether the distribution of benefits in commercial surrogacy transactions is unfair. Payments and
299 Repeat surrogacies is difficult to categorise, particularly as all participants in Karandikar’s study had engaged in surrogacy previously, thereby suggesting it should be placed higher on the spectrum. It has been categorised as ‘infrequent’ for two reasons. First, very few of the participants in the CSR study had engaged in previous surrogacies and this study has by far the largest participant numbers. Second, the information is not salient because there is insufficient evidence as to why the women return. 300 Vida Panitch, ‘Transnational Surrogacy and the Justice Condition of Nonexploitation’ (2014) 14(5) The American Journal of Bioethics 46, 47. 264
other benefits as well as detriments to the surrogate women are examined. This will inform Wertheimer’s Inequality Principle, the Hypothetical Market Principle, and the Contribution Principle.
In order to analyse whether there is an unfair distribution of benefits to the surrogate mother, the following sub-headings are employed: payment and other benefits, denial of benefits, detriments, and stigma. Due to the specific research questions addressed by each study, not all studies provide information that is relevant to each sub-heading. However, in combination the evidence revealed by the empirical research is strong. All except Munjal-Shankar and Tanderup report details of the surrogate mother’s earnings. Other benefits received by the women are revealed all of the studies, with the exception of Tanderup. Detriment imposed by commercial surrogacy arrangements on Indian surrogate women is addressed in all studies with particular strength in the reports by the CSR, Sama, Tanderup, Pande, and Saravanan. Most studies reported stigmatisation as being a significant concern to the surrogate women, although the reports by Saravanan and Tanderup were silent on this issue. The following section analyses the empirical research as it applies to payment and other benefits, denial of benefits, detriments and stigma.301
The empirical research reveals that Indian surrogate women face stigma and hide or lie about their pregnancy. Some of the medical procedures they undergo are painful and have undesirable side-affects or consequences. There is some evidence that the women do not receive the remuneration they were promised. There is also evidence that the money earned through surrogacy resolved financial problems.
1 Payment and other benefits
Centre for Social Research (CSR) Payment. Surrogate women in Anand, Surat and Jamnagar received between $3,600 and $7,000 for performing a commercial surrogacy contract. Those in Delhi and Mumbai received between $3,800 and $7,100.302 There was generally an extra
301 Some of the information in this section repeats information in previous sections due to the details required to satisfy the key concepts of exploitation. For example, earnings and attribution of earnings are relevant to both vulnerability (section D above) and distribution of benefits. Similarly, reference to medical treatment is relevant to both consent in terms of whether sufficient information has been provided, and the unfair distribution of benefits in terms of detriment. 302 Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Delhi and Mumbai), above n 3, 71; Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Anand, Surat and Jamnagar), above n 3, 47. 265
$1,800 to $2,700 for carrying twins. However, the remuneration paid to the surrogate women was determined by the treating doctors in all cases. This report cited the cost of surrogacy in India at $10,000 to $35,000 and in the United States between $59,000 and $80,000.
Attribution of earnings. The CSR report asserted that the women used the money they earned through surrogacy to educate their children and build new houses. Other allocations included saving for the marriage of a daughter and purchasing land.303 Research observations revealed that the payments were insufficient to cater for all the needs anticipated by the women. 304
Hostel living. The number of surrogate women who stayed in the surrogacy hostels varied between jurisdictions. In Anand, around 90% of women stayed in hostels, whereas in Surat and Jamnagar most stayed in their own homes. There was parity in Delhi and Mumbai where 60% from both regions stayed in the hostels provided. Little information was provided about whether the women enjoyed their stay except to note they missed their families.
Sama Payment. The participants in the Sama study earned between $2,000 and $6,700, with the majority earning around $3,600. With the exception of one, the surrogate women in Delhi received around $2,600 more than those from the Punjab region. However, Delhi has a visible global surrogacy industry that attracts national and international clients whereas the industry in Punjab is still evolving. 305 Generally, the earnings from surrogacy provided the women with two to six times their yearly household income.
Attribution of earnings. Most of the women required the remuneration they received from their surrogacy arrangements to meet ‘emergent needs and financial problems that they or their families were unable to address with their usual sources
303 Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Delhi and Mumbai), above n 3, 92; Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Anand, Surat and Jamnagar), above n 3, 58. 304 Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Delhi and Mumbai), above n 3, 93; Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Anand, Surat and Jamnagar), above n 3, 59. 305 Sama Resource Group for Women, above n 4, 108. 266
of income or assets’.306 In particular, the report referred to the repayment of debts due to sudden death and accidents, payment of mortgages and money for the husband to buy land. However, there was little evidence about whether the money was actually directed towards or improved these needs. One woman was happy with her earnings reporting:
All my problems have been resolved through surrogacy. I couldn’t have got as much money as there is in this surrogacy. If I do stitching work, then how much do I get? Sixty rupees…307
There were also reports of improved access to healthcare for the duration of the pregnancy; in particular, the medical testing the women were required to undergo revealed conditions such as anaemia and tuberculosis that would not otherwise have been discovered.308
Hostel living. Most of the surrogate women in the Sama study remained in their own homes for the duration of the surrogacy, with only two women moving into a surrogacy hostel.309 However, they faced challenges in meeting the strict dietary requirements and routines instructed by the clinics due to ‘affordability, physical capacity and frustration at having to follow the regime’.310
Pande Payment. Pande’s research revealed that the remuneration of surrogate women was between $3,000 and $5,000 (approximately 4 to 7 years income for the family of the average surrogate woman). Pande cited total surrogacy costs in India at $20,000 and in the United States and Canada at $30,000 to $70,000. 311
Attribution of earnings. Other advantages included using the money to educate, feed and clothe their children, rebuild houses, payment of mortgage fees and to provide dowry for their daughters. 312
306 Ibid 51. 307 Ibid130. 308 Ibid 63. 309 Sama Resource Group for Women, above n 4, 38, 39. 310 Ibid 38, 84. No further information was provided about the specifics of these reasons. 311 These figures are taken from Pande’s research which she carried out in 2008 and an article informed by that research written in 2010. The exchange rate used by Pande was 0.02. Pande, ‘“At Least I am not Sleeping with Anyone”: Resisting the Stigma of Commercial Surrogacy in India’, above n 92, 295. 312 Pande, ‘Not an “Angel”, Not a “Whore”: Surrogates as “Dirty” Workers in India’, above n 92, 159, 160, 161. 267
Hostel living. Some of the women who resided in surrogacy hostels viewed it in a positive light. Pande detailed her interview with one surrogate mother who, despite the injections and strict regime, found the hostel homely:
This doesn’t feel like a hostel at all. This is more like home. As long as we are inside the house we can move around freely, watch TV and sleep. We even have a prayer room where we all pray in the mornings and evenings. Everything works like clockwork … Then the English tutor comes and teaches us how to speak in English. We will be learning how to use a computer next.313
However, the hostels placed behavioural restrictions on the women. Some found the controlling nature of hostel and daily routine suffocating:
Get up at 8 a.m. and have some vitamins with our breakfast. Sleep. Get up in time for Doctor Madam’s visit. Sleep. Get up for lunch. Mostly we get served a fixed lunch. Along with whatever medicines we have left… Madam has told us that all mothers who want a healthy baby should take this diet. I know it’s required for the baby, so I can’t create a fuss.314
Not all women resided in hostels. One surrogate woman reported that the medical treatment available to her as a surrogate mother far exceeded the treatment she received when pregnant with her own children:
…this time is totally different. I am much more pampered… The doctor does not allow us to do any housework so I have hired a maid. I pay her with the money the (intended) couple sends every month. And since they want me to be strong and healthy, I eat lots of ice creams, coconut water, milk etc, everyday. I pay for this out of the monthly cash…315
There was also evidence of surrogates appearing pleased with their outcomes and the opportunities surrogacy could provide for them. They engaged in surrogacy for a second time:
…I always dreamt of being an air hostess. But when I saw the situation at home – with my father earning only 1500, I knew I couldn’t study any more. I just wanted to see America once, so badly. Once I got married I thought it would never happen.
313 Pande, ‘Commercial Surrogacy in India: Manufacturing a Perfect Mother-Worker’, above n 92, 982-3. 314 Ibid 982. 315 Pande, above n 156, 96. 268
But now that I am planning to do this (surrogacy) for the second time, I feel ‘Why not’?316
Karandikar Payment. Karandikar’s research revealed surrogate women earned between $3,000 and $5,000 with remuneration for twins at $4,000 to $6,000.317 Karandikar reported that surrogacy costs over $100,000 in the United States and described India’s costs as one-third of that sum.318
Attribution of earnings. Participants in Karandikar’s research indicated financial need as the reason they entered into the surrogacy arrangements. Specific uses to which the money was to be attributed included treating illness, reducing existing loans, and repairing the house. Others were less specific in their response, stating they had financial problems or their husbands could not provide for them. There was a strong indication in the responses and comment by the author that the participants were from ‘low socio-economic backgrounds and had a compelling need for money’ which surrogacy could assist to alleviate.319
Saravanan Payment. Saravanan reported that the participants earned approximately Rs250000 for their ‘services’ which equated to approximately $4,500. The family income of the participants was reported as being between Rs3000 ($55) and 6,000 ($110) per month. Saravanan calculated that the remuneration the participants received through their surrogacy arrangement equated to 20 years income. Overall, surrogacy costs were placed at Rs 1400000 ($25,200). 320
Attribution of earnings. Surrogacy provided money for expenses which the participants were otherwise unable to meet. For example, three participants had an ill family member, one had a child with disabilities, and three found it difficult to make ends meet due to small earnings. The income of the husband of one participant was spent satisfying an addiction and four women intended to put the money earned
316 Pande, ‘Not an “Angel”, Not a “Whore”: Surrogates as “Dirty” Workers in India’, above n 92, 164. 317 Karandikar et al, above n 92, 227. Karandikar provided the data in US dollars. 318 Ibid 225. 319 Ibid 229. 320 Ibid. 269
towards their children’s education. Two participants wanted to rebuild their temporary unstable home and one wanted to purchase a house.321
Hostel living. The participants were required to reside at the surrogacy hostel and follow the rules, some of which they found strict. For example, they were required to remain in bed for 15 days following the embryo transfer. However, there were mixed reactions to the hostel living. Some of the participants missed their children and wanted to go home while others found the hostel environment a pleasant break from the domestic problems they faced at home.322
Tanderup Payment. Tanderup’s study indicated surrogacy costs in one clinic amounted to 12 lakhs or Rs1200,000 (which Tanderup estimated equated to $19,255).323 There was no information about fees paid to individual surrogate women in this study.
Rudrappa Payment. Surrogate women in this study earned $4,000 per surrogacy although Rudrappa comments that the women ‘came to understand that their labour was worth more than this’.324
Attribution of payment. The money earned through surrogacy went towards care for aging parents, children’s wellbeing and building self-worth.325
Hostel living. There were mixed reports about living in the surrogacy hostels. On a positive side, the women ‘lost a baby but found sisters for life’326 and could return home without the community knowing they had delivered a child. In addition, some enjoyed the relief from their home duties.327
Vora Payment. Vora’s research revealed surrogate women in India earned between $6,000 and $7,000 equating to approximately nine years of family income. Vora
321 Ibid 12. 322 Ibid. 323 Tanderup et al, ‘Reproductive Ethics in Commercial Surrogacy: Decision-Making in IVF Clinics in New Delhi, India’, above n 92, 8. 324 Rudrappa, above n 92, 114-115. 325 Ibid 74. 326 Ibid 95. 327 Ibid 94. 270
cited the overall cost of surrogacy in India as $20,000 compared to $100,000 in the United States.328
Hostel living. The participants in Vora’s study were encouraged to live in the surrogacy hostels where they had access to rest, education in the form of computer and English lessons, and counselling from a former surrogate woman who was now the house manager.329 The hostels received positive feedback in this study. One participant noted that she was eating better, taking more rest, and receiving more medical attention that she had during her own pregnancies.330
Munjal-Shankar Attribution of earnings. Most of the women interviewed in this study engaged in surrogacy so they could educate and provide for their children or improve their housing conditions.
Hostel living. The surrogate mothers who participated in this study were required to live in surrogacy hostels for the duration of their pregnancy. While many found the long periods of separation from their family difficult, the benefits were that the women had access to nutritious food. However, seven out of eight women reported that they were unhappy with the food. Some expressed loneliness and lack of control over their lives as they were required to rest in their rooms, provided with few recreational activities, and were generally discouraged from communicating with others, particularly the intended parents.331
2 Denial of benefits
Centre for Social Research Attribution of earnings. Clinics in all areas advised that the compensation received by the surrogate women significantly changed their lives, although the researchers advised in the reports that they could find little evidence of this. The study questioned ‘whether the payment received by the surrogate mother actually improves the socio economic status of her family’. For example, there were reports of the money earned by the women (who were living in shelter homes) being used by their husbands for unprofitable businesses or alcohol, and comments that basic house or
328 Vora, above n 92, 270. 329 Ibid 270. 330 Vora, above n 92, 269. 331 Munjal-Shankar, above n 92, 388. 271
entry-level fees alone for higher education institutions almost equalled the compensation received by the surrogate women.332 The report further noted that ‘the research team, in reality, could not find any significant changes in the lives of surrogate mother in any of the study areas (sic)’.333
Sama Medical care. The report noted that any improvement in access to healthcare during the pregnancy was counter-balanced with compromised post-partum care once delivery had occurred. Care provided after delivery was described as ‘either absent or arbitrary’ and generally no payment was extended to cover this period. This was supported by statements from the women:
…We had to buy from our own money. I went to the hospital once; they didn’t give any medicine. They said once they [commissioning parents] say, then we will give it. I said but I am in pain, after the delivery. 334
Pande Payment. There is evidence in the research of Pande that surrogate women did not always receive the remuneration they were promised. As a result, they felt cheated:
Even though everyone delivers one and we delivered two babies – still we got the same rate. They should have paid us more. That’s why we decided we don’t become surrogates again. We lost our respect in society and didn’t even get paid enough for it. 335
Saravanan Payment. Saravanan noted that the medical practitioners controlled the payment scheme with the women not receiving full payment until they had relinquished the child. Saravanan’s empirical research stated that 80% of the women were not satisfied with the remuneration they received despite considerable evidence
332 Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Delhi and Mumbai), above n 3, 72; Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Anand, Surat and Jamnagar), above n 3, 48. This implied that the money earned through surrogacy paid for the basic entry fee to the education facility but could sustain the further costs involved. 333 Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Delhi and Mumbai), above n 3, 72; Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Anand, Surat and Jamnagar), above n 3, 48. 334 Sama Resource Groups for Women, above n 4, 115. 335 Pande, ‘“At Least I Am Not Sleeping with Anyone”: Resisting the Stigma of Commercial Surrogacy in India’, above n 92, 303. 272
indicating the financial input of surrogacy can significantly increase the monthly family income.336
3 Detriments
Centre for Social Research Undesirable practices. The Delhi report described one case of forced abortion where a foetus was found to have abnormalities. When the surrogate mother objected, she was paid Rs12000 ($220) for the procedure and removed from the surrogacy centre. When other surrogate women raised objection to this they were threatened by the doctor and told to ‘keep their mouths shut’.337
The Delhi study reported cases of impregnation of two or three surrogate women for the same intended parents. The women were not aware that the intended parents had more than one surrogate working for them. The reason for this was to increase the likelihood of success. The pregnancies would continue at the behest of the intended parents. However, if the intended parents did not want two or three children, only the healthiest pregnancy would continue.338
Relinquishment. Relinquishing the baby and having to keep the entire process a secret (see stigma below) were reported by most women in the study as being the worst part of the surrogacy arrangement.339
Sama Feeling pain. The surrogate women were initially subjected to painful injections on a daily basis. Side effects reported by the women included stomach ache, nausea, excessive saliva, weakness, headaches, fever, weight gain and bloating, and urinary incontinence.
One woman reported:
336 Saravanan, above n 92, 10. This information was provided to Saravanan by a doctor at one of the participating clinics. See also Pande, ‘“At Least I am not Sleeping with Anyone”: Resisting the Stigma of Commercial Surrogacy in India’, above n 92, 303; Jonathan W Knocke, ‘Health concerns and Ethical Considerations Regarding International Surrogacy’ (2014) 126 International Journal of Gynecology and Obstetrics 183, 184. 337 Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Delhi and Mumbai), above n 3, 61. 338 Ibid. 339 Ibid 91; Centre for Social Research, Surrogate Motherhood Ethical or Commercial (Anand, Surat and Jamnagar), above n 3, 57. 273
For the first three months, I had a lot of trouble. I was in pain since there was injection after injection for three months… Only after seven-eight days does the pain subside... I was in tears and did not want any more injections. Already with all the injections there was no place left and then this injection had a thick needle. Imagine the pain….340
Another noted:
The thing is that all (my) other children were born on time, and I had no problems. They used to give me injections to delay the birth of this child. But the child could not be held in. Now I have headaches often, even fever. I had double pneumonia. Never before had I gone through any problems. 341
In addition, following the birth by caesarean section, some women experienced pain which interfered with their return to work and lifestyle in general.342
Psychological impact. Surrogate women reported feeling excluded and marginalised. Medical staff did not welcome communication and discouraged the women from asking questions. The women felt that the needs of the intended parents were prioritised:
Here the thing is that you can neither talk to the doctors nor to the couple. You have to keep your thoughts to your own self. Whatever they say, you have to do it. Madam said, ‘Do this, do that.’ And you have to do it …They will ask about all the things that they are concerned with as part of their work. The rest comes in the report. The doctors look at the report in front of them. They won’t share an experience with a human, but they will do it with a file and that is it. They won’t look at you. They will look at your file. ‘How are you? Do you feel fine? Are you eating? Is the movement okay?’ … That is all they say. Even if you try to talk to them, they will say, ‘I don’t just have one patient to see, I have many’ ... they only talk to the family (intended parents) as if it is them and not us who are pregnant.343
Relinquishment. There were also psychological impacts on the surrogate women at the point of relinquishment. Practices were adopted by the clinics to reduce the creation of a mother and child bond including immediate removal of the child post-
340 Sama Resource Group for Women, above n 4, 82. 341 Ibid. 342 Ibid 86. 343 Ibid 76-78. 274
birth and ensuring the surrogate mother did not hold or view the child. Throughout the pregnancy it was reinforced that the women were providing a womb only. They were constantly reminded that the child was to be relinquished and this was reinforced by the payment schedules which provided for the majority of the payments to be made post relinquishment. In addition, four of the five women who had delivered were provided with medication to prevent lactation. The study reported that the clinics curtailed breastfeeding in order to prevent the development of any emotional bond with the child. Comments made by surrogate women suggested that they had come to terms with having to relinquish the child, but there was some residual attachment and consequential sadness:
I was very shocked. You develop love for the child, just like when my children were born. Even now I wish I had kept one [child]. Afterwards, we had even told them that give us one girl. But they didn’t agree to it. I felt very attached to them. The day they took the children I started crying. It happens, you develop feelings. I had them for nine months in my stomach. You can feel when they are playing inside you. This much I wasn’t even able to feel at the time of my own children; they were born one at a time.344
However, other women were more resolute with their feelings and could separate the child from themselves:
It is only that I have given a place. It is only a womb (ek loak hai bus), nothing else. It is someone else’s’ so I don’t think about it.345
Other women appeared to be reconciling their position:
The child is not from one, not two, but three people. One is commissioning father. Then there is the egg donor. And the third one is me, who has nurtured the child in the stomach for nine months. The blood that is nurturing him, that is mine, right? So there are three components from three people. 346
The term ‘invisibilisation’ was used to describe the secrecy surrounding the surrogate women. They were difficult to access and not considered part of the decision-making process. To the same extent, the women contributed to the
344 Ibid 99. 345 Ibid 98. 346 Ibid 100. 275
invisibilisation of their surrogacy arrangements by hiding the surrogacy from extended family members, friends, and community members for fear of stigma.
Pande Feeling pain. Preparation for embryo transfer required heavy medication. Pande described birth control pills and injections of hormones to control the surrogate mother’s ovulation cycle, oestrogen to build the lining of her uterus, and progesterone post-transfer. She reported side effects including ‘hot flushes, mood swings, headaches, bloating, vaginal spotting, uterine cramping, breast fullness, light headedness and vaginal irritation’.347
The participants reported that the injections were painful:348
Who would do this? I have had a lifetime’s worth of injections pumped into me. Some big ones in my hips hurt so much. In the beginning I had about 20-25 pills almost every day. I feel bloated all the time. But I know I have to do it for my children’s future.349
One surrogate woman described frightening side effects from medication although she appeared to have reconciled her suffering with the opportunity of self- sufficiency:
I almost got paralysis and had to be hospitalized, because of side effects of some medicines. But I am not complaining about the pain. I worried, I cried and I complained when my husband used to beat me up in front of my children. That pain is what you do not want. This kind of pain to the body I am willing to take – it will not be wasted – it will give me enough money to make me self-sufficient.350
Undesirable practices. As noted in section IIIE above, Pande found that the clinics prepare two surrogates and keep one ‘in reserve’.351
Relinquishment. Surrogate women were advised from the beginning of the surrogacy arrangement about the need to relinquish the child, and language used by
347 Pande, ‘Not an “Angel”, Not a “Whore”: Surrogates as “Dirty” Workers in India’, above n 92, 147. 348 Ibid. 349 Ibid 160. 350 Pande, ‘Global Reproductive Inequalities, Neo-Eugenics and Commercial Surrogacy in India’, above n 92, 249. 351 Pande, ‘Not an “Angel”, Not a “Whore”: Surrogates as “Dirty” Workers in India’, above n 92, 163. This observation was also made by Tanderup et al, ‘Reproductive Ethics in Commercial Surrogacy: Decision-making in IVF Clinics in New Delhi, India’, above n 92, 6. 276
medial staff throughout their pregnancy reinforced this requirement. However, there was evidence of sadness following relinquishment.
When he cries I want to start crying as well. It’s hard for me not to be attached. I have felt him growing and moving inside me. I have gone through stomach-aches, back aches and over five months of loss of appetite! I have taken nearly 200 injections in my first month here. All this has not been easy.352
Relationship with intended parents. Pande’s research showed mixed reactions by intended parents and surrogate women in terms of their relationship. Some developed a positive relationship which continued after delivery and relinquishment of the child:
Jessy came to visit me during the godh bharai ritual [baby shower organized by the hostel matron for all surrogates], showered me with gifts and gifted Rs1500 (US$30) for my children. It’s been three years and today she [the baby born out of surrogacy] would have been three years old. I [emailed] Jessy in the morning on computer and they sent me pictures. You know, they paid me Rs1.5 laks (US$3000) extra out of happiness and gifted me a laptop when they came to take the baby. Now I can email them using the laptop and they send me picture by email.353
Other surrogate women indicated they were not satisfied with the attitude of the intended parents:
There was a lot of problems with the delivery and I had to have 15-20 bottles of IV in just two days. Ultimately I got a scissor [Caesarean section]. I was unconscious when the couple came and took away the baby. They didn’t even show it to my husband. The baby would have been three years today. But I don’t even know what he looks like. I used to think they would invite us to America. I used to think of her as a sister – all of it went to waste. Forget an invitation, they did not even call to see if we are dead or alive. They just finished their business, picked up the baby and left.354
Karandikar Feeling pain. Karandikar reported that the babies of all of the participants in her study were delivered by caesarean section. The study recognised the importance of
352 Pande, ‘Global Reproductive Inequalities, Neo-Eugenics and Commercial Surrogacy in India’, above n 92, 251. 353 Ibid 252. 354 Ibid. 277
the women being informed of the risks associated with caesarean section delivery and the need for policies structured around commercial surrogacy services; however, there was no information about whether the women had suffered any side effects.355
Saravanan Undesirable practices. Some of the findings made by Saravanan indicated there were medical practices that the participants found undesirable such as multiple embryo transfer and selective abortion. One woman reported a total abortion following an attempt at foetal reduction.356 It was also reported that all babies were delivered by caesarean section.357
Relationship with intended parents. The surrogate women wanted the intended parents to keep in touch but felt the doctors and intended parents only cared for them until they relinquished the baby. The subject clinic required the participants care for the babies post-birth if required. This attracted an additional fee. Reasons provided for having to remain with the baby were the late arrival of the intended parents, a request by the intended parents for the provision of breast milk, and to be engaged as a nanny for the intended parents while they arranged for official documentation to be processed. While the research indicated the participants were content to carry out these roles, there was a suggestion that they hoped for continued contact with the intended parents. The women requested photographs of the children, which some intended parents promised to send. Some participants felt ‘empty’ after the intended parents departed with the baby. However, this was denied by the medical practitioners.358
Saravanan notes:
One SM waited for the IPs’ arrival from Europe for three weeks. She and her husband looked after the baby girl during this period, breastfeeding, changing nappies and providing all other required care for the child. Their attachment to the baby was evident in their affectionate kissing and fondling either in response to distressed cries or during play time. The couple arrived from Europe 21 days later and immediately took the baby with them. They (SM and her husband) were shifted to the surrogate home above the clinic awaiting their payment. The IPs came to the
355 Karandikar et al, above n 92, 233-234. 356 Saravanan, above n 92, 8. 357 Ibid. 358 Ibid 9. 278
clinic two days later, paid the doctor for all the services and left. They did not attempt to meet the SM, although she was upstairs in the same building.359
While the surrogate mothers indicated that most of the intended parents were not interested in a continuing relationship, Saravanan reports that two out of the four intended parents interviewed maintained some form of contact with the surrogate mother. In one of those cases, it was a one-way relationship in that the intended parents did not give out their contact details but would make contact with the surrogate mother via phone calls or through friends who visited India. 360
Tanderup Feeling pain. The procedures which the surrogate women were required to undergo were invasive and included preparation for embryo transfer of multiple embryos and possible foetal reduction, and caesarean section.361 In two clinics a caesarean section was mandatory. In 11 clinics, the decision surrounding mode of delivery was made by the doctor. One doctor stated a preference for vaginal birth:
We aim to perform normal deliveries; only if needed, we do a caesarean section. We don’t want to give these women a scar. The intended parents cannot influence the mode of delivery. You cannot put your [CPs] decision on someone’s life. 362
However, three clinics reported that intended parents placed pressure on the doctors to perform caesarean sections and in one clinic the intended parents could determine the mode of delivery.
Undesirable practices. As noted in section IIIE, one clinic allowed intended parents to engage more than one surrogate mother at a time and would conduct selective abortions if too many embryos implanted successfully. In addition, the clinic would prepare more than one woman for the surrogacy process but select the woman with the healthiest endometrium for the transfer. Hormonal treatment would be withdrawn from the remaining women until their next monthly cycle.363
359 Ibid. 360 Ibid 10. 361 Tanderup et al, ‘Reproductive Ethics in Commercial Surrogacy: Decision-Making in IVF Clinics in New Delhi, India’, above n 92, 8. 362 Ibid. 363 Ibid 6. 279
Rudrappa Feeling pain. There were mixed reports in this study, with some women describing the hormonal injections as ‘mildly uncomfortable’ and others as ‘excruciating’.364 One woman advised that she received no support from the clinic when one of her twins died, despite advising the doctor three days prior that one baby had stopped moving.365
Relinquishment. There was some evidence that the women experienced grief with having to relinquish the child, although this was not uniform. One women said that she would return the money she earned to have the child back.366 Another commented that the pain of relinquishing the child is constantly with her.367 However, another woman, who had made a positive attempt to distance herself from the twins she carried, commented that she did not have a ‘sesame seed of desire’ for her twins.368
Relationships with intended parents. Relationships between the intended parents and the surrogate women were discouraged and thwarted by the clinic the subject of Rudrappa’s study.369
Vora Relinquishment. The women advised Vora that, despite being coached to understand that they would not be able to keep the children, ‘they missed the children after they left India and hoped to hear about their development and to receive pictures’.370
Relationship with intended parents. Little bonding took place between the surrogate women and the intended parents – partly due to the language barrier. Also, the interactions were mediated by clinic staff. Some surrogate women indicated it would be beneficial for them and for their families to maintain an on-going relationship with the intended parents.371 Vora advised that some intended parents
364 Rudrappa, above n 92, 114. 365 Ibid 157. 366 Ibid 60. 367 Ibid 59. 368 Ibid 72. 369 Ibid 136-139. 370 Vora, above n 92, 272. 371 Ibid 270. 280
wrote to the surrogate women and sent e-mails and photographs of the child in their first year, although this interaction did not continue.372
4 Stigma
Centre for Social Research Non-disclosure. Most women insisted upon remaining anonymous due to the stigma that surrogacy attracts. They did not disclose the surrogacy arrangements to their extended family members or friends. The Anand study reported that half the women in Anand (50%), the majority in Surat (74%) and all participants in Jamnagar did not want people to know about the arrangements due to the stigma.373 This figure was not disclosed in the Delhi report, except to note that the majority of women stayed in hostels because they did not want to expose the pregnancy to neighbours for fear of stigma.374
Lack of community understanding. There was little understanding in the communities about assisted reproductive technology and many people associated surrogacy with sex work. Reporting on the attitude of the husbands of the surrogate women was unclear. Some appeared to have a positive outlook at the beginning, although it deteriorated as the surrogacy arrangement progressed. Many respondents did not want to engage with the issue.375 However, one-third of the Delhi participants reported that ‘the surrogacy agreement made them lose contact with their friends and family members as they did not tell them about the arrangement due to the social stigma’. This figure was significantly higher at 83% and 100% in Surat and Jamnagar respectively.376
Sama Lack of community understanding. Stigma attaching to commercial surrogacy stems from a lack of understanding by the community about IVF, embryo transfer
372 Ibid 275. 373 Centre for Social Research, Surrogate Motherhood Ethical or Commercial (Anand, Surat and Jamnagar), above n 3, 52. 374 Ibid 51; Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Delhi and Mumbai), above n 3, 96. In Delhi, 60% of participants stayed in hostels and 56% in Mumbai. In Anand, 98% stayed in hostels, whereas this figure was 40% in Jamnagar and under 20% in Surat. 375 Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Delhi and Mumbai), above n 3, 91; Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Anand, Surat and Jamnagar), above n 3, 57. 376 Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Delhi and Mumbai), above n 3, 91; Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Anand, Surat and Jamnagar), above n 3, 57. 281
and an assumption that the women engaged in sexual relations with a man who was not her husband. Added to this was the perception that the child born as a result of the arrangement was given away in exchange for money. Comparisons to prostitution and baby-selling were made:
If you tell others, people won’t let you live. They will say things like they gave away their child; they hurl abuses at you.
They will say she is doing it for money, selling a baby for money. Things like that may be said. They might draw the wrong conclusion.’ 377
Non-disclosure. The women negotiated methods to overcome the adverse impacts of stigma. Most attempted to keep their arrangements secret. Their husband had to know about the surrogacy because their consent was required by the clinic. This often took considerable persuasion and explanation about the fertilisation procedure. Out of 11 women who responded, six told only their husbands about their arrangements; one told close family members; and one also told a niece. Only three women disclosed the arrangements to people outside the family.
Some women shifted residences during the pregnancy, advising family they had found work elsewhere, were staying with other family members, or the child was still born or given away to relatives.378
Stigmatisation had psychological consequences for the women because they were unable to speak about their condition. Even their husbands, while tolerant, were often disinterested in the pregnancy and child. However, one surrogate pointed out that there were advantages to the ‘invisibility’ of commercial surrogacy. She viewed it from a ‘supply and demand’ perspective:
If everyone knew about it and there was nothing to hide in it … If many were doing it then there would not be such problems in it. But … if it spreads, then the competition will increase. When I stitched pants, in the beginning, very few people did it and I got 25 rupees for a pant and after some time when everyone learnt to stitch, I got 11 rupees for the same pant. So it’s the same thing. If there is more publicity, then the rate will be less.379
377 Sama Resource Group for Women, above n 4, 120. 378 Sama Resource Group for Women, above n 4, 123. 379 Sama Resource Group for Women, above n 4, 127. 282
Two women advised they would not be engaging in commercial surrogacy for a second time with stigma being one of the reasons
Pande Non-disclosure. Pande reports that the media portrays surrogacy as sex work.380 Many surrogate women hide or disguise their pregnancy from their extended family. Much of the secrecy stems from a fear that the extended family will not understand the complexities of IVF treatment and will think the surrogate woman has entered into sexual relations with a man who is not her husband in order to become pregnant.381
Pande notes comments from one woman:
My parents stay close by in Ahmedabad, but we didn’t tell them. When it started showing we told them it is ours. When they asked us after the delivery where the baby was we told them it had died during delivery. I am their daughter but still I think they’ll misunderstand what I am doing. They’ll think their daughter has been sleeping with an American. 382
On the other hand, Pande noted some husbands and in-laws viewed surrogacy as a ‘team effort made by the entire family to improve the members’ financial situation’.383 In some cases, the men saw surrogacy as a calling from God which, if fulfilled, would have a positive impact on their lives.384
Most surrogate women hid their activities from their local communities by staying in the surrogacy hostels provided by the clinics. If the pregnancy was discovered, they pretended to have lost the child at birth or miscarried. Only one of the 42 surrogates interviewed by Pande did not in some way hide her surrogacy from her parents or neighbours.385
380 Pande, ‘“At Least I Am Not Sleeping with Anyone”: Resisting the Stigma of Commercial Surrogacy in India’, above n 92, 298-299. 381 Ibid 298; Pande, ‘Not an “Angel”, Not a “Whore”: Surrogates as “Dirty” Workers in India’, above n 92, 141,154. 382 Pande, ‘“At Least I Am Not Sleeping with Anyone”: Resisting the Stigma of Commercial Surrogacy in India’, above n 92, 298. 383 Ibid 303. 384 Ibid 302. 385 Ibid 299. 283
Karandikar Non-disclosure. Karandikar’s study found that most surrogate women did not advise their family members of the surrogacy arrangement and those that were advised ‘tended to protect her secret to shield others from the truth’.386 The difficulties surrogate women experienced in terms of stigma were highlighted by comments made by some study participants:
My extended family still does not know about what I did. They are very conservative and would not accept me if they were to come to know. 387
I have not told my parents about it, or my extended family because if they come to know such things they would kill me. They live in the village so they do not understand the process. 388
Research undertaken by Karandikar revealed that the community was also opposed to surrogacy. Some participants found it necessary to relocate after certain members of their community discovered they were engaged in surrogacy arrangements:
…When the church folk came to know of the surrogacy, they stopped talking to me and stopped admitting me in the church. 389
I lived in one village and once people found out about the surrogacy we had to move…When I came to the surrogate house I told people that I was taking a job for one year away from home. But then people started asking a lot of questions and then they started talking about me badly so I had to move again. 390
Lack of community understanding. Like Pande, Karandikar found there was a lack of community understanding about reproductive technology and many in the community viewed surrogacy as ‘sex work’.391
Vora Non-disclosure. Vora commented that the director of the clinic where her study took place advised that it was necessary to explain the process of IVF technology to those women who intended to become surrogate mothers in order to assure them that there
386 Karandikar et al, above n 92, 230. 387 Ibid 230. 388 Ibid. 389 Ibid. 390 Ibid. 391 Karandikar et al, above n 92, 233. 284
was nothing sexual involved.392 Rather than transferring this information to their extended families and communities, most of the women chose to hide their pregnancies from these groups. Staying in the surrogacy hostels helped achieve this.
Munjal-Shankar Non-disclosure and lack of understanding. This study found that most women kept their surrogacy arrangements a secret from their relatives for fear of stigmatisation.393 Most women found it difficult to persuade their immediate family to agree to the surrogacy arrangements because they could not understand that surrogacy did not involve coital relations.
One woman described her experience of being deserted by her husband and family when they found out about her decision to act as a surrogate mother. The woman anticipated using the funds to ‘bring up her two sons’. However, she felt she had to make a choice between a relationship with her family and the financial gain from the surrogacy arrangement.394
5 Summary of unfair distributions of benefits: A spectrum of outcomes/findings Benefits and denial of benefits. The financial benefit received by surrogate women in commercial surrogacy arrangements varies throughout the different regions. Payments generally ranged from $2,000 to $7,000. Pande’s study reported some evidence of the women not receiving the remuneration they were promised and Saravanan reported 80% of surrogate women being unhappy with their remuneration.
The women perceived their surrogacy arrangements would provide funds to educate their children, build and repair houses, pay mortgages and business debts, provide dowries for their daughters and meet other immediate financial needs. There are varied reports about whether this eventuated. The Sama study queried whether surrogacy provided the surrogate mother with her expected benefits. One surrogate woman in the Sama sample stated she did not want to repeat the process because of the stigma, deterioration in her health and consequential adverse effect on her work, and the failed promises by the intended parents. It was also noted that many of the goals the surrogate women hoped to achieve would require greater financial input
392 Vora, above n 92, 272. 393 Munjal-Shankar, above n 92, 387. 394 Ibid 388. 285
than the compensation provided by a surrogacy contract. This is supported by the statement of one woman in Karandikar’s report who engaged in surrogacy for a second time because she couldn’t get a house the first time as the money had to be spent on other pressing matters. In contrast, one participant stated that surrogacy had resolved all her problems.
There was also evidence that the surrogate mother’s access to good quality healthcare was improved for the duration of the pregnancy, but that care in the post- partum period was ‘absent or arbitrary’.395
There was significant disparity in the number of surrogate women who stayed in surrogacy hostels. For example, in the CSR report, 90% of the Anand respondents stayed in hostels for the term of their pregnancy, but in Surat and Jamnagar most of the surrogate women interviewed remained in their homes. In Munjal-Shankar’s report, which was also carried out in the region of Anand, all eight of the participants stayed in surrogacy hostels. Those women that did reside in surrogacy hostels had mixed views about their experiences. Some found them relaxing and felt well-cared for in the health context, while others reported feeling controlled and suffocated. Those that chose to remain at home or rented accommodation near the clinic had difficulty maintaining the strict dietary requirements the surrogacy clinic imposed on them. However, there were reports that the access to medical treatment that the women received during their surrogacy pregnancy outweighed the medical treatment they accessed with previous pregnancies.
There were also varied responses regarding the intended parents. Generally, the surrogate women wanted the relationship with the intended parents to continue. For some, this was achieved, with Saravanan’s study reporting that two out of four sets of intended parents maintained some form of contact with the surrogate mother post relinquishment. However, other women reported not hearing from the intended parents after the child had been relinquished to them. Rudrappa and Munjal-Shankar reported that the clinic actively discouraged interaction between the intended parents and surrogate mothers. The following section looks more closely at the detriments faced by Indian surrogate women.
395 Sama Resource Group for Women, above n 4, 71. 286
Detriments suffered by surrogate women.
Psychological Detriments. There is evidence that the surrogate women form a bond with the child. Generally, there were mixed feelings around relinquishment. Saravanan reported that some surrogate women were required to care for the children post-birth until the intended parents were in a position to take over this responsibility. One surrogate mother said that she found it hard not to become attached to the child. Participants in the CSR study reported that relinquishing the baby was one of the worst parts of the surrogacy arrangement, as well as having to keep the arrangement a secret for fear of stigma.
The clinics prepared the women for relinquishment through narrative as well as practical action, such as prevention of lactation and immediate separation from the child at birth. Some women appeared to accept this and remained disconnected from the child during gestation. However, there were expressions of emptiness and sadness at the point of relinquishment, and some women expressed a connection or love for the child. One surrogate expressed a desire to keep one of the children (she had delivered twins). A number of women cried. There were also narratives of justification displayed by the surrogate women, such as assertions that they are only providing a womb for nine months, or that they are simply one part of the three people involved in the development of the child.
Physical detriments. Physical detriments resulting from the surrogacy arrangements related to medical procedures and stigma attaching to the surrogate women. Participants in Pande’s research reported painful injections associated with the preparation for embryo transfer. One woman described being hospitalised due to side effects from the administration of medicine.
In addition, there was evidence of unethical medical practices including multiple embryo transfer followed by selective foetal reduction with one instance of total abortion, impregnating more than one surrogate mother to ensure embryo success and increasing payments to women to encourage them to keep embyos. There are no statistics about the prevalence of these unethical practices, except to note that they were reported as occurring in four of the studies (CSR, Pande, Saravanan and Tanderup). 287
Stigma. Stigma is a concern that was consistently raised in the studies, although the responses by the surrogate women varied. The majority of women in the studies hid the surrogacy arrangements from their extended family and communities. Only 1 woman out of 42 in Pande’s study chose not to hide or disguise her pregnancy from her extended family or neighbours. In Karandikar’s study, 5 out of 15 surrogate women stated that they did not tell either their family or members of their community that they were engaged in surrogacy arrangements. One participant was ostracised by the church whose members stopped talking to her and one had to relocate to another community. Two participants stated that they adopted avoidance strategies of staying in a surrogacy hostel or advising people that the baby was her own child. Similarly, Munjal-Shankar reports that a woman was abandoned by her family due to the stigma attaching to the commercial surrogacy arrangements she had entered into.
The CSR reported that the secrecy surrounding surrogacy caused a significant number of women to lose contact with friends and relatives. Living in surrogacy hostels provided the women with the means to keep their pregnancy hidden from their extended family and local communities. Those that chose not to live in the surrogacy hostels developed other ways to hide the arrangements, such as saying they had found work elsewhere or lying about the pregnancy by saying the baby had died or been given to relatives.
Despite the detrimental impact of stigma, one woman reported that keeping surrogacy invisible to the community restricted knowledge of the industry, thereby limiting the number of surrogate women who entered the market. This kept the wages comparatively higher than other employment options.
The spectrum of conclusions relating to the unfair distribution of the Indian surrogate mother’s benefits are highlighted below.
High likelihood
The empirical evidence was consistent about the range of potential earnings of surrogate women and how the women intended to use the money. Stigma was a consistently raised concern. Those findings that were highly likely to occur are listed below. 288
• Surrogate women received the equivalent of approximately $2,000–$7,000 for their role in a commercial surrogacy transaction in India • Surrogate women expected that the money earned would provide for basic needs such as food, shelter, education for children, medical needs and dowry for unmarried female members of the family • There is a social stigma associated with commercial surrogacy. Nearly all surrogate women lied about or hid the arrangements from members of their community.
More likely than not
Many of the women experienced pain and discomfort from the medical procedures they were required to undergo in order to prepare for and become pregnant. Foetal reductions occurred and caesarean sections were regularly carried out. Because of the stigma associated with commercial surrogacy, the women developed techniques to avoid or overcome the negative responses from the extended family and the community in which the surrogate women reside.
Those findings that are more likely than not to occur are listed below.
• Painful injections in preparation for embryo transfer • Multiple embryo transfer • Foetal reduction • Delivery by caesarean section • Surrogate women hide or lie about their pregnancy to their extended family and/or reside in surrogacy hostels for the duration of their pregnancy • Loss of contact with family and friends
Infrequent
While some surrogate women could not articulate their expected remuneration, there were reports of women not receiving the payments they had been promised. There were also reports of inappropriate and unacceptable medical practices. Feelings about relinquishing the child were mixed. Some women verbalised a purposeful lack of connection to the child throughout the pregnancy, while others expressed 289
emptiness and sadness at having to give the child to the intended parents. Some women were ostracised by their extended family and communities for engaging in commercial surrogacy.
Those findings that occurred on an infrequent basis are listed below.
• Preparation of more than one surrogate mother for one intended parent couple • Hospitalisation due to side effects of medicine • Total abortion following foetal reduction • A requirement for ‘15-20 bottles of IV in just two days’396 • Surrogate women do not receive the remuneration they were promised or expected, are unhappy with the remuneration received, or payments do not transpire into improved economic status • One woman had resolved all her problems through surrogacy • Feelings of sadness and emptiness at having to relinquish the child • Being ostracised by the community for engaging in commercial surrogacy • Arbitrary or absent post-partum care • Surrogate women received better medical treatment in the course of their surrogacy pregnancy than during their previous pregnancies.
G Analysis of the Themes Depicting Evidence of Exploitation
1 Taking advantage of a vulnerability Some Indian surrogate women were situationally vulnerable. They typically faced economic difficulties. The primary motivation to enter into commercial surrogacy arrangements was economic need. In all reported cases except one, the income received by the women was greater than the usual monthly income and generally the increase was significant. The women had identified specific needs towards which the money was targeted. Some women were also driven by a spiritual compulsion to help their family and viewed surrogacy as a noble act towards achieving this goal.
396 Pande, ‘Global Reproductive Inequalities, Neo-Eugenics and Commercial Surrogacy in India’, above n 92, 252. 290
The women were also pathogenically vulnerable due to the clinic staff taking advantage of the situational vulnerability of the women and creating unreasonable conditions such as back-ended payments, and a lack of protocol and rights to the child.
Of those studies that included the influence of surrogacy brokers (Pande and Karandikar), it was clear the surrogacy brokers specifically targeted women who were vulnerable. Comments made by the brokers suggest they targeted poor, desperate women and comments by the surrogate women indicated they possessed a vulnerability on which the brokers preyed. In both studies, around half the surrogate women were recruited by surrogacy brokers. The brokers received a fee in return for their recruitment.
Some intended parents took advantage of pathogenic vulnerabilities experienced by the surrogate women. Statements from the parents suggested the Indian surrogacy landscape presented attractive conditions, such as low costs and back-end payments to the surrogate women. This was reassuring for the intended parents who held concerns that the surrogate mother would become attached to the child and fail to relinquish.397 Language used by the interviewed intended parents constructed an environment where money could make things happen, the surrogate mother lacked rights to the child, and the intended parents have greater powers of negotiation than other jurisdictions offering surrogacy. This was seen as an appealing attribute of the Indian landscape.
As the exploiting party need not be aware they are exploiting the other party, or that the terms of the transaction are unfair, the fact that the intended parents do not perceive the arrangement as exploitative would not impede a finding of exploitation. The evidence reveals that the clinics created unreasonable conditions and surrogacy brokers were aware of the living conditions of the surrogate women and the obligations which were imposed upon them. Using Wertheimer’s ‘mediated exploitation’ theory, exploitation can occur through the conduct of those actors whose actions the intended parents have indirectly requested by entering into the
397 Damien W Riggs, above n 94, 321, 322; Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Delhi and Mumbai), above n 3, 123; Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Anand, Surat and Jamnagar), above n 3, 73. 291
surrogacy agreement.398 This would include clinic staff and surrogacy brokers. In addition, some intended parents have admitted to taking advantage of the situational and pathogenic vulnerabilities of some Indian surrogate women.
2 Defect in Consent Consent is constituted by elements of competence, sufficient information, and voluntariness. These concepts are analysed in the context of Indian surrogate women.
Competence. There was no evidence to support a finding that surrogate women are under age or have a cognitive impairment.
Sufficient information. While the majority of Indian women are literate, approximately 30% of women in Gujarat and 20% in Delhi are illiterate.399 These percentages are higher in the surrounding rural areas. Many surrogate women were drawn from poor villages surrounding the cities rather than from within the cities themselves.400 This indicates lower literacy rates than would be expected if the women were recruited from urban areas where, according to the Indian 2011 census, the overall literacy rates were higher.401 The census measures literacy levels of all members of the population who were greater than seven years in age, thereby suggesting the requirement for comprehension levels is not high.
However, there is disparity in the empirical research surrounding the surrogate mothers’ literacy, ranging from all surrogate mothers being able to read and write, to high levels of illiteracy among the surrogate women interviewed. The only conclusion which can be drawn from the available research is that there is a high likelihood that surrogate women were drawn from both literate and illiterate groups. The question still remains as to whether the women understood the surrogacy agreement. This depended on whether the agreement was written in a language that
398 Alan Wertheimer, Exploitation (Princeton University Press, 1999) 210. 399 Seechapter 5 section II. Ministry of Health and Family Welfare, Government of India, International Institute for Population Sciences, National Family Health Survey (NFHS-4) 2015-16, Gujarat and Delhi Fact Sheets, 2. 400 Pande, ‘Not an “Angel”, Not a “Whore”: Surrogates as “Dirty” Workers in India’, above n 92, 145; Vora, above n 92, 268, 271. 401 Overall literacy rates for women in urban India is 79.11% and in rural areas it is considerably less at 57.93%. In the region of Gujarat, the literacy rates are slightly higher. For urban women, the literacy rate is 81.03% and for women in rural Gujarat is 61.36%. See Tables 5.1, 5.2 and 5.3. 292
they understood, or whether the terms of the agreement were sufficiently explained to them.
Information provided to the women about the surrogacy contracts was deficient in terms of quality and quantity. Some surrogate women were required to sign surrogacy contracts that were written in English and which few understood.402 Basic terms were explained to the women, but not in sufficient detail to provide a full understanding of the terms and obligations imposed by the surrogacy agreement. Others did not sign the documentation until the second trimester of their pregnancy when the pregnancy had been confirmed and abnormalities eliminated, by which time the women had little bargaining power or opportunity to negotiate the terms of the contract.403 Many women did not receive a copy of their signed contract. Overall it was more likely than not that there was a lack of information provided to the surrogate women about the content of the surrogacy contracts they were required to sign either because the contracts were in English with insufficient explanation provided, signed after the pregnancy had been confirmed, or the women were not provided with a copy of the surrogacy agreement.
There was insufficient information provided to the women about the medical procedures they were required to undertake. It was highly likely that the women were unable to explain procedures such as embryo transfer and foetal reduction, and the risks associated with multiple pregnancies; nor were they involved in discussions surrounding the various treatments. There was also evidence that the women were not involved in decisions surrounding the number of embryos transferred, whether a foetal reduction should be carried out, and the mode of delivery. One woman specifically reported that she did not know how many embryos had been transferred into her uterus, although she subsequently discovered she was carrying twins; another was required to undergo an abortion without her consent. The reasons given by the clinic staff for the lack of communication and inadequate provision of information were complexity of the procedures and medical terminology, the limited education and language of the surrogate women, and lack of time due to staff
402 Pande, ‘Not an “Angel”, Not a “Whore”: Surrogates as “Dirty” Workers in India’, above n 92, 147; Sama Resource Group for Women, above n 4, 93. 403 While only two reports specifically made this finding (Centre for Social Research and the Sama report), I included it on the ‘more often than not likely to occur’ spectrum because of the large number of participants in the combined studies (200 in CSR and 12 in Sama). 293
shortages or high workload. Few women could explain the procedures they had or were going to undertake and they were not involved in decisions relating to their medical treatment.
There is evidence of inappropriate medical procedures being conducted on the women without their consent. It was more likely than not that multiple embryo transfers would occur. For example, there were many cases of more than three embryos being transferred and some cases of up to seven. However, there were also clinics in the sample that only allowed the transfer of a maximum of two embryos.
Most surrogate women were required to deliver by caesarean section. Some women were advised of this when they signed the contract. In most cases, the decision about the mode of delivery was made by the medical practitioners, with no input from or discussion with the surrogate women.
In conclusion, it was more likely than not that surrogate women were not provided with adequate advice about the nature of the contract they were required to sign. In addition, there was little allowance for negotiation of the terms of the surrogacy agreements. It was highly likely that the procedures that the women were required to undergo in the context of multiple embryo transfers, mode of delivery, and potential foetal reduction were not explained to them in terms they could understand. Finally, the women were not involved in the decision-making processes surrounding these procedures.
Voluntariness is multifaceted, requiring consideration of coercion, lack of acceptable alternatives, and offers that are ‘too good to be true’. The women were motivated by financial gain against a backdrop of religious, spiritual and social influences.
There is some evidence that the surrogate women were at least manipulated (if not coerced) by surrogacy brokers and possibly coerced by some family members. However, it cannot be said to be a typical occurrence. Support from the surrogate’s husband and in-laws varied from initial opposition and persuasion to insistence that the surrogate mother take part in the arrangements, therefore no ‘typical’ conclusion can be reached on this aspect of coercion. 294
A lack of acceptable alternatives alone is not generally accepted in the literature as sufficient to constitute coercion. However, those women who are vulnerable and sign the surrogacy contract in the second trimester of their pregnancy have virtually no bargaining power. Wertheimer argues dire background conditions cause disparity in the bargaining position rather than the surrogacy transaction itself.404 However, Panitch contends that it is a lack of ability to negotiate terms that coerces the women to engage in surrogacy.405 Intended parents are aware that the costs of commercial surrogacy in India are cheaper than in developed countries. Saravanan’s research suggests some intended parents take this into account when considering their surrogacy options. Although, as Wertheimer asserts, the dire background conditions cause the disparity in bargaining position, it is the presence of that disparity that attracts some intended parents to a destination that is relatively cheap and where some surrogate women have little power of negotiation.
There are additional cultural and religious pressures that impact upon surrogate women in India, which the research refers to as majboori, and through which they feel compelled to engage in surrogacy as a survival strategy. Underpinning the narratives of these women are quite vivid notions of desperation and lack of choice.
Five studies reported surrogate women had planned to engage in surrogacy on more than one occasion. This can be interpreted in two ways. First, it could be an indication that the women have determined that the benefits that surrogacy provided outweigh the associated burdens or that the benefits were sufficient despite the burdens, and therefore return to earn further income. Second, it could be argued the women engaged in surrogacy on more than one occasion because they have no acceptable alternative form of employment. Their choice is limited. There is evidence that women do not return to engage in surrogacy for a second time because of the detrimental health issues, unfulfilled promises by intended parents, and stigma associated with commercial surrogacy;406 and that those who engaged in commercial surrogacy on more than one occasion had a ‘continuing economic compulsion’ to
404 Alan Wertheimer, Exploitation (Princeton University Press, 2015) 110. 405 Vida Panitch, ‘Global Surrogacy: Exploitation to Empowerment’ (2013) 9(3) Journal of Global Ethics 329, 334. 406 Sama Resource Group for Women, above n 4, 87, 88. 295
return or were drawn by ‘financial lure’.407 Based on the available evidence, surrogacy provided some women with negative experiences that discouraged further engagement with such arrangements, but other women chose to return. One study found evidence of husbands coercing their wives to engage in surrogacy on more than one occasion.408 However, there is insufficient evidence to conclude that this is a ‘typical’ experience.
The evidence about whether surrogate women voluntarily engage in surrogacy arrangements is inconclusive. Some women are coerced, but it is not ‘typical’. Some chose not to engage in surrogacy on a second occasion but other women chose to repeat the experience. One argument in support of surrogate women involuntarily entering into surrogacy arrangements is on the basis of Wilkinson’s ‘omissive coercion’; that is, low skill levels, cultural and religious pressures, and the lure of high wages surrogacy can offer, situated against a backdrop of desperation and poverty could create an environment that coerces surrogate women to enter into the surrogacy arrangements as they are left with no choice.409 In other words, the pressures created by the environment in which the surrogate women are posited give them no alternative but to engage in commercial surrogacy in order to survive.
On the evidence available, leaving aside Wilkinson’s ‘omissive coercion argument,’ it cannot be concluded that entry into surrogacy arrangements is involuntary. Nonetheless, from this analysis, it can be concluded that the consent of Indian surrogate women to surrogacy arrangements is defective. For consent to be valid, the three elements of competency, provision of sufficient information, and lack of coercion must be satisfied. There is no evidence of surrogate women typically lacking competency. However, it is more likely than not that the information provided to Indian surrogate women about the content of the contracts they are required to sign was insufficient; and highly likely that they were provided with insufficient information about the medical procedures they were required to undergo. Additionally, there is a high likelihood that the women were not involved in the decision-making process surrounding these procedures. Therefore, the second
407 Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Delhi and Mumbai), above n 3, 85. 408 Saravanan, above n 92, 6. 409 Stephen Wilkinson, ‘The Exploitation Argument Against Commercial Surrogacy’ (2003) 17(2) Bioethics 169, 173-4. . See chapter 5 section IIIE (Lack of acceptable alternatives and offers that are too good to refuse). 296
element of consent, sufficient information, is not satisfied and the consent of some surrogate women is defective. Having established that there is insufficient information provided to some Indian surrogate women, it is not necessary to find the presence, or otherwise of ‘omissive coercion’.
3 Unfair distribution of benefits According to Panitch, the cooperative surplus can be unfair if the exploited party does not receive that which she is entitled.410 This can occur where the social structures of the parties are such that the exploiting party receives the opportunity for greater benefit and the exploited party the greater burden.
Wertheimer’s Inequality Principle states that a fair transaction requires equality. A commercial surrogacy transaction involves the conception, gestation and delivery of a child for an amount of money. To apply a valid measure of fairness to commercial surrogacy transactions, as required by the Inequality Principle, the arrangement is broken down to determine how an exchange takes place.
The lines are blurred in terms of exactly what is exchanged in a surrogacy arrangement and the intricacies of the arrangements require attention. For example, total surrogacy costs amount to approximately $20,000 and there is a high likelihood that surrogate mothers receive between $2,000 and $7,000.411 While this is considerably more than she earns elsewhere, it is a mere 10% to 35% of the total surrogacy costs. Brokers, medical professionals and ‘the clinic’ absorb the remaining 65 to 90% of costs.412 Ignoring this disparity in capital distribution (because even if the surrogate were to receive a greater proportion of the total payment, it would not eliminate exploitation based on the argument raised in chapter 4 section IIIB), the question raised is what are the benefits for the surrogate mother (rather than the dollar value received).
With her payment, the surrogate mother is provided with the opportunity to provide for her family in a manner she would otherwise be unable to achieve. Surrogate women intend to use the money to educate their children and marry off their
410 Vida Panitch, ‘Global Surrogacy: Exploitation to Empowerment’ (2013) 9(3) Journal of Global Ethics 329, 331. 411 Saravanan, above n 92, 11. 412 Costs are also attributed to transport and official documentation. See Saravanan, above n 92, 11. 297
daughters,413 build houses414 or to assist ill or impaired family members.415 In this context, the exchange is the prevention of a couple remaining childless in return for the ability to house, educate, marry-off and/or provide medical care to existing children and family.416 The comparison therefore is the benefit to a childless couple having a child, compared to the benefit of an Indian family with children having inadequate housing, education, marriage prospects and medical care to all of these being within reach. From these perspectives, the exchange appears more commensurable. However, there is a caveat to this assertion. There is ad-hoc evidence that surrogate women do not achieve their goals. There are reports that they are unrealistic in view of the compensation received, and that there is little evidence of any significant changes in the lives of the women post relinquishment. One study reported cases where the money was put towards failed business ventures and alcohol.417
In contrast, not all transactions where one party is under-rewarded constitute exploitation. Wilkinson provides the comparison of ‘someone very poor … forced to work in a factory for five pence per hour in order to avoid starvation for her family’ to ‘a wealthy professional person who agrees, entirely voluntarily, to spend a day working for charity for a “token” five pence per hour’. He asserts the difference between the two lies in the nature of the consent provided which, in the case of the poor woman, is questionable.418 Underpayment is not a sound argument for alleging exploitation in commercial surrogacy arrangements.419 However, the nature of the transaction may be less honourable if the incommensurable value of exchange occurs
413 Pande, ‘Commercial Surrogacy in India: Manufacturing a Perfect Mother-Worker’, above n 92, 988. 414 Pande, ‘“At Least I Am Not Sleeping with Anyone”: Resisting the Stigma of Commercial Surrogacy in India’, above n 92, 302. This quote is actually from a surrogate mother’s father-in law but and reflects the level of control he has over his daughter-in-law. Nonetheless, it depicts a lack of promised reward to the surrogate herself. 415 Saravanan, above n 92, 5-6. 416 Panitch, above n 408, 331. 417 Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Delhi and Mumbai), above n 3, 72, 73; Centre for Social Research, Surrogate Motherhood – Ethical or Commercial (Anand, Surat and Jamnagar), above n 3, 48. 418 Stephen Wilkinson, ‘The Exploitation Argument Against Commercial Surrogacy’ (2003) 17(2) Bioethics 169, 175. 419 Wertheimer refers to ‘higher pay being the dog that doesn’t bark because the receipt of monetary compensation compromises the surrogate mother’s consent by coercing her to enter into the transaction or distorting her judgment about the effects of surrogacy on her well-being’. Therefore, increasing the compensation only increases coercion which increases the level of exploitation. See Stephen Wertheimer, ‘Exploitation and Commercial Surrogacy’ (1996-7) 74(4) University of Denver Law Review 1215, 1221. 298
across a landscape of defective consent by the surrogate woman, as established in sections IIIE and IIIF2.
The Hypothetical Market Principle requires a comparison of surrogacy costs in a competitive market. Compared to surrogate mothers in other jurisdictions, the distribution of financial benefits for the Indian surrogate mother can be seen to be unfair.420 For the purpose of this thesis, the Indian market will be compared to that of the United States. The reason for this is twofold. First, some of the empirical evidence analysed in this thesis refers to the United States’ market; and second, the United States is one of the few developed countries which allows commercial surrogacy in some areas. There is a significant variation in surrogacy costs in the United States depending upon the procedure required. For example, embryo transfer is charged per transfer and not all transfers are successful. Costs of medical insurance, legal fees and agents’ fees vary. Therefore, the costs cited are an estimation only. The cost of surrogacy for intended parents in the Indian context is in the vicinity of US$20,000.421 This is significantly less than a comparative contribution made by intended parents who engage in commercial surrogacy arrangements the United States, where surrogacy costs are in vicinity of $100,000.422 Further, surrogate mothers in United States receive between US$25,000 and $40,000 whereas, according to the empirical evidence, there is a high likelihood that Indian surrogate women only receive the equivalent of US$2,000 to $7,000.423 A direct
420 Vida Panitch, ‘Surrogate Tourism and Reproductive Rights’ (2013) 28 (2) Hypatia 274, 283. Panitch compares demographic features of the Indian surrogate mother with those from the US noting differences in remuneration, education, literacy, motivation and other employment options. 421 Pande, ‘“At least I am not Sleeping with Anyone”: Resisting the Stigma of Commercial Surrogacy in India’, above n 92, 295. Saravanan estimates these costs to be Rs1400,000 which converts to approximately US$21,000. Saravanan, above n 92, 4. Tanderup et al estimate surrogacy costs in India at about 12 lakhs which, according to the study, was equivalent to approximately US$19,255. Tanderup et al, ‘Informed Consent in Medical Decision-Making in Commercial Gestational Surrogacy: A Mixed Methods Study in New Delhi, India’, above n 92, 470. 422 Pande found total surrogacy costs in the United States and Canada to be between US$30,000 – $70,000. Karandikar placed the cost of surrogacy in the United States at US$100,000. Wilkinson cited the cost of surrogacy in the United States to be between US$40,000 – $150,000. However, these figures are taken from research undertaken by Alison Bailey in 2011. See Alison Bailey, ‘Reconceiving Surrogacy: Toward a Reproductive Justice Account of Indian Surrogacy’ (2011) 26(4) Hypatia 714. Surrogacy costs area advertised to be in the vicinity of US$100,000 – $150,000 http://www.circlesurrogacy.com/costs. For the purpose of this analysis, I used statistics cited in the empirical research analysed in this thesis. 423 Research by Pande suggests Indian surrogate mothers earn around $3,000. Pande, ‘“At Least I am not Sleeping with Anyone”: Resisting the Stigma of Commercial Surrogacy in India’, above n 92, 297. Karandikar et al suggest a figure of $3,000-$5,000 with an increase of $4,000-$6,000 for twins. Karandikar et al, above n 92, 227; Saravanan provides a more specific amount of €3430 (approximately US$4200). Saravanan, above n 92, 11; Panitch, above n 408, 332. 299
comparison of sums paid to the women does not take into account cost of living variables. However, based on these figures, surrogate women in the United States can earn between 25% – 40% of the total surrogacy costs, and surrogate women in India earn between 10% – 35%. Looking at the spectrum of the earnings of these two groups, Indian surrogate women are at the lower end of the spectrum compared to women who engage in surrogacy in the United States. However, it is acknowledged this finding is based on broad estimations only. Further, as noted above, underpayment alone does not necessarily create an exploitative environment in the context of surrogacy and higher payment will not eradicate exploitation in this context.
The Contribution Principle requires analysis of the contribution made by the parties to determine whether it is reflected in the distribution of benefits. The intended parents pay $20,000. The surrogate mother receives $2000 to $7000. In addition, some women have improved health and reprieve from domestic duties.
However surrogate women undergo treatment for embryo transfer, endure a pregnancy, and deliver a child. They incur painful injections and face risks associated with multiple embryo transfer, potential foetal reduction and caesarean section. Some women are removed from their family, and often have to keep their arrangements private. In addition, surrogacy carries a stigma that emanates from an association with ‘sex-work’. There is evidence that the women lie about their pregnancies and/or live in surrogacy hostels, away for their families and communities. Some women are ostracised and forced to relocate due to the stigma. These detriments or burdens are likely to outweigh the compensation and health benefits received.
Summary
Ascertaining whether the surrogacy arrangement is fair based on the distribution and denial of benefits is challenging for a number of reasons. First, the experiences of individual surrogate women differ and a ‘typical’ experience is difficult to identify. Second, the figures provided, and upon which calculations are based, vary significantly. Third, there are insurmountable ethical issues that are beyond the scope of this thesis such as the social and economic impact of increasing payments to surrogate women or increased fees generally. Finally, the measure of how the 300
benefits are distributed is challenging because there is insufficient evidence about the impact the money earned from commercial surrogacy had on the women’s lives, and the evidence about this that is available is not consistent; for example, some women reported negative outcomes such as not receiving all the promised remuneration, or being ostracised by their community, whereas others reported positive effects such as the resolution of existing problems.
Some reconciliation is achieved using the Inequality Principle when consideration is taken of how the surrogate mother intends to use the money she earns. The surrogate mother’s family can potentially receive a financial benefit that would otherwise be unattainable. However, this argument is weakened in two ways. First, there is some evidence that the compensation received by the women does not actually make a significant change to their lives. Second, the defective consent provided by Indian surrogate women diminishes the argument that underpayment does not necessarily constitute exploitation. There is a difference between voluntarily accepting a low wage and being ‘tricked’ to do so through lack of information and insight. The Hypothetical Market Principle suggests the transaction is unfair because it places Indian surrogate women lower on the spectrum of earnings than their US counterparts. Finally, the Contribution Principle, while accepting that all participants in surrogacy arrangements make a significant contribution, must take into account the physical and psychological burdens the surrogate mother bears as a result of her contribution to the surrogacy arrangement.
The above interpretations demonstrate the multifarious nature of surrogacy arrangements and how calculations of fairness or otherwise can vary according to the interpretation placed upon the interactions. The experiences of surrogate women differ and it is difficult to make generalisations about the impact of commercial surrogacy arrangements on these women and the level of unfairness the transaction presents. However, applying the three principles of Inequality, the Hypothetical Market, and Contribution, it is difficult to find an interpretation that fairly weighs the distribution of benefits in the commercial surrogacy market. Whether it is because her consent is defective, her dreams remain unrealised, the percentage of overall costs she receives is low compared to other jurisdictions, or the burdens she endures are significant, the distribution of benefits weighs unfairly against the surrogate mother. 301
4 Overall conclusion of analysis of the themes depicting evidence of exploitation The overall conclusions in this chapter focus on the presence of evidence of exploitation, rather than its absence. In other words, the question being addressed in this context is whether there is positive evidence of Indian surrogate women being exploited.
Situational and pathogenic vulnerabilities are evident in the Indian commercial surrogacy landscape. There is evidence that brokers take advantage of these conditions when recruiting surrogate women by selecting women who are poor and in desperate need of money; clinic staff take advantage of the women by placing unreasonable conditions on the surrogate women such as making the majority of payments upon relinquishment of the child, and intended parents choose India as a surrogacy destination based on the conditions created by the clinics. There is a high likelihood that the medical staff do not properly inform the women about the medical treatment they are required to undertake, thereby taking advantage of positions of authority.
Consent of Indian surrogate women is defective. It is more likely than not that the women will be provided with insufficient information about the terms of the contract they sign; and highly likely that the women will not be able to explain or be involved in discussions surrounding the medical procedures they are required to undergo, including the associated risks. If surrogate women were provided with clearer explanations of the physical risks and challenges they may face in their surrogacy journey and greater choice and decision-making opportunities were provided to them, they would have an informed baseline upon which they can assess whether they are prepared to take the indicated risks.
Application of three of Wertheimer’s principles of fairness found that, depending on the interpretation, it could be concluded that the distribution of benefits is unfairly weighed against the surrogate mother. While there was a high likelihood that the women receive earnings that are above their usual income, and that the women have targeted the needs to which the funds will be attributed, there is a social stigma associated with commercial surrogacy. As a result, it was more likely than not that the women lied about or hid their surrogacy arrangements from friends and/or family and, in some cases, resided in surrogacy hostels. Furthermore, there were infrequent 302
findings that the women did not receive the remuneration they were expecting or promised, were unhappy with the remuneration received or could not meet their targeted goals.
The empirical studies analysed in this thesis support a finding that the three key concepts identified as being necessarily present to construct an exploitative transaction exist in some commercial surrogacy transactions which have taken place in India. That is not to say that it occurs in all commercial surrogacy arrangements, but that the available empirical research has revealed there is some evidence of exploitation. As noted in chapter 4 section IIB, an exploitative transaction, whilst unfair, is not necessarily harmful overall. Having established that commercial surrogacy is in some cases exploitative, the following chapter assesses the harm associated with commercial surrogacy employing the framework of Mill’s harm principle. If the surrogate mother is in a worse position than she would have been had the surrogacy transaction not taken place, she will have been harmed by the exploitative transaction, and its prohibition will in that sense be justified.
H Findings and Conclusions of Chapter Five This chapter explored the lived experiences of surrogate women in India against a backdrop of the social, cultural and financial environment in which Indian commercial surrogate women are positioned. Doctrinal analysis of empirical research was conducted to ascertain whether there is evidence of the three key concepts necessarily present in an exploitative transaction: taking advantage of a vulnerability, a defect in consent, and an unfair distribution of benefits. In doing so, it generated answers to RQ 6: Is there evidence of commercial surrogate women in India experiencing exploitation?
As regards the general context of Indian surrogate women, this chapter found there are marked differences in the living standards of Indian women and this is reflected in the experiences of the surrogate women who participated in the studies informing this thesis. Despite India’s upward trajectory in the standard of living of its citizens, poverty is still visible. Poverty was a common trait of surrogate women and relief from poverty was the major incentive for the women to enter into commercial surrogacy arrangements. 303
The illiteracy rate of women is higher in rural areas than in urban areas, and many surrogate women reside in the rural sector. However, surrogate women are drawn from both literate and illiterate groups with varying levels of education.
The Indian government has developed programs aimed at improving the health of Indian women. The majority of Indian women receive ante-natal care, although the numbers are fewer in rural and slum areas. Surrogate women commented that their access to healthcare during their surrogacy pregnancy was superior to the care they accessed for previous pregnancies. However, once the child was safely delivered and relinquished to the intended parents, they reported that ante-natal care was limited.
The three key concepts of taking advantage of a vulnerability, defective consent, and an unfair distribution of benefits were explored in the context of the lived experiences of Indian surrogate women.
As regards taking advantage of a vulnerability, this chapter found it was highly likely that the sample surrogate women were situationally vulnerable due to their poor financial circumstances.; and more likely than not that they were pathogenically vulnerable due to conditions created by surrogacy clinics in terms of low cost, back- ended payment schemes, and lack of parental rights and negotiating power. There was infrequent evidence that intended parents and surrogacy brokers took advantage of these vulnerabilities.
As regards consent, this chapter found it was more likely than not that the sample of Indian surrogate women were provided with insufficient information about the contractual obligations they were required to enter into and highly likely that they did not understand the risks surrounding the medical procedures they were subjected to. In addition, it was highly likely that they were not involved in the decisions surrounding medical procedures, such as embryo transfer, foetal reduction and caesarean section. Therefore, there is evidence that the consent of some of the sample surrogate women was defective.
Furthermore, it is highly likely that the sample surrogate women faced significant economic difficulties and felt they had little choice but to enter into surrogacy arrangements whether it was because surrogacy was less risky than other means of employment or because of a spiritual compulsion referred to as majboori, which they 304
felt compelled to follow. Based on Wilkinson’s omissive coercion, considered against a backdrop of poverty and desperation, this lack of choice could provide a coercive environment thereby further compromising the consent of surrogate women.
As regards unfair distribution of benefits, there was infrequent evidence that surrogate women did not receive the remuneration they were promised or expected, were dissatisfied with their remuneration, or found their earnings did not meet their targeted goals. In addition, an application of the Inequality, Hypothetical Market and Contribution Principles allow the conclusion to be drawn that the distribution of benefits is weighed against Indian surrogate women.
Using the three key elements of exploitation identified in chapter 4, this chapter established that there is evidence that commercial surrogacy exploits some Indian surrogate women in a strong, pejorative sense. It cannot be concluded that this is a typical experience of all surrogate women or even of the sample the subject of this thesis, but it can be concluded that some exploitation exists. However, not all exploitation, even if pejorative, justifies prohibition of the exploitative conduct. Based on Mill’s harm principle, only those actions that cause harm to the interests of others justify state interference. The following chapter will explore whether the exploitative conduct of commercial surrogacy, identified in this chapter, harms Indian surrogate women within the context of Mill’s harm principle.
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CHAPTER 6: APPLICATION OF THE HARM PRINCIPLE IN THE CONTEXT OF COMMERCIAL SURROGATE WOMEN IN INDIA
I INTRODUCTION
This thesis has established in Chapter 5, that there is some evidence that commercial surrogacy exploits some Indian surrogate women in the pejorative sense. However, exploitation alone, even if pejorative, does not necessarily warrant prohibition of the exploitative conduct within the framework of Mill’s harm principle. The conduct must cause harm to others. In addressing Research Question 7, this chapter applies Mill’s harm principle to evidence of exploitation, as identified in the analysis and synthesis of the empirical research in chapter 5, to assess whether the identified exploitation causes harm to Indian surrogate women.
Harm is measured against a counterfactual baseline; that is, whether the surrogate women are in a worse position than they would have been had the surrogacy arrangements not taken place. Harms to the individual interests of the surrogate women are identified. In the context of Mill’s harm principle, harm to an interest is referred to as a set-back. An interest is set- back if it is in a worse condition than it would have been had the transaction not occurred. This assessment is made against a backdrop of the day to day life, values and expectations of the women. The benefits that the women receive from the surrogacy transaction are also identified so that an overall assessment can be made of whether, taking into account the set- backs and benefits to their interests, they are harmed overall by the surrogacy transaction.
Informed by the empirical research outlined in chapter 5, the first part of this chapter (section II) identifies evidence of harm caused to Indian surrogate women as a result of commercial surrogacy. Following this, section III employs a five-step process to determine whether the women have been harmed overall by commercial surrogacy transactions against the framework of Mill’s harm principle. First, set-backs to the surrogate women will be isolated and the interests which have been affected identified. As noted above, for the purpose of this
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assessment, the harm attributed to an individual interest will be referred to as a ‘set-back’ rather than ‘harm’ to differentiate it from the overall assessment of harm to the surrogate women. This will provide a clear picture of the interests and set-backs to those interests. Second, it will be determined whether any of the women are situated outside the harm principle because they have consented to the harm, or the set-back is of the type that does not impede an interest and is therefore considered to be minor.1 Third, an assessment of the interests and set-backs is made to determine whether the interests are set-back sufficiently to warrant protection, as not all harm to others is serious enough to invoke the harm principle. Fourth, the benefits received by the surrogate women are isolated so that an overall assessment of harm can be made. Fifth, the counterfactual baseline is applied to determine whether the surrogacy transaction has placed the women in a worse position than they would have been had the transaction not taken place. This requires a comparative assessment of the set-backs to their interests and the benefits received from the commercial surrogacy transaction to determine whether, overall, the surrogate women have been harmed. Their day to day lives, values and expectations are considered at this point. The subjective nature of this fifth assessment creates challenges which are explored.
II EVIDENCE OF HARM
A Physical Harm Procedures the sample women were more likely than not required to undergo, as identified in chapter 5, included multiple embryo transfer resulting in multiple pregnancies, foetal reduction, and caesarean section. 2 The women suffered or risked suffering side effects and harmful consequences because of these procedures. In addition, the stigma associated with commercial surrogacy, relinquishment of the child and limited postpartum contact with the intended parents and child, caused a negative response in some surrogate women. This section isolates the harms and risks of harm caused by these practices and events.
1 Joel Feinberg, Harm to Others: The Moral Limits of the Criminal Law (Oxford University Press, 1984) 47. It is acknowledged that in order for exploitation to have occurred in the strong sense adopted in this thesis, the consent of the surrogate women must be defective. 2 Tanderup et al, ‘Reproductive Ethics in Commercial Surrogacy: Decision-Making in IVF Clinics in New Delhi, India’ (2015) Bioethical Inquiry Online DOI 10.1007/s11673-015-9642-8, 9; Sharmila Rudrappa, Discounted Life: The Price of Global Surrogacy in India (New York University Press, 2015) 115.
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Preparation of embryo transfer. All of the surrogate women experienced embryo transfer and it is more likely than not they experienced pain during the process. Participants in the Pande and Sama study describe experiencing pain and discomfort from procedures associated with the preparation of embryo transfer and post transfer interventions.3 The women were required to take a significant number of tablets and subjected to painful injections. Reported symptoms include hot flushes, mood swings and headaches. One women reported temporary paralysis due to the side effects of medication.4 There is infrequent evidence of more than one surrogate woman per intended parent or couple being prepared for embryo transfer.
Multiple embryo transfer. The evidence revealed that it was more likely than not that the women were subjected to multiple embryo transfers. Multiple pregnancies resulting from multiple embryo transfers have been associated with higher risks of premature rupture of membranes, pregnancy-induced hypertension, and gestational diabetes mellitus.5 One woman reported that she had to be hospitalised due to side effects from the medication. Surrogate women described the medical practices and/or procedures as unacceptable or undesirable particularly in the areas of foetal reduction and birth by caesarean section.6
Foetal reduction. It was more likely than not that foetal reduction would be carried out if required. This posed the risk of total abortion and long-term psychological trauma.7 One woman reported experiencing a total abortion following foetal reduction. Caesarean delivery. It was more likely than not that the women delivered by caesarean section, which carries risks such as infection of the wound, thrombosis, excess bleeding and damage to the bladder and ureter.8 One woman reported that she required a significant amount of intra-venous fluid in a short period of time following delivery.
3 Amrita Pande, ‘Not an “Angel”, Not a “Whore”: Surrogates as “Dirty” Workers in India’ (2009) 16 Indian Journal of Gender Studies 141, 147; Sama Resource Group for Women, ‘Birthing a Market A Study on Commercial Surrogacy’ (2012) 82; See chapter section section III-VI. 4 Amrita Pande, ‘Global Reproductive Inequalities, Neo-Eugenics and Commercial Surrogacy in India’ (2016) 64(2) Current Sociology 244, 249. 5 J Qin, H Wang, X Sheng et al, ‘Pregnancy-related Complications and Adverse Pregnancy Outcomes in Multiple Pregnancies Resulting from Assisted Reproductive Technology: A Meta-analysis of Cohort Studies’ (2015) 103(6) Fertility and Sterility 1492, 1505. 6 Sheela Saravanan, ‘An Ethnomethodological Approach to Examine Exploitation in the Context of Capacity, Trust and Experience of Commercial Surrogacy in India’ (2013) 8(10) Philosophy, Ethics and Humanities in Medicine 8/12 http://www.peh-med.com/content/8/1/10. 7 Ibid, 8. 8 Stephen Wilkinson, ‘Exploitation in International Paid Surrogacy Arrangements’ (2016) 33(2) Journal of Applied Philosophy 125, 130.
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B Psychological Harm Stigma. There is a high likelihood that the sample Indian surrogate women experienced stigma because of their commercial surrogacy arrangements. This was due to many factors. First, members of the communities from which surrogate women were drawn were unfamiliar with reproductive technology. They believed the women had sexual intercourse with a man to create a child which she then gave away. Therefore, parallels were made between surrogacy and ‘sex work’. Second, even for those who understood the workings of reproductive technology, the separation of gestation from motherhood disrupted traditional expectations surrounding pregnancy and triggered social disapproval. Challenging social norms creates societal resistance which can manifest as stigma attaching to those who engage in the challenging conduct.9 Third, the literature asserts that ‘economic disparities play a large role in perceptions of surrogacy’ which involves women from poor backgrounds. This creates a platform for ‘moral rhetoric and stigma’.10All studies reporting on stigma viewed it as a significant and serious concern for the surrogate women.
Many surrogate women chose to avoid the stigma and consequential repercussions from the extended family and, particularly the community, by living in hostel accommodation provided by the clinic during their periods of confinement.11 The surrogate home or hostel was a means by which surrogate women could remove themselves from their community to avoid stigma as well as provide relief from the day to day chores and domestic problems. However, many missed their children. The surrogacy clinics encouraged and, in the case of one clinic, mandated that the women stayed in the hostels.12 From the clinic’s perspective, confinement to the hostel aided health of the women and ensured the safety of the foetus.13
9 Paula Abrams, ‘The Bad Mother: Stigma, Abortion and Surrogacy’ (2015) American Society of Law, Medicine & Ethics 179, 179. 10 Pande, above n 3, 154. 11 Karandikar et al, ‘Economic Necessity or Noble Cause? A Qualitative Study Exploring Motivations for Gestational Surrogacy in Gujarat, India’ (2014) 29(2) Journal of Women and Social Work 224, 230-231. 12 Saravanan, above n 6, 12; Amrita Pande, ‘Commercial Surrogacy in India: Manufacturing a Perfect Mother- Worker’ (2010) 35(4) Signs 969, 981. 13 Pamela Laufer-Ukeles, ‘Mothering for Money: Regulating Commercial Surrogacy’ (2013) 88 Indiana Law Journal 1223, 1268.
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The hostels maintained significant control over the women.14 However, for many surrogate women, living away from home was a way to avoid the stigma attaching to surrogacy.15
The women were aware of the potential for stigma and engaged in avoidance tactics to avert the consequences by not telling their friends and extended family about the surrogacy arrangements and living in the surrogacy hostels.16 Others moved away from their village under the pretence of alternative employment prospects and lied about the result of the pregnancy, asserting the baby had not survived.17 It is more likely than not the women experienced loss of contact with friends and family because of the secrecy surrounding the commercial surrogacy arrangement.
There is infrequent evidence of women being ostracised. One woman was deserted by her father, brother and sister-in-law after she advised them she was entering into a surrogacy arrangement.
Relinquishing the child. The surrogate women were told by the medical practitioners and other clinic employees that they must relinquish the child once they gave birth. Whether the child was relinquished immediately, or after a period of time, was often determined by the intended parents. One empirical study revealed that, on some occasions, the intended parents requested the surrogate mother stay with them for a short period to give the intended parents an opportunity to bond with the child, or to ensure the child is breastfed. In other instances, surrogate women took on the role of the child’s nanny during this period. One clinic mentioned additional payment for this work.18 Most surrogate women experienced some attachment to the child or children but were expected to exercise self-control during this time. There was infrequent reporting of women expressing feelings of loss or emptiness.19
Generally, the surrogate women wanted to retain contact with the intended parents. Pande asserts the women imagined they had a special bond with the intended parents as a means of reducing the commercialised nature of the relationship and their feelings of disposability as
14 Pande, above n 12, 982. 15 Karandikar et al, above n 11, 230. 16 Karandikar et al, above n 11, 233; Kalindi Vora, ‘Potential, Risk and Return in Transnational Indian Gestational Surrogacy’ (2013) 54(7) Current Anthropology 97, 100, 101. 17 Karandikar et al, above n 11, 230; Amrita Pande, ‘“At Least I Am Not Sleeping with Anyone”: Resisting the Stigma of Commercial Surrogacy in India’ (2010) 36(2) Feminist Studies 292, 298. 18 Saravanan, above n 6, 9. 19 Ibid.
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portrayed by medical staff. It made them feel worthwhile.20 For others, retaining contact with intended parents was a means of keeping contact with the child or maintaining hope that the wealthy intended parents felt they owed a beneficial duty to the surrogate women and their families.21
However, few of the women interviewed were given the opportunity to maintain their relationship with the intended parents. Research carried out in the United States and the United Kingdom suggests a continuing relationship between the surrogate mother and the intended parents is important for the surrogate’s well-being.22
The medical practitioners were controlling forces and advised the surrogate women and intended parents not to maintain contact. In fact, the medical practitioners denied the women developed feelings for the children they had carried. Research suggests this is not always the case.23 Some surrogate women wanted to maintain contact with the intended parents, and some intended parents may have been willing to do so if they knew of the surrogate’s feelings. However, this was not typical of all cases.24
Repeat surrogacies. Against this it must be noted there is infrequent evidence that repeat surrogacies occur and that some surrogate women have made the decision to engage in surrogacy on two or even three occasions. There is little evidence given about the reasons for their return, apart from one study that advised the women felt a continuous economic compulsion and financial lure, and one study suggesting there could be familial coercion on the part of the husbands. Alternatively, the women have weighed the costs and benefits of surrogacy arrangements and determined that there is a net positive affect on their welfare. There is insufficient evidence to draw a conclusion on repeat surrogacies.
20 Pande, above n 17, 307. 21 Vora, above n 16, 102. 22 Olga Van den Akker, ‘Genetic and Gestational Surrogate Mothers’ Experience of Surrogacy’ (2003) 21(2) Journal of Reproductive and Infant Psychology 145, 154, 157; Eric Blyth, ‘“I wanted to be interesting. I wanted to be able to say ‘I’ve done something interesting with my life’”: Interviews with Surrogate Mothers in Britain’ (1994) 12(3) Journal of Reproductive and Infant Psychology 189, 194; Saravanan, above n 6, 9. 23 Vora, above n 16, 102. 24 Saravanan, above n 6, 10.
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III HARM WITHIN THE CONTEXT OF MILL’S HARM PRINCIPLE
Whether the transaction is harmful to the surrogate mother, within the context of this thesis, is informed by the empirical evidence in chapter 5 about the effect of surrogacy transactions on Indian surrogate women, as isolated in section II above, and the application of the five- step process outlined in the introduction to this chapter and applied below.
A Identify Set-Backs and Isolate Interests (Step 1) Set-backs. The physical and psychological harms faced by surrogate women as identified in section II are engaged. Harm is caused when a welfare interest is sufficiently set-back. As noted in chapter 3 section IIC, harm includes both actual harm and definite risk harm and, in the context of Mill’s harm principle, is the setting back of a welfare interest; therefore, those set-backs that do not cause actual harm, but rather create a risk of harm, are included in the analysis.
Interests. There are many interests that may be affected in a surrogacy arrangement. For the interest to receive the protection of the harm principle it must be of the type that the harmed person has a right to have respected.25 Furthermore, not all the interests of Indian surrogate women are affected in a negative manner; for example, their economic interests are likely to benefit from the transaction.
As determined in chapter 3, Feinberg’s definition of ‘interests’ is adopted for this thesis. It includes ‘all the basic requirements of man’s well-being which are shared by nearly all his fellows and from which his ulterior interests can grow’. Specific interests included in Feinberg’s definition as outlined in chapter 3 section IIB are physical health and vigour, the integrity and normal functioning of one’s body, the absence of absorbing pain and suffering or grotesque disfigurement, minimal intellectual acuity, emotional stability, the absence of groundless anxieties and resentments, the capacity to engage normally in social intercourse, enjoyment and maintenance of friendship, minimal social intercourse, minimal income and financial security, a tolerable social and physical environment, and freedom from interference and coercion.26 Not all of these interests will be applicable to Indian surrogate women and the
25 Feinberg, above n 1, 108-109. 26 Ibid 37.
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value of these interests is not uniform. For example, minimal income and financial security is not an interest which, from a Western perspective, is necessarily attributed all Indian surrogate women. The empirical research reveals that many women are from desperately poor backgrounds and surrogacy is essentially a ‘survival strategy’. Therefore, financial security is not an interest they possess, although their finances might be improved as a result of the surrogacy transaction. The interests described by Feinberg will require adaptation for the purpose of this thesis.
For the purpose of the harm principle, harms caused by embryo transfer, foetal reduction and caesarean section, stigma and relinquishing the child will be referred to as set-backs because it is those harms which potentially set-back the welfare interests of Indian surrogate women. The following section outlines the cause of the set-backs, the set-backs and risks, and the interests affected by the set-backs.
1 Physical set-backs Embryo Transfer. Reported side effects of embryo transfer include ‘hot flushes, mood swings, headaches, bloating, vaginal spotting, uterine cramping, breast fullness, light headedness and vaginal irritation’27 and one report of temporary paralysis.28
Interests affected. These set-backs would potentially affect the interests of physical health and vigour, and absence of excessive pain.
Multiple pregnancies, foetal reduction and caesarean section. The risks associated with these procedures include the premature rupture of membranes, gestational hypertension and gestational diabetes mellitus, total abortion and long-term psychological trauma (with one report of actual total abortion), infection of the wound, endometriosis, thrombosis in the legs, excess bleeding and damage to the bladder and ureter.
Interests affected. The interests potentially affected by these set-backs include physical health and vigour, absence of excessive pain, emotional stability (if psychological trauma is experienced), and possibly a tolerable social and physical environment.
27 Pande, above n 3, 147. 28 Pande, above n 4, 249. The nature of the medicine which caused a reaction in this woman is not disclosed, so I cannot ascertain whether it occurred during the preparation for embryo transfer or at another stage of the surrogacy. However, this condition is clearly more serious than the other side effects described.
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2 Psychological set-backs Stigma. Set-backs caused by stigma include suffering criticism and infrequent reports of ostracism leading to a need to relocate. Loss of contact with friends and family was also a reported set-back. Avoidance techniques, including re-settling, hiding and lying about the surrogacy arrangement, were employed.
Interests affected. The interests being affected by stigma are emotional stability, anxieties, and the capacity to engage in social intercourse, enjoyment and maintenance of friendship and a tolerable environment. Depending on the work opportunities in their new location, surrogate women who are forced to relocate could also suffer a lack of economic sufficiency. In addition, if the stigma triggers chronic physiological stress responses, the interests of physical health and vigour are set back. These conditions would not have existed had the stigma not been present.
Relinquishing the child. Set-backs associated with relinquishment include feelings of loss or emptiness, exacerbated in some cases by a continued post-birth, short-term relationship with the child and the intended parents. The evidence is infrequent and insufficient to view these as anything more than feelings of disappointment and hurt, rather than lasting psychological harm.
Interests affected. Interests affected in this context relate to anxieties and emotional stability.
3 Summary of interests affected It is difficult to predict with certainty the interests that will be affected by the set-backs experienced by the women. Their experiences differ and the empirical research revealed that there is no ‘typical’ surrogate mother. From the evidence available, and adopting Feinberg’s interpretation of welfare interests, the interests of the sample Indian commercial surrogate women which may be set-back as a result of the surrogacy arrangement as indicated by the set-backs identified, concern physical health and vigour, absence of excessive pain, absence of anxieties, the capacity to engage in social intercourse, enjoyment and maintenance of
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friendship, emotional stability, economic sufficiency and the right to exist in a tolerable environment.29
In accordance with the definition of harm developed in chapter 3, these interests must be viewed against the social, economic and environmental backdrop in which the women are posited. The benefits commercial surrogacy offers must also be considered in making an overall determination of harm. However, before engaging in this, step 2 requires those set- backs which are outside the harm principle to be identified.
B Consent and Minor Harms and Hurts (Step 2) Not all set-backs to interests will attract the harm principle.30 For example, minor hurts and harms to which the surrogate mother has consented are excluded.31
1 Consent Whether surrogate women consent to the commercial surrogacy arrangement must be taken into consideration. If the surrogate mother has consented to the arrangement and the terms, obligations and risks it demands, she will not be protected by the harm principle if she is harmed within the context of those arrangements.32 This is asserted by Mill:
[T]here is a sphere of action in which society, as distinguished from the individual, has only an indirect interest; comprehending all that portion of a person’s life and conduct which affects only himself, or if it also affects others, only with their free, voluntary and undeceived consent and participation.33
It is supported by Feinberg:
One class of harms … must certainly be excluded from those that are properly called wrongs, namely those to which the victim has consented. These include harms voluntarily inflicted by
29 Feinberg, above n 1, 37, 60. 30 John Stuart Mill, ‘On Liberty’ in Albert William Levi (ed), The Six Great Humanistic Essays of John Stuart Mill (Washington Square Press, New York, 1963) 218-219; Feinberg, above n 1, 12. 31 Mill, above n 30, 137; Feinberg, above n 1, 45-46, 189. 32 Alan Wertheimer, ‘Two Questions About Surrogacy and Exploitation’ (1992) 21(3) Philosophy and Public Affairs 211, 215. 33 Mill, above n 30, 137
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the actor upon himself, or the risk of which the actor freely assumed, and harms inflicted upon him by the actions of others to which he has freely consented.34
The empirical research analysed in chapter 5 revealed that consent obtained from the sample women was defective due to the lack of information provided to them about the surrogacy agreement, medical procedures, and treatment they were required to undertake. The women had little understanding of the obligations and risks associated with the arrangements. In addition, religious and cultural pressures situated in an environment of extreme poverty indicate that some surrogate women were ‘omissively coerced’ to engage in commercial surrogacy. On this basis, it is asserted that, for many surrogate women, consent to engage in commercial surrogacy is defective.
The evidence informing this thesis is taken from a small sample of surrogate women yet there is no ‘typical’ surrogacy experience. There may be surrogate women who have a full understanding of the content of the surrogacy contracts and the medical procedures they are required to undergo and have made the decision to enter into the surrogacy arrangements voluntarily. These women would not be exploited within the strong model of exploitation adopted in chapter 5, or harmed within the framework of Mill’s harm principle. For those women, and adopting the parameters of this thesis, prohibition of commercial surrogacy is not justified on the basis of exploitation.
The empirical research informing this thesis revealed evidence of defective consent being provided by the sample Indian surrogate women. In those instances, consent is particularly complicated when assessed in the context of each specific set-back. There are instances where the sample women appear to have consented to a particular set-back. For example, the empirical research reports incidents of women employing tactics to avoid the stigma that is associated with commercial surrogacy. They disguise their pregnancies by practices such as living away from home or lying about the outcome of the pregnancy. These women are aware of the dangers of stigma and consciously adopt measures to avoid the problem. It is questionable whether they have consented to the harm of stigma, but choose to avoid it through strategic measures, thereby losing any protection from the harm principle. However, the consent provided by the women to engage in the commercial surrogacy transaction is
34 Feinberg also asserts that harms to which the victim has consented are excluded from the class of harms which he refers to as ‘wrongs’. Feinberg, above n 1, 35.
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initially defective as established in chapter 5 section III of this thesis. It is illogical for the women to have consented to a harm that exists within a wider arrangement to which their consent is defective. Once they are involved in the surrogacy transaction, they have little choice — they can either face the stigma or seek to mitigate its impact by adopting strategic measures. Counter to this argument is the assertion that the women had pre-existing knowledge about the set-back of stigma, and by engaging in the conduct of commercial surrogacy they have consented to this set-back.35 Following this argument, the question of consent in relation to stigma would turn on the timing and circumstances around when the stigma became known to the women. I argue that the women have not consented to the stigma. Its presence is beyond their control and contained within the framework of an arrangement that they did not validly consent to on the basis of insufficient information being provided to them. Seeking to avoid the stigma is the only means the women have to protect themselves against the potential harm it will cause. Therefore, stigma is not excluded from the harm principle on the basis of consent.
There are also reports of women engaging in surrogacy on more than one occasion. For those women, the lack of information about the surrogacy contract and medical procedures is no longer an issue compromising consent, as they have experienced these aspects of the surrogacy arrangements previously. Subject to being coerced, these women have sufficient information based on their previous experience to have consented to subsequent surrogacy arrangements.
‘Persons[s] cannot properly be prevented from doing something that will harm another when the latter has voluntarily assumed the risk of harm himself through his free and informed consent.’36 Indian surrogate women who have consented to engage in commercial surrogacy are not protected by the harm principle as applied in this thesis.
35 Many women did not sign the surrogacy agreement until after their pregnancy had been confirmed. However, there could also be a contractual argument based on an oral and/or implied agreement that came into force prior to this time, by virtue of the women submitting to the requirements of the agreement before it was signed. It is beyond the parameters of this thesis to analyse the intricacies of contract law. The analysis of the contractual arrangements for the purpose of this thesis is limited to the lived experiences of the women as revealed by the empirical research. 36 Feinberg, above n 1, 116.
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2 Minor harms and hurts Minor harms and hurts are excluded from the ambit of the harm principle.37 Feinberg describes these as unpleasant experiences that do not cause permanent harm and include ‘distress, irritations, pangs twitches, aches, throbs, non-clinical feelings of depression, grief, heartache, temporary nausea, fatigue, chills and stiffness.’38 Physical impacts, such as pain and discomfort, experienced by surrogate women associated with the procedure of embryo transfer were discussed above. With the exception of one woman who reported temporary paralysis due to an adverse reaction to medication, insufficient detail of the frequency and impact of the symptoms, which include ‘hot flushes, mood swings, headaches, bloating, vaginal spotting, uterine cramping, breast fullness, light headedness and vaginal irritation’39 is available to draw a conclusion that the pain and discomfort experienced by the surrogate women amounts to more than minor or trivial harm.
In addition, it is unlikely psychological impacts, such as feelings of loss and emptiness following relinquishment of the child, would amount to more than a minor harm, unless the feelings manifested as a psychiatric condition or result in long term psychological trauma.40 This is difficult to assess on the evidence. There are no reports of women suffering actual psychological or psychiatric conditions, but some of the reported comments have undertones of deep sadness. For example, one woman explained the difficulties of not becoming attached to the child she could feel growing inside her.41 Others appear to have a longing for contact with the baby. There were feelings of being used and discarded.42 The psychological impact of carrying and relinquishing the child requires further empirical research. However, the empirical studies informing this thesis do not provide sufficient evidence to reach a conclusion that the women suffer long-term psychological ill-health as a result of embryo transfer and relinquishment of the child.43
Therefore, the set-backs of pain and discomfort associated with preparation of embryo transfer, such as hot flushes, mood swings, headaches, bloating, vaginal spotting, uterine
37 Feinberg, above n 1, 45-46, 189. 38 Feinberg, above n 1, 45-46. 39 Pande, above n 3, 147. 40 Qin, above n 5, 1492. 41 Pande, above n 4, 251. 42 Ibid 252. 43 That is not to say these women do not suffer long-term psychological conditions, but simply that there is no evidence of this in the studies which are the subject of this thesis.
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cramping, breast fullness, light headedness and vaginal irritation, and feelings of loss and emptiness (without evidence of serious or long-term manifestation) caused by relinquishment, sit outside the harm principle for the purpose of this thesis. In addition, those women who willingly engage in commercial surrogacy will also be excluded.
Having established those set-backs to the Indian surrogate mother that are outside the harm principle, the next step in determining whether the surrogate women have been harmed is to make an assessment of the set-back to interests.
C Assessment of Set-Backs to Interests to Determine Whether Protection by Harm Principle Required (Step 3)
1 Interests It has been established in section IIIA that the interests of Indian surrogate women which are potentially affected by commercial surrogacy arrangements, as indicated by the empirical evidence of physical and psychological set-backs, surround:
1. physical health and vigour 2. absence of excessive pain 3. absence of anxieties 4. the capacity to engage normally in social intercourse 5. enjoyment and maintenance of friendship 6. emotional stability 7. economic sufficiency 8. a tolerable social environment.44
It must be determined whether the interests have been set back sufficiently or to such an extent that they warrant the protection of the harm principle.
2 Set-backs The test whether an interest has been set-back is whether that interest is in a worse condition than it would otherwise have been in had the invasion not occurred at all.45 It is acknowledged that some of the set-backs experienced, such as those associated with multiple pregnancies and caesarean section, are not isolated to commercial surrogacy arrangements.
44 Feinberg, above n 1, 60. 45 Ibid 34.
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They could occur in other pregnancy situations. However, it has been established that commercial surrogacy arrangements are wrongfully exploitative. The definition of exploitation in this thesis stipulates that consent is defective. As the surrogate mother’s choice in taking the risks associated with the exploitative transaction is compromised, the harm suffered as a result is accountable in ascertaining whether the transaction manifests as harmful exploitation. It is irrelevant that the same harm can be suffered under circumstances which are not exploitative. For example, if a psychiatrist exploits a patient’s vulnerability by sexually abusing her, it may cause harm to the patient although sexual conduct in other circumstances may not be considered harmful. Further, the majority of surrogate mothers have delivered at least one child. They are fertile women. It is unlikely they would have engaged in assisted reproductive technology or the risks associated with such treatment had it not been for their participation in a commercial surrogacy arrangement.
The following section determines whether the set-backs to the surrogate mother’s interests are sufficient to attract the harm principle. Unlike the set-backs in section IIIB, the set-backs considered in this section are serious enough not to be immediately excluded as minor harms or hurts.
Set-backs caused by multiple embryo transfer, foetal reduction and caesarean section. The empirical evidence reveals that multiple embryo transfers, foetal reduction and caesarean section are more likely than not to be carried out in the commercial surrogacy clinics which are the subject of studies examined in this thesis.
The risks associated with multiple embryo transfer (resulting in multiple pregnancies) are significant and include the premature rupture of membranes, gestational hypertension and gestational diabetes mellitus. Those associated with foetal reduction (also a result of multiple embryo transfers) include total abortion and long-term psychological trauma. Delivery by caesarean section risks infection of the wound, endometriosis, thrombosis in the legs, excess bleeding and damage to the bladder and ureter.
However, in most instances, the set-backs caused by multiple embryo transfer, foetal reduction and caesarean section are risks only. There is little evidence of the set-back actually occurring on more than an infrequent basis. Two women reported that they required hospital treatment (one related to caesarean section which is not unusual, and the other was a total
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abortion). The harm principle is employed in this thesis to prevent harm and reduce the risk of harm. As noted in chapter 3, risk involves consideration of the magnitude of the harm, the probability of it occurring, and the value attributed to the harm. If the magnitude of the harm is not sufficiently high to attract the harm principle in the first instance, the frequency of the occurrence of the harm may increase the overall risk and engage the harm principle. Feinberg asserts that in order for a less serious harm to attract the harm principle, there must be a greater probability it will occur.46 However, the value of the conduct which causes the harm is also relevant. Conduct with a high social value is less likely to attract protection from the harm principle because it is assumed greater risk will be accepted due to the value that will flow from taking that risk. The less valuable the conduct is to the actors involved, the greater the likelihood of attracting the harm principle, because the parties will be less motivated to accept risk.
The potential set-backs caused by multiple embryo transfer, foetal reduction and caesarean section are serious in magnitude. In addition, the empirical research indicates that the sample surrogate women are more likely than not to be exposed to these procedures and the associated risks. These are risks to interests that the women have a right to have respected,47 such as physical health and vigour, absence of excessive pain, emotional stability (if she experiences psychological trauma) and maintaining a tolerable social and physical environment.
The studies revealed one reported case of total abortion,48 one case of temporary paralysis due to a reaction to certain medicine,49 and a woman who reported problems with her delivery and ‘a requirement for 15-20 bottles of IV in just two days’.50 This suggests that although the surrogate women face risks regularly, the probability of the risk manifesting into an actual harm is relatively low, but still exists.51 The one reported case of total abortion does not advise whether there were significant physical or psychological impacts on the surrogate woman concerned. Although assumptions about her physical and mental health cannot be
46 Nils Holtug, ‘The Harm Principle’ (2002) 5 Ethical Theory and Moral Practice 357, 359. 47 Feinberg, above n 1, 108-109 48 Saravanan, above n 6, 8. 49 Pande, above n 4, 249. 50 Ibid 252. 51 A total of 84 surrogate women were interviewed (Vora did not disclose the number of women she interviewed so has not been included in this calculation), and 3 have suffered actual harm which 3.6%.
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made without evidence, the fact the woman lost her pregnancy is a set-back, at least, to her economic gain. The empirical evidence reveals that the women receive 70% of their wages upon relinquishment of a living child.52 Therefore, she would be denied a significant amount of money. It is also likely that her interests of emotional stability and absence of anxieties were affected, although there is no empirical evidence to support this.
The value of multiple embryo transfer is high for the intended parents because it increases the likelihood that the surrogate mother will fall pregnant. However, the value to the surrogate women is difficult to assess. Arguably, it is to her advantage to increase the likelihood of a pregnancy being achieved because it allows her to perform and be paid for undertaking her obligations under the surrogacy agreement, and, in some cases, a higher rate of remuneration will be afforded for multiple births.53 In contrast, the risks associated with transferring multiple embryos, including those relating to carrying multiple foetuses and foetal reduction, may outweigh the financial benefit. Furthermore, the empirical evidence reveals that it is highly likely that the surrogate women were unaware of the risks surrounding multiple pregnancy and foetal reduction, and that consultation about the number of embryos being transferred was denied to almost all surrogate women interviewed. There were specific cases of women not being informed or consulted about the delivery mode. Therefore, any consent provided by the women in this regard was compromised. If the surrogate mother has not freely consented to the procedures under examination, it is illogical to argue that she has voluntarily assumed a greater risk because of the value attributed to the conduct.
In summary, set-backs surrounding the risks associated with multiple embryo transfer, foetal reduction and caesarean section are of high magnitude, but there is a low probability of harm actually occurring. Exposure to the risk of harm is high. Little social value can be attributed to the procedures of multiple embryo transfer and foetal reduction because of the lack of consent to the risk. The interests potentially affected are interests of physical health and vigour, absence of excessive pain, emotional stability and maintaining a tolerable environment. If the risks associated with multiple embryo transfer, foetal reduction and
52 Saravanan, above n 6, 11. 53 Tanderup et al, ‘Informed Consent in Medical Decision-Making in Commercial Gestational Surrogacy: A Mixed Methods Study in New Delhi, India’ (2015) 94 Nordic Federation of Societies of Obstetrics and Gynecology 465, 469. Although, there is evidence that the higher payments for twins does not always occur. See Pande, above n 17, 303.
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caesarean section manifested into set-backs they would place the affected interests of the surrogate women (physical health and vigour, absence of excessive pain, emotional stability and maintaining a tolerable environment) in a worse position than those interests would have been in had the set-backs not occurred. Physical health and vigour will be set back by the physical violation and bodily intrusion required to rectify the medical conditions. Such violation will be likely to cause excessive pain and emotional instability. Furthermore, emotional stability could be set back by the effects of foetal reduction and total abortion. These set-backs would, if they occurred, impact on the surrogate women’s environment because they would be unable to function at their pre-surrogacy efficiency due to medical conditions attributed to the surrogacy arrangement.
Therefore, there is argument that these interests warrant protection by the harm principle as evidenced by infrequent experiences of harm and a more likely than not exposure to risk to harm associated with the medical procedures of multiple embryo transfer, foetal reduction and caesarean section.
Set-backs caused by stigma. Stigma is always negative, rarely redeemable, and damages a person’s identity often isolating them from the society which discredits them.54 The literature suggests stigma can cause harm.55 Effects of stigma include ‘psychological harm or chronic physiological stress responses’.56
There was a high likelihood of surrogate women being concerned that they would experience social stigma associated with commercial surrogacy and the women hid the surrogacy arrangements from their communities. It was more likely than not that the women stayed in surrogacy hostels and/or lied to their extended family about their pregnancy.57 There were infrequent reports of ostracism, abandonment, and women and their families having to relocate. However, for these women the impact of stigma was real, and harmful.
54 Rebecca J Cook, Bernard M Dickens, ‘Reducing Stigma in Reproductive Health’ (2014) 125 International Journal of Gynecology and Obstetrics 89, 89. 55 George Palattiyil, Eric Blyth, Dina Sidhva and Greeta Balakrashnan, ‘Globalisation and Cross-border Reproductive Services: Ethical Implications of Surrogacy in India for Social Work’ 53(5) International Social Work 686, 691 notes ‘uprooting the surrogate from her family and children during pregnancy may adversely affect … her own psychological health…’. 56 Abrams, above n 9, 179. 57 See chapter 5 section IIIF where it is asserted that despite adopting measures to avoid the stigma associated with commercial surrogacy, surrogate women have not consented to the stigma.
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The interests of the surrogate mother that warrant protection by the harm principle in this context are emotional stability, anxieties and capacity to engage in social intercourse, enjoyment and maintenance of friendship, economic sufficiency and a tolerable environment. If living with stigma causes chronic physiological stress responses, then the interest of physical health and vigour will also be affected. The interests are in a worse condition than they would have been had the set-back not occurred because stigma, lying and hiding will attract feelings of shame, isolation, chronic physiological stress responses and possibly psychological harm. Ostracism and relocation produces an economic cost in moving and changing or losing employment. There are social impacts, such as the loss of proximity to family, social networks and support systems. The combination of these set-backs will impact in a negative manner on the environment in which the surrogate women and their families live.
The interests and set-backs that warrant protection by the harm principle are illustrated in Table 6.1. The table is not finite, nor is it suggested that the categories are distinct. For example, set-backs such as thrombosis in the legs, excess bleeding and damage to the bladder and ureter which affect physical health and vigour, could also cause anxiety and limit the capacity of the women to engage in social intercourse. There are many factors that will influence how the interests of each individual woman are affected. Therefore, the table is used as an example to demonstrate that there are potential set-backs to interests which impact on surrogate women in commercial surrogacy arrangements, as revealed by the empirical evidence informing this thesis.
However, as well as the set-backs to the interests of the surrogate women, the benefits they receive as a result of the arrangement must be taken into account in the overall assessment of harm. The following section, step 4, isolates the benefits.
D Benefits (Step 4) As well as experiencing a variety of set-backs, surrogate women also gain benefits from their surrogacy experience. The interests likely to benefit as a result of a commercial surrogacy agreement include their interests in a tolerable environment and economic sufficiency.58 It is
58 Again, these are the obvious benefits. There may be physical and psychological benefits which flow on from the economic benefits received by the surrogate mother. It will depend on the particular circumstances of each individual woman.
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highly likely that commercial surrogacy provides surrogate women with significantly more than the usual family income. There were infrequent reports that some women enjoyed the health benefits of staying in the surrogacy hostels, such as high levels of medical care, access to nutritional food, and time for rest. These benefits would increase interests in physical health, a tolerable environment, and economic sufficiency.
Table 6.1 depicts the set-backs and benefits that are within the parameters of Mill’s harm principle and received by the sample Indian surrogate women.
Table 6.1 Causes, set-backs and interests affected
CAUSE SET-BACKS INTERESTS AFFECTED
Multiple embryo Premature rupture of membranes, gestational Physical health and vigour transfer hypertension and gestational diabetes mellitus Absence of excessive pain Total abortion Foetal reduction Long-term psychological trauma from foetal Emotional stability reduction and/or total abortion Maintaining a tolerable Infection of the wound, endometriosis, environment Caesarean section thrombosis in the legs, excess bleeding and damage to the bladder and ureter
Stigma Living with stigma Emotional stability Lying about and hiding pregnancy Absence of anxieties and the Being ostracised capacity to engage in social Forced relocation intercourse Chronic physiological stress responses (if Enjoyment and maintenance of triggered by stigma). friendship Economic sufficiency Maintaining a tolerable Environment Physical health and vigour
CAUSE BENEFITS INTERESTS IMPROVED
Payment of Earn significantly more income than she Economic sufficiency money otherwise could earn Maintaining a tolerable Pay for food, shelter, education, medical needs, environment dowry
Hostel living Health benefits of staying in the hostel Maintaining a tolerable
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environment
E Overall Assessment of Harm (Step 5) Whether or not Indian surrogate women are harmed overall is measured against the counterfactual baseline; that is, whether the surrogacy arrangement placed the women in a worse position than they would have been had the arrangement not taken place. Harm attributed to surrogate women, as indicated by the set-backs to their interests, must be weighed against the benefits received.59 If, overall, the women are in a worse position than they would have been had the surrogacy arrangement not taken place, it is a case of harmful exploitation. The question is whether the transaction is typically harmful or poses a definite risk of harm, rather than whether a particular instance or element of the transaction is harmful.60
In making a determination of whether the surrogate women are in a worse position than they would have been had the surrogacy arrangement not taken place, their set-back position is first assessed in the context of the prevailing standards to which Indian surrogate women are ordinarily exposed;61 and whether the harm and risk to harm is outside or beyond that to which they are exposed in everyday life. An understanding of the environment and living conditions of Indian surrogate women is integral to this assessment. Following this, the benefits that surrogate women receive are weighed against the harms suffered to determine the overall position of harm.
1 Measuring the harm against the prevailing environment of the Indian surrogate mother An assessment of whether a person has suffered harm in the context of exploitation requires a comparison of the harm to which the person is subjected with the prevailing standards to which the person is normally exposed.62 Therefore, the welfare interests of the Indian surrogate women will be measured against the prevailing standards of their usual environment. For the purpose of this thesis, the standard welfare interests will be those of Indian surrogate women outlined in section IIIA: physical health and vigour, absence of
59 Feinberg, above n 1, 37, 60. 60 Wertheimer, above n 32, 212, 213-214. 61 I Glenn Cohen, Patients with Passports (Oxford University Press, 2015) 292-3. 62 Ibid 292-3; Feinberg, above n 1, 188.
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excessive pain, absence of anxieties, the capacity to engage in social intercourse, enjoyment and maintenance of friendship, emotional stability, economic sufficiency and the right to exist in a tolerable environment. The prevailing standards are depicted in the empirical evidence and social science research outlined in section II of chapter 5.
For example, most surrogate women reside in rural communities. Despite the initiation of government programs to improve access to healthcare, attendance at community health centres for women and young children remains low. Further, rural women are less likely to use health facilities and seek postnatal medical checks63 than those from the urban sector.64 These aspects of the society in which the surrogate women reside suggest the risk of harm may be greater in their usual child-bearing environment than when they are engaged in surrogacy. This is supported by comments from some women who view the surrogacy environment of good food and medical care as something they had not experienced with their previous pregnancies.65 From this perspective, the healthcare standards in the commercial surrogacy environment could be viewed as less harmful than the prevailing standards. However, following delivery and relinquishment of the child, the postpartum care experienced by surrogate women was described, on an infrequent basis, as absent or arbitrary. The Indian census indicates 62.4% of women accessed this care in 2015-16. Therefore, advantages received during the pregnancy could cease for some surrogate women once the baby is delivered and custody handed to the intended parents.
This thesis now examines the specific harms and risk to harm attributed to Indian surrogate women as identified in section IIIC and listed in Table 6.1 in the context of the prevailing conditions to which they are normally exposed.
Multiple embryo transfer, foetal reduction and caesarean section. Surrogate women possess the attribute of fertility and the ability to carry a child to term. It is unlikely the
63 Ministry of Health and Family Welfare, Government of India, International Institute for Population Sciences (IIPS) and Macro International, National Family Health Survey (NFHS-3) 2005-06 India Volume 1 Mumbai IIPS (2007) xxxv; Kamala Gupta, Fred Arnold and H Lhungdim, ‘Health and Living Conditions in Eight Indian Cities, National Family Health Survey (NHFS-3) India, 2005-6’ (International Institute for Population Sciences, 2009) 216. 64 Ministry of Health and Family Welfare, Government of India, International Institute for Population Sciences (IIPS) and Macro International, National Family Health Survey (NFHS-3) 2005-06 India Volume 1 Mumbai IIPS (2007) xxxv; Gupta, Arnold and Lhungdim, above n 62, 209. 65 Kalindi Vora, ‘Indian Transnational Surrogacy and the Commodification of Vital Energy’ (2009) 28 Subjectivity 266, 269.
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prevailing conditions under which the women lived prior to entry into the surrogacy arrangements would have exposed them to fertility treatments, such as multiple embryo transfer and foetal reduction, because all of the women interviewed had previously conceived at least one child without the need to engage in assisted reproductive technology. It follows that they would not have been exposed to set-backs, such as premature rupture of membranes, gestational hypertension, gestational diabetesmillitus, total abortion and long-term psychological trauma but for the commercial surrogacy arrangement they engaged in.
Further, according to the National Family Health Survey 2005-6, 9% of children in India were delivered by caesarean section with the figures being significantly lower in rural areas (5.6%) than urban areas (16.8%).66 By 2015-16, this figure had increased to 17.2% but delivery by caesarean section in rural areas was still only 12.9%. Caesarean section delivery is not the norm in Indian society, particularly in the rural demographic from which the majority of surrogate mothers were drawn. Yet the empirical research reveals that it is more likely than not that the sample surrogate women would undergo a caesarean delivery, with little consideration afforded to their views and preferences.67 Some of the women interviewed in Tanderup’s study expressed a preference for vaginal delivery.68 Prior to entering into the surrogacy arrangement, it is unlikely these women would have been exposed to a caesarean section, unless there was a medical indication. Therefore, they would not have been exposed to the risks of infection of the wound, endometriosis, thrombosis in the legs, excess bleeding and damage to the bladder and ureter. Despite improvements in overall access to healthcare, surrogate women were subjected to risks that they would not have been exposed to had they not entered into the surrogacy arrangements.
Stigma. Stigma sets back the interests of emotional stability, absence of anxieties and the capacity to engage in social intercourse, enjoyment and maintenance of friendship, physical
66 Ministry of Health and Family Welfare, Government of India, International Institute for population Sciences (IIPS) and Macro International, National Family Health Survey (NHFS-3), 2005-06: India Volume 1 Mumbai IIPS (2007) 215. This compares to 27% for the same period in Australia. See The Australian Government, Department of Health, National Maternity Services Plan: Interventions, http://www.health.gov.au/internet/publications/publishing.nsf/Content/pacd-maternityservicesplan-toc~pacd- maternityservicesplan-chapter2#Maternal%20and%20perinatal%20outcomes. By way of contrast, Tanderup refers to research carried out by Mishra and Ramanathan in 2002 advising that ‘in India a high rate of C-sections is common in private facilities for the non-ART population’. Tanderup et al, above n 2, 9. 67 Tanderup et al, above n 2, 8-9. 68 Ibid. The exact number of women who expressed this view was not recorded.
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health and vigour (if chronic physiological stress responses are triggered) and a tolerable environment. The catalyst for these conditions is the surrogate women’s entry into the surrogacy agreement and is informed by the social and cultural environment in which they reside. The empirical research reveals that the communities where the surrogate women reside lack understanding about reproductive technologies and assume that surrogate women engage in sexual relations to become pregnant. Therefore, the prevailing standards and values that exist in the lived environment of the surrogate women nurture the stigma associated with commercial surrogacy. Consequently, the women face stigma, having to lie about and hide their pregnancies, being ostracised, relocation, and possible chronic physiological stress responses.
Summary of the prevailing standards. In summary, commercial surrogacy transactions create an environment where multiple embryo transfer, foetal reduction, caesarean section and stigma would more likely than not occur. This, in turn, creates or risks set-backs of premature rupture of membranes, gestational hypertension, gestational diabetesmillitus, total abortion, infection of the wound, endometriosis, thrombosis in the legs, excess bleeding, damage to the bladder and ureter, stigma, having to lie about and hide their pregnancies, being ostracised and having to relocate and possible chronic physiological stress responses. The welfare interests that may be affected include physical health and vigour, absence of excessive pain, absence of anxieties, the capacity to engage in social intercourse, enjoyment and maintenance of friendship, emotional stability, economic sufficiency and the right to exist in a tolerable environment. Set against a backdrop of the prevailing standards to which the surrogate women are normally exposed, the set-backs and risk of set-backs would not have occurred but for the surrogacy arrangement.
2 Calculation of set-back to interests versus benefits Benefits received. The set-backs to the interests of the surrogate women must be weighed against the benefits received as a result of the commercial surrogacy transaction in order to determine whether they are in a worse position than they would have been had the surrogacy arrangement not taken place. The benefits received by the women include earning an income that is significantly more than would otherwise be possible, and some added health benefits for those who chose to stay in surrogacy hostels. These benefits are likely to improve the surrogate women’s interests of economic sufficiency and the environment in which they live.
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The question is whether these benefits outweigh the set-backs to interests outlined above and in Table 6.1.
Payment of money. The empirical research revealed that Indian surrogate women are generally poor. For many, surrogacy was seen as a way out of poverty. Some women felt a spiritual compulsion to engage in the arrangements, rather than an act of choice. It is clear that financial gain is the pivotal reason the sample women became surrogates and should be afforded significant weight in assessing whether, overall, the women benefit or are harmed by surrogacy transactions.
Use of money. The money earned through surrogacy is intended to provide for the women’s family in a way they would otherwise be unable to do. For many, it is not a case of ‘enriching’ their lives, but rather a case of allowing the women and their families to enjoy the basic necessities of life such as shelter, education, medical needs, and, in some cases, the ability to provide dowry for a daughter’s marriage. While economic sufficiency and a tolerable environment are obvious interests that will be boosted by these benefits, it is possible that other interests could also be enhanced. For example, payment towards the medical needs of family members could increase emotional stability and reduce anxieties. Furthermore, if time that was spent caring for a loved one is freed up due to the ability to access medical assistance, the capacity of surrogate women to engage in social intercourse and enjoyment and maintenance of friendships could also be enhanced. Similarly, if the money earned from surrogacy is put towards food or shelter, it could increase the physical health and vigour of the surrogate women.
While much of the empirical research reported on the expected or anticipated uses to which the surrogate women were going to attribute their earnings, there was limited reporting of actual benefits occurring. The Sama report noted that surrogacy had resolved one woman’s problems.69 In contrast, the same report queried whether surrogacy actually provided the women with the benefits expected. One woman reported that she did not want to repeat the surrogacy process because of the stigma, detrimental health consequences and unfulfilled promises she had experienced on the first occasion, thereby indicating that any benefits she received from the arrangement has been outweighed by the stated detriments. There was also
69 Sama Resource Group for Women, ‘Birthing a Market: A Study on Commercial Surrogacy’ (2012) 130.
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a suggestion that the goals of the women required greater funds than surrogacy could offer and that observations of the surrogate women following completion of their surrogacy obligations revealed little significant change in their lifestyle. There is insufficient empirical evidence about whether the perceived benefits of surrogacy actualise, and if so, what impact this has on the lives of the women. More research is required to understand how surrogate women benefit from the income they earn.
There is some doctrinal evidence that commercial surrogacy can elevate a sense of self-worth in Indian surrogate women.70 Earning money increases their status within their familial and community environments. In addition, there are suggestions in the literature that there are flow-on effects that encourage the women to take better care of their health and personal needs.71 However, this is insufficient to draw a conclusion that it applies to surrogate women generally and does not form part of the empirical research informing this thesis.
Hostel living. The benefit received from staying in surrogacy hostels is difficult to calculate for two reasons. First, not all women stayed in hostels. Sama reported that most women stayed at home during their pregnancy, whereas Saravanan reported that all the participants in her study were required to reside in the surrogacy hostels. Second, some women benefited from the experience in terms of their health, while others found it restricting and felt homesick. The affected welfare interests of those women who benefited from hostel living were the maintenance of a tolerable environment (in preventing or reducing stigma) and physical health and vigour (if long-term health is improved).
Repeat surrogacies. There are reports of women engaging in surrogacy for a second or third time, although they are infrequent. As noted in chapter 5 section IIIE, there is no evidence of whether repeat surrogacies are due to coercion, lack of acceptable alternatives, or a decision arrived at after consideration of the benefits and burdens surrogacy offers. Over 85% of married women participated in household decisions in the Gujarat region in 2015-16. This
70 Cohen, above n 60, 400-401. 71 Ibid 400-401 refers to Kristiana Brugger, ‘International Law in the Gestational Surrogacy Debate’ (2012) 35 Fordham International Law Journal 665, 667; Pande, above n 17, 304-306; Pande, above n 3, 164. See Amrita Pande, ‘Surrogacy, Stratification and the State in India’ in Susanne Lundin, Charlotte Krolokke, Michael N Petersen and Elmi Muller (eds) Global Bodies in Grey Zones: Health, Hope, Biotechnology (SUN MeDIA Stellengosch under SUN PRESS, 2016) 91, 96.
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supports an argument that, statistically, women could participate in the decision to return to engage in commercial surrogacy for a second or third occasion. If the decision to return is made freely, the women have consented to repeating the surrogacy process because they have knowledge and insight into their contractual obligations so lack of sufficient information will not be an issue.
As noted above, some chose not to return because their experience was not positive. Additionally, many of the women interviewed were engaging in commercial surrogacy for the first time. Further research is required to determine the motivations of women engaging in repeat surrogacies.
No ‘typical’ surrogate mother. One conclusion that can be reached on the evidence is that there is that no ‘typical’ surrogate mother, and this makes assessment challenging. How the women’s interests are affected is extremely subjective. For example, Pande reported one woman wanting to use the money she earned to visit America.72 This is a stark contrast to the many women who, according to Pande, view commercial surrogacy as a ‘survival strategy’.73
Summary: set-back to interests versus benefits. The benefits that Indian surrogate women generally obtain from commercial surrogacy arrangements include an increase in their economic sufficiency and tolerable environment. When weighed against the set-backs of physical health and vigour, absence of excessive pain, emotional stability, absence of anxieties, the capacity to engage in social intercourse, enjoyment and maintenance of friendship, economic sufficiency and a tolerable environment, it could appear at the outset that, on balance, the set-backs outweigh the benefits. However, there might be further benefits gained by the women due to the nature of the benefits previously identified. For example, the benefits of economic sufficiency and tolerable environment could lead to emotional stability and a reduction in anxieties, as well as an increase in the capacity to engage in social intercourse, enjoyment and maintenance of friendship and physical health and vigour. This would counterbalance the harms attributed to these interests.
If the risks associated with the medical procedures are unlikely to manifest into harm, and stigma is avoided by aversion tactics, it could be argued that the benefits, if actually received,
72 Pande, above n 3, 164. 73 Ibid 144.
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outweigh those risks that do not eventuate. However, this is a subjective assessment and one that cannot be made on the available evidence. Further research about the benefits received by Indian surrogate women and how they impact upon their lived experiences is required before a determination can be made about whether, on balance, Indian surrogate women are harmed.
There is insufficient evidence about whether, as a result of commercial surrogacy arrangements, the set-backs to the interests of Indian surrogate women outweigh the benefits, and therefore a conclusion that, on balance, surrogate women are harmed overall cannot be drawn.
Surrogacy is not ‘typically’ harmful. While there is evidence that surrogate women are exposed to actual harm and are at risk of suffering harm as a result of the exploitative commercial surrogacy arrangement, I am unable to conclude that surrogacy is ‘typically’ harmful. The experiences of Indian surrogate women are subjective and varied, and depend upon the individual’s social and environmental surroundings and her individual experiences and views.
F Summary of the Application of the Harm Principle This chapter followed five steps in its exploration of whether surrogate women have been harmed by commercial surrogacy transactions. First, the set-backs to the surrogate mother were isolated and the affected interests identified. The interests of surrogate women which are affected in commercial surrogacy arrangements include physical health and vigour, absence of excessive pain, emotional stability, anxieties and the capacity to engage in social intercourse, enjoyment and maintenance of friendship, a tolerable environment and economic sufficiency. Set-backs to these welfare interests result from medical procedures, such as multiple embryo transfer, foetal reduction and caesarean section, and the stigma which attaches to commercial surrogacy arrangements. While the empirical evidence reveals many of the potential set-backs are risks only, the harm principle is employed in this thesis to prevent harm and reduce the definite risk of harm. The set-backs identified on the basis of the available evidence as risks to the surrogate mother include premature rupture of membranes, gestational hypertension and gestational diabetes mellitus, total abortion, infection of the wound, endometriosis, thrombosis in the legs, excess bleeding and damage to the bladder and
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ureter. These set-backs risk harm to the surrogate mother’s interests of physical health and vigour, absence of excessive pain, emotional stability and maintaining a tolerable environment.
Stigma is another cause of set-backs to the surrogate mother, which affects her interests of emotional stability, absence of anxieties and the capacity to engage in social intercourse, enjoyment and maintenance of friendship, economic sufficiency and a tolerable environment. Physical health and vigour may also be set-back if chronic physiological stress responses are triggered. The set-backs caused by stigma include being ostracised by the surrogate mother’s community and, in some instances, her extended family, and forced relocation. The empirical evidence reports actual evidence of these events occurring. Stigma is a set-back which typically places the surrogate mother in a worse position than she would have been if the set- back had not occurred.
Second, certain set-backs experienced by the surrogate mother do not attract the harm principle. The harm principle does not apply to minor hurts and harms. Pain and discomfort experienced as a result of embryo transfer, such as ‘hot flushes, mood swings, headaches, bloating, vaginal spotting, uterine cramping, breast fullness, light headedness and vaginal irritation’,74 and minor hurts such as feelings of loss and emptiness were excluded from the harm principle. This was due to a lack of empirical evidence to support a finding that these hurts and harms sufficiently set back the welfare interests of the surrogate mother.
In addition, those set-backs to which the surrogate mother consented are outside the harm principle. Surrogate women who consent to the surrogacy arrangements, including those who willingly returned to engage in commercial surrogacy for a second or third time, would not have their interests affected by the harm principle. Those women are not exploited or harmed within the parameters of this thesis; and their protection through the prohibition of commercial surrogacy is not justified by this thesis. However, there is empirical evidence of surrogate women who have not consented to the surrogacy transaction or whose consent is defective, and they are not excluded from the harm principle on this basis.
74 Ibid 147.
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Third, the interests and set-backs to interests that were not excluded were further assessed to determine whether the interests were set back to such an extent that they should be protected by the harm principle. Not all the set-backs had actualised, so that many were considered risks rather than actual occurrences. This required a consideration of the magnitude, probability of occurrence, and value of the events which caused the set-backs. Feinberg argues that a set-back with a low magnitude of harm requires a high probability for it to come within the ambit of the harm principle. Similarly, a greater magnitude of harm only warrants low probability. The value to the parties involved was also considered in this equation, because a person is likely to be willing to risk more if something is of value and society is more likely to accept such risk. Following these assessments, it was concluded that the surrogate mother suffers sufficient set-backs to a number of interests to which she has a right to have respected. These include physical health and vigour, absence of excessive pain, anxieties, the capacity to engage in social intercourse, enjoyment and maintenance of friendship, emotional stability, economic sufficiency and a tolerable environment.75
Fourth, there are benefits afforded to surrogate women as a result of commercial surrogacy arrangements. The interests which benefit from commercial surrogacy transactions include economic sufficiency and living in a tolerable environment. Her benefits include the ability to earn significantly more than her usual earnings and pay for food, shelter, education, medical needs and dowry for her family. Some women reported health benefits when staying in the surrogacy hostel. The benefits can result in an increased sense of self- worth and must be taken into account when making an overall determination of whether the surrogate mother has been harmed as a result of the commercial surrogacy transaction.
Finally, the overall harm suffered by the surrogate mother depends very much on the prevailing values, standards and conditions of her day to day environment. It has been determined that surrogate women are required to undergo risky medical procedures that they would not undertake but for the surrogacy arrangement. These include medical procedures associated with multiple embryo transfer, foetal reduction and caesarean section. Furthermore, stigma has a harmful impact on the lives of surrogate women and is cultivated
75 Feinberg, above n 1, 37, 60.
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by social mores and attitudes which exist in the community environment in which the surrogate women who participated in the studies informing this thesis generally reside.
It is acknowledged that any assessment of whether commercial surrogacy transactions cause harm to Indian surrogate women is subjective. Most women view surrogacy as a way out of their poverty-stricken lifestyles — a ‘survival strategy’.76 Therefore, significant weight was attributed to the financial gains received as a result of the arrangement, particularly as the general intention was to use the money earned to provide basic essentials for her family.
The physical harms that surrogate women may suffer as a result of commonly occurring procedures, such as embryo transfer, multiple pregnancies, foetal reduction and caesarean section, depend upon the quality of the medical treatment they receive, follow-up care and the environment to which the surrogate women return. There is insufficient evidence to conclude that these women have actually suffered harm. The evidence reveals one case of total abortion, one case of temporary paralysis, and one case where a woman required saline infusion following a difficult delivery. However, after taking into account the magnitude and probability of harm, there is sufficient evidence to conclude that surrogate women suffer a definite risk of harm.
Harms associated with stigma are real and serious. There have been reports of women being ostracised and having to relocate to another village. However, there is also evidence that many women develop strategies, some of which are built in to the surrogacy arrangement, such as staying in hostels, to overcome stigma. While these actions reduce actual harm, they are evidence that the risk of harm is real in this context. In addition, the engagement in avoidance tactics could create anxieties and limit the ability of the women to engage in normal social intercourse, which are interests that warrant protection from the harm principle. Therefore, it can be concluded that there is evidence that surrogate women suffer harm caused by stigma and risk of harm caused by stigma, multiple embryo transfer, foetal reduction and caesarean section.
It is a matter for each individual surrogate woman whether or not the benefit of financial gain exceeds the harms and risk of harm she faces. How earnings are managed, whether money is
76 Pande, above n 3, 144.
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spent in the manner predicted, how money impacts on the women’s welfare, and whether the effects of stigma, ostracism or relocation outweigh the financial benefits are questions which require further research. The fact the empirical research suggests that some women repeat their surrogacy experience would suggest that, for these particular women, the benefit of financial gain outweighs any harm or risk of harm they may suffer. However, conditions surrounding coercion must be eliminated to reach such a conclusion and that was not achieved on the evidence. In terms of lived experiences, there is no ‘typical’ surrogate mother; therefore, an assessment of the harm ‘typically’ faced by surrogate women could not be made.
On balance, set-backs and benefits to interests were identified. However, there was insufficient evidence around how the benefits of commercial surrogacy actually impact on the surrogate women’s interests. Although they earn a significant amount of money which increases economic sufficiency and makes the surrounding environment more tolerable, there was no research into the flow-on impacts, such as whether the benefits reduced anxieties and improve emotional stability, physical health and vigour, capacity to engage in social intercourse and friendships. If those interests are affected in a positive way, the overall benefits to the women could, on balance, outweigh the harms. Therefore, this thesis cannot draw a conclusion on the evidence available about whether or not, on balance, commercial surrogacy places Indian surrogate women in a worse position overall than they would have been had the surrogacy arrangements not taken place.
This chapter has drawn together threads from chapters 3, 4 and 5 to determine whether surrogate women are harmed as a result of the exploitative surrogacy arrangements in which they engage. The foundation for this chapter is the conclusion drawn in chapter 5 that some surrogate women are exploited in a manner that is wrong and morally indefensible. The wrongful conduct of exploitation, depicted by the surrogacy arrangements in which the women engaged, has been measured against the framework of Mill’s harm principle, based on empirical and social science evidence unveiled in chapter 5 to conclude that some Indian surrogate women suffer harm and risk of harm as a result of surrogacy arrangements. However, the harms must be weighed against the benefits the commercial surrogacy arrangements provided to the women in order to make a determination of whether, overall, the women are harmed.
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A conclusion that, overall, commercial surrogacy arrangements ‘typically’ harm Indian surrogate women cannot be drawn from the available evidence because the experiences of the women vary significantly. Furthermore, a finding that surrogate women, on balance, suffer harm cannot be made because there is insufficient evidence of the impact of the benefits received by the women. However, a finding that some surrogate women are exposed to actual harm in the form of stigma, and definite risk of harm through multiple embryo transfer, foetal reduction and caesarean section can be made.
G Findings and Conclusions In relation to isolating the interests and identifying the set-backs, this chapter found that the surrogate mothers’ interests that were affected by the surrogacy arrangement were physical health and vigour, absence of excessive pain, absence of anxieties, the capacity to engage in social intercourse, enjoyment and maintenance of friendship, emotional stability, economic sufficiency and the right to exist in a tolerable environment; and the set-backs which had an impact on those interests were caused by preparation for and multiple embryo transfer resulting in multiple pregnancies, foetal reduction and caesarean delivery and stigma.
In relation to those interests that are excluded from the harm principle, this chapter found that there is no typical surrogacy experience, but the empirical evidence revealed that many women did not consent to the terms of the contract they signed or the medical procedures they were required to undergo, such as multiple embryo transfer, foetal reduction and caesarean delivery. Some women engaged in commercial surrogacy on more than one occasion. It must be assumed that these women were aware of the obligations under the surrogacy contract and the medical procedures they would be subjected to. Subject to being coerced to return to surrogacy, it is likely these women consented to the subsequent arrangements. Only the Indian surrogate women who did not consent to the surrogacy transaction or whose consent was defective, can be potentially exploited and harmed within the parameters of this thesis.
This chapter also found that minor harm arising from the preparation of embryo transfer and post-transfer interventions, such as hot flushes, mood swings, headaches, bloating, vaginal spotting, uterine cramping, breast fullness, light headedness and vaginal irritation, are excluded from the harm principle in the context of this thesis because there is insufficient
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evidence to conclude that these symptoms amounted to more than minor harms and hurts. There was one exception of a woman who experienced temporary paralysis, but that is insufficient to consider it a harm to surrogate women generally.
In relation to an assessment of benefits, this chapter found that surrogate women were paid an amount of money that was significantly greater than the income they would ordinarily receive for the same period of time. Some of the women gained health benefits from living in the surrogacy houses or hostels in the form of medical care, nutrition and rest.
In relation to the overall assessment of harm and adopting the test of whether surrogate women are in a worse position than they would have been had the surrogacy arrangements not taken place, this chapter found that the set-backs to interests of some surrogate women would not normally have occurred when considered against a backdrop of their everyday lived experiences. As a result of commercial surrogacy, some of the women are exposed to actual harm from the stigma attaching to the arrangement, and a definite risk of harm due to stigma, multiple embryo transfer, foetal reduction and caesarean section. However, when the benefits received by the surrogate women are taken into account, the calculation of whether, overall, the women are in a worse position than they would have been had the surrogacy arrangements not occurred raised challenges because there is no ‘typical’ experience. A conclusion could not be reached that commercial surrogacy is ‘typically’ harmful.
On balance, it initially appeared that the benefits of economic sufficiency and a tolerable environment were outweighed by the set-backs of physical health and vigour, absence of excessive pain, emotional stability, absence of anxieties, the capacity to engage in social intercourse, enjoyment and maintenance of friendship, economic sufficiency and a tolerable environment. However, due to the nature of the benefits, there might be further benefits to the women depending on the impact of those benefits previously identified. The available evidence could neither confirm nor deny this proposition. There is insufficient evidence to ascertain whether the benefits actually materialise, whether the further benefits occur and, overall, whether the benefits afforded to the surrogate women outweigh the set-backs. Therefore, it cannot be concluded that on balance, commercial surrogacy harmed the Indian surrogate women who participated in the studies informing this thesis.
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In summary, commercial surrogacy does not ‘typically’ harm Indian surrogate women because they are a diverse group with varied needs and experiences. In addition, a conclusion that on balance, commercial surrogacy harms the women could not be drawn due to insufficient evidence of the impact of the benefits commercial surrogacy brings to the lived experiences of Indian surrogate women. Therefore, this thesis could not conclude that the prohibition on commercial surrogacy was justified on the basis of exploitation of surrogate women in India using the framework of Mill’s harm principle and the currently available empirical evidence. However, it could conclude that some women who participated in the studies informing this thesis were exposed to actual harm through stigma and definite risk of harm through multiple embryo transfer, foetal reduction and caesarean section.
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CHAPTER 7: CONCLUSION
I INTRODUCTION
The purpose of this thesis is to contribute to the debate about whether prohibition of commercial surrogacy in Australia on the basis of exploitation is justified. The values and motivations which underpin the legislation prohibiting commercial surrogacy in Australia were explored, problems caused by the prohibition identified, and the value of exploitation of surrogate women isolated for examination. The concept of exploitation was examined and three key concepts that are necessarily present in an exploitative transaction were extracted from the scholarly literature. They are: taking advantage of a vulnerability, a defect in consent and an unfair distribution of benefits. In addition, the harm principle was examined; elements that are relevant to the consideration of harm in the context of commercial surrogacy were dissected so that it could be used as a normative framework against which harm could be assessed. Following this, social science data surrounding the lived experiences of surrogate women in India was analysed and it was established that commercial surrogacy arrangements exploit some of the Indian surrogate women who participated in the studies informing this thesis. Mill’s harm principle was employed as a theoretical framework to find that there is evidence that some of those women were exposed to actual harm and definite risk of harm as a result of exploitative commercial surrogacy arrangements. However, surrogacy is not ‘typically’ harmful because there is significant variation in the individual experiences of surrogate women; and there was insufficient evidence to find that surrogacy is on balance, harmful.
II SIGNIFICANT AND ORIGINAL CONTRIBUTION TO SCHOLARSHIP
This thesis is significant because the continued prohibition of commercial surrogacy in Australia has been the subject of political, judicial and community debate and discussion. Exploitation of surrogate women is a dominant value relied upon by Australian state and territory parliaments to support the continued prohibition of commercial surrogacy yet the
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veracity of the value and therefore the robustness of the legislative framework has not been tested. It is important to establish whether these women have been exploited, and whether, as a result of that exploitation, they are harmed, thereby providing some justification for the prohibition of commercial surrogacy in Australia.
Five original contributions to knowledge were made in this thesis. First, the values and motivations which have and continue to influence the decision to prohibit commercial surrogacy were updated and explored. This is significant because it is important to know and understand why political resistance towards commercial surrogacy continues, despite growing community acceptance of this form of reproductive technology evidenced by community engagement in overseas commercial surrogacy transactions, submissions to parliamentary inquiries, and academic and judicial comment. It is also important to contribute to our understanding of whether the reasons behind the prohibition are justified. The dominant value of preventing the exploitation of surrogate women was the cornerstone value explored.
Second, Mill’s harm principle was analysed and parameters for measurement within the context of commercial surrogacy were identified so that the harm principle could be applied to a backdrop of exploitation of surrogate women in India to determine whether they are harmed. The counterfactual baseline was employed to determine whether the interests of surrogate women were in a worse position than they would have been had the surrogacy transaction not taken place.
Third, there was deep engagement with the concept of exploitation to identify key concepts that are applicable in the context of commercial surrogacy. Exploitation is a commonly used yet immensely complex condition. Meanings attributed to the term vary according to the particular situation and are based on assumption rather than fact. In order to determine whether the prohibition of commercial surrogacy is justified by the argument that it exploits surrogate women, it is essential to understand this value-laden condition. This thesis explored the theories surrounding exploitation and derived common themes from the scholarship to identify three key concepts as being necessarily present in an exploitative transaction: taking advantage of a vulnerability, defective consent, and an unfair distribution of benefits. This provided a strong application of exploitation to enable a determination of whether Indian
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surrogate women are exploited, evidenced by the presence or otherwise of these three key concepts.
Fourth, social science research about the lived experiences of Indian surrogate women was synthesised to determine the nature and extent of exploitation experienced by the women who participated in the studies informing this thesis. This thesis found evidence that commercial surrogacy transactions exploit some surrogate women in India.
Fifth, Mill’s harm principle was employed as a normative framework for critique to find that there is evidence that some Indian surrogate women suffer actual harm and definite risk of harm as a consequence of the exploitative commercial surrogacy arrangements they are engaged in. However, an overall conclusion of harm could not be found due to the lack of available evidence about the benefits realised by the women. The thesis concludes that there is no ‘typical’ surrogate woman and is inconclusive as to whether on balance, commercial surrogacy is harmful to the women who participated in the studies informing this thesis. Nonetheless, it is important because finding that, in some cases, commercial surrogacy transactions are exploitative and that surrogate women are exposed to actual harm and definite risk of harm — but not ‘typically’ or ‘on balance’ harmed — contributes to the debate surrounding the prohibition of commercial surrogacy in Australia, questions whether the prohibition is justified on the basis of exploitation of surrogate women, exposes a need for evidence-based reform and illuminates areas in need of further research.
In addition, multiple bodies of knowledge were synthesised and integrated to conduct this intra-disciplinary critique of commercial surrogacy in the Australian context. The three areas of law, practice, and theory were addressed by exploring primary and secondary legislative material, describing legal and practical problems, analysing social science and empirical research data, and applying the theoretical framework of Mill’s harm principle.
III FINDINGS AND AREAS OF FURTHER RESEARCH
The following findings have been made:
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1. There is evidence that Indian surrogate women are exploited when they engage in commercial surrogacy transactions. This confirms statements made by the Australian Parliament in support of the continued prohibition of commercial surrogacy. 2. There is evidence that Indian surrogate women are exposed to the risk of harm as a result of commercial surrogacy arrangements. 3. There is evidence that Indian surrogate women suffer actual harm as a result of commercial surrogacy arrangements. 4. It could not be concluded that commercial surrogacy ‘typically’ harms Indian surrogate women because they are a diverse cohort with varied needs and experiences. 5. There was insufficient evidence to conclude on balance, Indian surrogate women are harmed.
A Indian Surrogate Women are Exploited Using the three key concepts of taking advantage of a vulnerability, a defect in consent, and an unfair distribution of benefits there is evidence that surrogate women are exploited.
Taking advantage of a vulnerability. The women were situationally vulnerable, evidenced by conditions of poverty and unskilled, low paying jobs. Surrogacy was seen as a solution to their economic problems as they could earn four to seven times their usual wage. Earnings from commercial surrogacy potentially allowed the women to provide their family with basic needs such as food, clothing, improved housing, medical treatment and dowries for their unmarried daughters. Financial gain was the primary motivator for the women to enter into commercial surrogacy arrangements. There was also some specific evidence of familial, cultural and religious coercion within their lived environment.
Surrogate women were also pathogenically vulnerable due to conditions created by the surrogacy clinics such as back-ended payments, lack of rights to the child once delivery had taken place, and little negotiating power surrounding their contract conditions and medical procedures.
There was some evidence that recruiting agents, medical professionals, and intended parents took advantage of these vulnerabilities to gain access to the surrogate mother’s attributes of the ability to conceive, carry and deliver a child. For example, the recruiting agents targeted
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the situational vulnerabilities of women trying to support ill or disabled family members; intended parents took advantage of the loose regulatory schemes in India; and the medical staff retained control over most of the medical decisions involving the surrogate women.
Lack of consent. There was a lack of choice and decision-making power attributed to the women in the context of the contracts they signed, their consent to medical treatment, and the information provided to them by the medical staff about the treatment they were required to undergo. Specifically, the women were not involved in decisions about the number of embryos transferred. Furthermore, they were not advised of the risks associated with multiple embryo transfer and foetal reduction, both of which occurred. There was also evidence of caesarean section deliveries being performed without consultation with the surrogate mother about her preferred mode of delivery.
Unfair distribution of benefits. Finally, it can be concluded that surrogate women received an unfair distribution of the benefits to the surrogacy transaction. First, there was specific evidence of women receiving less remuneration that they were promised or expected. Second, on all accounts, an analysis of the benefits and burdens of the transaction — including burdens associated with the pregnancy and associated medical treatment — revealed that the receipt of money in exchange for carrying, delivering and relinquishing a child was incommensurate. The women were required to endure painful injections in preparation for the transfer of embryos. There were specific cases of hospitalisation due to side effects of the medicine and a total abortion following foetal reduction. Furthermore, there was evidence that there was a social stigma attaching to surrogacy arrangements. Nearly all women hid the surrogacy arrangements from the members of their community and many hid the arrangements from their extended family. On specific occasions, women had been ostracised and forced to leave their villages.
Exploitation concluded. On the basis of the empirical evidence relied upon in this thesis, it is open to conclude that some Indian surrogate women were exploited. They were vulnerable women who had been taken advantage of by others involved in the surrogacy process. The consent they provided to enter into the arrangements and undergo the required medical treatment was compromised and the distribution of benefits and burdens was weighed in favour of the intended parents and against the surrogate women, and was therefore unfair.
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B Indian Surrogate Women Suffer Risk of Harm as a Result of Commercial Surrogacy Arrangements Some harm excluded. All the surrogate women interviewed experienced preparation for embryo transfer and its associated pain and discomfort. However, this was excluded from the parameters of the harm principle because there was insufficient evidence to find these symptoms amounted to a more than a minor harm. Similarly, feelings of loss and emptiness associated with relinquishment of the child were also excluded as being minor, without evidence of serious or long-term psychological damage.
Risk of harm and harm. It was more likely than not that the women interviewed reported experiences of multiple embryo transfer, foetal reduction and caesarean section delivery. These procedures carry risks that were not explained to the surrogate women. Surrogate women also reported a concern about the stigma which attached to surrogacy and the impact this had on their lived experiences. Tactics were adopted to alleviate the likelihood of harm resulting from stigma. These included living in the surrogacy hostel accommodation during the period of confinement and hiding or lying about their pregnancy,
Set-backs. The set-backs which were at risk of resulting from multiple embryo transfer, foetal reduction and caesarean section delivery included premature rupture of membranes, gestational hypertension and gestational diabetes mellitus, total abortion, infection of the wound, endometriosis, thrombosis in the legs, excess bleeding and damage to the bladder and ureter. Those which could have resulted from stigma include chronic physiological stress responses, ostracism, and relocation.
Interests affected. The interests at risk of being affected by these set-backs included physical health and vigour, absence of pain, emotional stability, absence of anxieties and the capacity to engage in social intercourse, employment and maintenance of friendship, economic sufficiency, and maintaining a tolerable environment. Taking into account the prevailing standards to which the Indian surrogate mother was normally exposed, it was concluded that these interests would be in a worse condition if the set-backs occur than they would have been had the set-backs not occurred.
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C Indian Surrogate Women Suffer Actual Harm as a Result of Commercial Surrogacy Arrangements There was evidence of actual harm being suffered by surrogate women. There was one reported case of total abortion following foetal reduction. There were also ad-hoc reports of families being ostracised and having to relocate due to a negative community reaction to the surrogacy arrangements. These were actual harms which affected the interests of physical health and vigour, emotional stability, absence of anxieties and the capacity to engage in social intercourse, employment and maintenance of friendship, economic sufficiency and maintaining a tolerable environment. However, the set-backs had to be measured against the benefits that the surrogate women received as a result of the surrogacy arrangement.
Benefits. Benefits associated with the payments received by the surrogate women were considered. These included earning significantly more income than otherwise possible, paying for family needs, and health benefits associated with hostel living. The interests affected were economic sufficiency and maintenance of a tolerable environment, but other interests could also have been affected.
Harm versus benefits. Whether or not the harm and risk of harm was outweighed by the benefits associated with the surrogacy arrangements could not be determined for three reasons. First, there was no ‘typical’ surrogate mother and the experiences of the women differed so that there was no ‘typical’ experience. Second, there was insufficient evidence to determine whether the money earned by the women was used to achieve their targeted goals and whether their health was sufficiently improved. Third, there was insufficient evidence about the reasons as to why the women returned to engage in surrogacy for a second or third time.
D Conclusion about Whether this Thesis Supports an Argument that Commercial Surrogacy Should be Prohibited This thesis has established there is evidence that commercial surrogacy exploits some Indian surrogate women thereby reiterating one of the cornerstone values underlying its prohibition. However, exploitation is a complex condition, and not all exploitation causes harm to the parties who are subjected to it.
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Adopting Mill’s harm principle, the only purpose for which the state can interfere in the conduct of a person is to prevent harm to others. Placed in the context of this thesis, pathways for Australian intended parents to engage in commercial surrogacy should only be interrupted if the arrangements cause harm to others. ‘Others’ in the context of this thesis refers to Indian surrogate women. Therefore, a finding that Indian surrogate women are harmed as result of commercial surrogacy arrangements would provide support for the debate that commercial surrogacy should be prohibited.
This thesis has not established that commercial surrogacy causes harm or risk of harm to surrogate women either ‘typically’ or ‘on balance’; therefore, it does not provide support for the argument that commercial surrogacy should be prohibited on the basis of Mill’s harm principle. Neither has it established that Indian commercial surrogate women do not suffer harm; however, that is not relevant to Mill’s harm principle which espouses that there should be no interference in a person’s conduct unless such conduct causes harm.
However, it has been established that some Indian surrogate women are exposed to actual harm and definite risk of harm. This is an important finding and influences considerations surrounding the future regulation of commercial surrogacy in Australia in a number of ways.
First, having found that commercial surrogacy exploits and exposes some women to actual and definite risk to harm, this thesis elucidates the impact of prohibiting commercial surrogacy in Australia. Rather than preventing exploitation, there is evidence provided by this thesis that the prohibition of commercial surrogacy facilitates the exploitation of some surrogate women, with further evidence of exposure to harm and risk to harm to those women exploited. Stuhmcke argues that the current legislative framework prohibiting and criminalising commercial surrogacy ‘extends far beyond (it’s) lack of practical implementation, creating a class of deviance and encouraging Australians to use offshore commercial surrogacy’.1 This thesis adds to that argument by providing evidence that commercial surrogacy exploits Indian surrogate women. Combining Stuhmcke’s argument
1 Anita Stuhmcke, ‘The Regulation of Commercial Surrogacy: The Wrong Answers to the Wrong Questions’ (2015) 23 Journal of Law and Medicine 333 cites Sam Everingham, Martyn Stafford-Bell and Karin Hammarberg, ‘Australia’s Use of Surrogacy’(2014) 21(5) Medical Journal of Australia 1.
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with the findings of his thesis suggests that the prohibition of commercial surrogacy in Australia encourages intended parents to engage in the practice offshore. India has proved a popular surrogacy destination for these parents where there is evidence that some surrogate women are exploited and exposed to actual and definite risk of harm.
Secondly, the findings of this thesis indicate that exploitation of surrogate women is not a justifiable basis for total prohibition of commercial surrogacy or for the practice to be unregulated. The findings reveal that appropriate regulation of commercial surrogacy is necessary in India to promote and protect a variety of interests including the rights of women in India to make the procreative choice to engage in commercial surrogacy arrangements safely, fearlessly and free from exploitation; and to protect the procreative rights of those intended parents who engage in commercial surrogacy to do so without causing harm or definite risk of harm to others. This can translate to Australian state and territory parliaments to inform evidence-based reform to create a regulatory framework, more sophisticated than the current blanket prohibition and one that protects the interests of the parties involved, in particular, those of surrogate women.
Finally this thesis identifies the challenges in applying Mill’s harm principle to the context of commercial surrogacy using qualitative research. The subjective nature of commercial surrogacy, the diverse backgrounds of the surrogate women and the varied impact it has on each individual makes an overall conclusion problematic. Applied in this context, the theory is limited to addressing specific findings of harm. In addition it has been argued that the utilitarian nature of Mill’s theory ‘would permit grave injustice in pursuit of general happiness’2 thereby providing justification for the pursuit of surrogacy in an environment of inequality.
See Appendix 5 for an overview of the research questions, methodology, sources, substantial contributions to knowledge, and key findings of this thesis.
2 Sheela Saravanan, ‘Global Justice, Capabilities Approach and Commercial Surrogacy in India’ (2015) 18 Medical Health Care and Philosophy 298.
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E Areas of Further Research Surrogate women are exposed to harm and risk of harm but, due to lack of evidence, whether they suffered harm on balance was unable to be established. This is an important finding for two reasons. It adds to the debate about the continued prohibition (or otherwise) of commercial surrogacy in Australia as outlined above in 7.5.4, and it identifies a need for further necessary research.
The reasons and circumstances under which the surrogate women return a second and third time to engage in commercial surrogacy requires investigation. Specifically, it should be ascertained if the women return for the benefits received as a result of the surrogacy arrangement, because they are coerced by others or through financial desperation.
Further research into the economic circumstances of the surrogate women and their families before and following their engagement in commercial surrogacy is required in order to determine whether the money earned by the women has been attributed to the needs predicted in their interviews, and whether the impact on their affected interests is positive. Similarly, research into their physical well-being post-relinquishment is also required in order to ascertain whether the financial rewards outweigh the physical risks of harm. This is a highly subjective assessment and one that can only be determined by the individual women. It is only with the input of this further information that an overall assessment can be made as to whether surrogate women are worse off than they would have been had the commercial surrogacy arrangements not taken place.
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APPENDIX 1: OUTLINE OF RESEARCH STUDIES
Author Year Area Participants Research Questions Method Findings Amrita Pande 2006/07 Gujarat 42 surrogate women and How is surrogacy Participation and Indian surrogate their families, 12 perceived by others? observation. women are intended parents, stigmatised. The 3doctors and 3 brokers. How do surrogate women Oral histories taken women developed deal with those of participants. methods to overcome perceptions? the stigma.
Sharvari Karandikar, 2012 Anand, Gujarat 15 surrogate women. What are the motivations Semi-structured Majority of surrogate Lindsay B. Gezinski, James R for becoming a surrogate interviews using an women were from low Carter and Marissa Kaloga mother? interview guide socio-economic containing backgrounds with little What is the role of the demographic or no formal family and community? questions and education. additional questions Their primary about motivation. motivation was financial compensation.
Sheela Saravanan 2009/10 West India 13 surrogate women, 4 What are the characteristics Semi-structured All surrogate women intended parents, and 2 and experiences of interviews, faced economic doctors. surrogate women in the discussions, difficulties in the contexts of recruitment, participant home. medical procedures, observation and Occurrence of surrogate homes, bonding explanation. undesirable medical and financial dealings? practices such as multiple embryo transfer and selective foetal reduction.
Malene Tanderup, Sunita 2011/12 National Capital 14 surrogate mothers, 20 Exploration of autonomy, Mixed method study Surrogate women Reddy, Tulsi Patel and Territory of doctors, 5 agents. informed consent and of observation, were inadequately Birgitte Bruun Neilsen Delhi decision-making in the interview guide informed. areas of embryo transfer, combining structured Most clinical decisions foetal reduction and mode and open-ended were made by medical
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Author Year Area Participants Research Questions Method Findings of delivery. questions and semi- staff. structured interviews. Kalindi Vora 2008 North Not stated What are the potential risks Interviews and Surrogate women India associated with the social observations. worked towards a and economic inequalities? connection to the What is the meaning intended parents that surrogate women attribute could offer them long- to their relationship with term benefit, although the intended parents? there was little Is that relationship real or evidence this was imagined? realised. There was evidence of the surrogate women longing for an ongoing connection with the child.
Munjal-Shankar 2014 Gujarat 8 surrogate women To understand and explore In-depth interviews. Most surrogate women the legal and bioethical kept their surrogacy challenges in ensuring a arrangements a secret fair environment for from their relatives for surrogate mothers involved fear of stigmatisation. in surrogacy arrangements. All except one surrogate were unhappy with hostel food. Clinic did not encourage intended parents to keep in touch with the surrogate mother.
Centre for Social Research Undated Delhi, Mumbai, 200 surrogate women and Conduct a situational Surveys using Findings are clear and Anand, 100 intended parents. analysis of surrogacy cases. structured provide information Surat, Jamnagar Examine existing social questionnaires about age, religion, and health protection rights interviews and focus marital status,
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Author Year Area Participants Research Questions Method Findings ensured to the surrogate groups. education, mother. employment, income, Analyse the rights of the family structure, child in surrogacy children, previous arrangements. surrogacies, housing, Study the rights and issues the surrogacy contract, pertaining to intended compensation, contact parents. with intended parents, Suggest policy place of stay during recommendations for surrogacy and protection of rights through emotional responses to legal provisions of the surrogacy surrogate mother, child and experience. the intended parents. Sama Dec 2011 – Delhi and 12 surrogate women, 5 How do surrogates Interviews. Findings are clear and April 2012 Punjab doctors, 2 agents and 1 perceive surrogacy? How provide information intended parent do they look at their about the surrogates’ motivations and the profile, including implications of such class, caste, religion, arrangements? marital status, age, How is the use of the body income, work history, in surrogacy being motivation, imagined and contested? recruitment, medical What does this represent? practices, How has medical practice relinquishment, evolved? What protocols, remuneration, public guidelines and standard are perceptions and being followed as far as the stigma. surrogate is concerned? What accounts for the Themes and trends are vulnerability of the identified. surrogate?
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APPENDIX 2: CASP RIGOUR OF DATA ANALYSIS
Researcher Clear Qualitative Research Recruitment Data Relationship Ethical Rigour Clear Value of statement methodology design strategy collection between issues of data statement research of aims addressed researcher considered analysis of research and findings issues participants SAMA Yes Yes Yes Yes Yes No Yes Yes Yes Yes
TANDERUP Yes Yes Can’t Tell Yes Yes Can’t Tell Yes Yes Yes Yes
KARANDIKAR Yes Yes Can’t Tell Can’t Tell Yes Can’t Tell Yes Yes Yes Yes
SARAVANAN Yes Yes Yes No Can’t Tell Can’t Tell Yes No Yes Yes
CSR Yes Yes No Yes No Yes No Can’t Yes Yes Tell
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Researcher Clear Qualitative Research Recruitment Data Relationship Ethical Rigour Clear Value of statement methodology design strategy collection between issues of data statement research of aims addressed researcher considered analysis of research and findings issues participants PANDE Yes Yes Can’t Tell Can’t Tell Yes No Can’t Tell Can’t No Yes Tell
RUDRAPPA Yes Yes No No Can’t Tell No No No Yes Yes
VORA Yes Yes No No No No No No Yes Yes
MUNJAL- No Yes No Limited Can’t Tell No Yes No No No SHANKAR
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APPENDIX 3: STRENGTHS AND WEAKNESSES OF EMPIRICAL STUDIES
Strengths Weaknesses Variables Relevance Centre for Statistical findings Rated as average in Large sample Provides relevant general Social Some commentary the CASP (6). size (200) statistical data on a broad Research May not be objective range of topics (see Appendix 1)
Sama Rated highest in the May not be objective Small-medium Provides relevant general CASP (9). sample size statistical data on a broad Provides anecdotal (12) range of topics (see responses from Appendix 1) participants as well as some statistical information
Pande Provides anecdotal Rated low in the Medium Explores lived experiences responses from CASP (4). sample size of surrogate women participants Does not provide (42) Good discussion of sufficient numerical vulnerability and detail. For example, stigmatisation as of the 42 women experienced by those interviewed there is women whose narratives little indication of are recorded how many from this cohort possess a particular characteristic or adopt a particular strategy
Karandikar Rated as average to Little information Small-medium Explores the motivations high in the CASP (7). about information sample size for and role of family and Provides anecdotal surrounding core (15) community in surrogacy responses from medical conditions Good discussion of participants and vulnerability, the statistical information voluntariness aspect of about the number of consent, and stigmatisation participants that possess a particular characteristic or adopt a particular strategy
Saravanan Provides anecdotal Rated as average in Small-medium Explores exploitation in the responses from the CASP (6). sample size context of trust, power and participants and Little information (13) experiences Statistical information about information Good discussion of about the number of surrounding core vulnerability participants that medical conditions possess a particular characteristic or adopt a particular strategy
Tanderup Rated high in the Little information Small-medium Good information about the CASP (8) about the non- sample size information surrounding
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Strengths Weaknesses Variables Relevance Provides anecdotal medical aspects of (14) core medical conditions responses from consent such as aspect of consent participants and coercion or lack of statistical information acceptable about the number of alternatives participants that possess a particular characteristic or adopt a particular strategy
Rudrappa Provides anecdotal Rated low in the Sample size Explores the lived responses from CASP (4) although indicated (70) experiences of surrogate participants the information was but not women and their relevant to this thesis reflected relationships with other participants in the transaction
Vora Rated low in the Sample size This research explores CASP (4). While the unclear interrelationships within information that was the surrogacy context relevant to this thesis generally, rather than was useful, it was focussing on the limited in amount experiences of surrogate women specifically Munjal- Rated lowest in the Small sample This research focusses on Shankar CASP (2). While the size (8) the social context of Indian information that was surrogate women and the relevant to this thesis issues they face was useful, it was limited in amount
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APPENDIX 4: SURROGACY COSTS AND EARNINGS
Average Surrogate Ratio surrogate Total Surrogate Total family earnings earnings/family surrogacy earnings surrogacy income per (USD) income costs India United costs month (USD) States United (USD) (USD) States (USD) Pande $60 $3,000– 4-7 years’ $20,000 n.a. $30,000 - (2006-2007) Rs2,500 $5,000 income $70,000
Saravanan $45-$90 $3,725 20 years’ income $21,000 n.a. n.a. (2009-2010) Rs3,000- Rs250,000 Rs1,400,000 6,000
Karandikar Not $3,000– n.a. n.a. n.a. $100,000 (2012) mentioned $5,000 $4–6,000 twins Tanderup $75–200 n.a. n.a. $19,255 n.a. n.a. (2012) Rs5,000– Rs1,400,000 13,000
Vora n.a. $6,000– 9 years’ income $20,000 1 n.a. $100,000 2 (2008) $7,000
Centre for $18–$54 $3,600– 6-32 years’ $10,000– $59,000– n.a. Surrogacy $7,100 income $35,0003 $80,0004 Research Sama $55–$270 $1,980- 2-3 (one at 0.7 n.a. n.a. n.a. $6,660 was exception)
1 Kalindi Vora, ‘Indian Transnational Surrogacy and the Commodification of Vital Energy’ (2009) 28 Subjectivity 266, 270. 2 Ibid. 3 Centre for Social Research, ‘Surrogate Motherhood Ethical or Commercial’ (Final Report) (undated) 36, refers to Sharma, 2008. 4 Ibid.
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APPENDIX 5: RESEARCH QUESTIONS, RESOURCE, SEARCH TERMS, METHODOLOGIES, SOURCES, ORIGINAL AND SUBSTANTIAL CONTRIBUTIONS TO KNOWLEDGE, AND KEY FINDINGS
Research Question Resource and Search terms Methodology Finding RQ 1: Resource: Doctrinal research and analysis of state 1. Commercial surrogacy is prohibited in 1. Legislation and territory legislation governing all Australian states and the ACT. What is the law relating to 2. Common law commercial surrogacy in Australia 2. There is extra-territorial prohibition of commercial surrogacy in the Search terms: commercial surrogacy in Queensland, Australian jurisdictions? commercial surrogacy; surrogacy; Sources: New South Wales and the ACT. surrogate mother; surrogacy Austlii, LexisNexis AU, Westlaw AU, 3. What constitutes an offence and how it legislation LawOne, LexisNexis Advance Pacific is perpetrated varies. 4. Behaviour that is legal in one jurisdiction could be illegal in another.
RQ 2: Resource: Doctrinal research and analysis of 1. There are legal problems for intended 1. Legislation commonwealth, state and territory parents obtaining legal parentage. What are the legal and 2. Common law legislation, publicly available common 2. There are practical problems because practical problems that are 3. Secondary material law decisions and secondary legal legal parentage cannot be transferred. presented by the legislative material 3. There are legal problems obtaining prohibition on commercial Search Terms: citizenship. surrogacy in the Australian surrogacy, surrogate mother, Sources 4. There are practical problems if the child jurisdictions? commercial surrogacy; surrogacy AGIS, Austlii, Lexis Nexis AU, LawOne, is unable to exist India or is left ‘stateless’. AND India; intended parents AND Lexis Advance Pacific 5. There are legal problems about who is India; commercial surrogacy AND registered as the child’s parents on the citizenship birth certificate which have caused uncertainties and delays.
RQ 3: Resource: Doctrinal research and analysis of 1. Exploitation of surrogate women is an 1. Common law secondary legal material overriding value driving law and policy What are the policies and 2. Secondary material about commercial surrogacy in Australia. values underpinning the Sources 2. Exploitation of surrogate women is a legislative prohibition on Search Terms: AGIS, Austlii, LexisNexis AU, Westlaw current and dominant value relied upon by commercial surrogacy in the surrogacy; surrogate mother; AU LawOne, Lexis Advance Pacific Australian state and territory parliaments Australian jurisdictions? commercial surrogacy; family law for the legislative prohibition on
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Research Question Resource and Search terms Methodology Finding AND surrogacy; law reform AND commercial surrogacy in Australia. surrogacy RQ 4: Resource: Doctrinal research and analysis of primary Findings 1. Primary material material and secondary social science 1. Interests of the surrogate mother are What is John Stuart Mill’s 2. Secondary material material. measured against the standards of her lived harm principle? experiences. Search Terms: 2. Feinberg’s setting back of an interest so harm theory; Mill’s harm principle; that it is in a worse condition than it was J.S. Mill AND harm; On Liberty; prior to the setback occurring is adopted harm AND liberty; ethics AND Sources for the purpose of determining whether an harm; harm AND surrogacy; CINAHL, Academic Search Elite, Sage interest has been harmed. reproductive technology AND harm; Journals, Science Direct, Scopus 3. Harm includes risk of harm harm theory AND reproduction 4. Whether or not surrogate women are harmed is measured using a counter factual baseline; that is, whether they are rendered worse off than she would have been had the commercial surrogacy arrangement not taken place.
RQ 5: Resource: Doctrinal research and analysis of 1. Exploitation is an essentially contested 1. Secondary material secondary social science material. concept What is “exploitation” 2. Grey literature 2. Theories indicate there are three key generally; what are its core Sources concepts around which there is sufficient features for operational Search Terms: CINAHL, Academic Search Elite, Sage consensus to create an understanding of purposes; and how can it be exploitation; exploitation AND Journals, Science Direct, Scopus, Google the condition of exploitation. understood in the specific ethics; exploitation AND surrogacy; Scholar 3. Exploitation can be operationalized as context of commercial exploitation AND India; exploitation including taking advantage of a surrogacy? AND reproduction; exploitation vulnerability, defective consent and an AND consent; exploitation AND unfair distribution of benefits. coercion 4. Analysis of the exploitation condition reveals it is not always pejorative, so does not always justify prohibition. Adopting Mill’s harm principle and finding that exploitation is harmful would support prohibiting the exploitative behaviour.
RQ 6: Resource: Doctrinal synthesis and analysis of Findings
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Research Question Resource and Search terms Methodology Finding 1. Primary material primary qualitative studies and secondary 1. Findings in this thesis do not apply to Is there evidence of 2. Secondary material social science material and grey literature. surrogate women generally, as the studies commercial surrogate women relied upon are qualitative in nature and in India experiencing Search Terms: Sources the thesis findings only apply to the exploitation? India AND census; India and CINAHL, Academic Search Elite, Sage women who participated in the studies that statistics; India AND health; India Journals, Science Direct, Scopus, Google informed this thesis. AND culture; India AND gender Scholar, and grey literature 2. Some Indian surrogate women are both AND exploitation; India AND situationally and pathogenically commercial surrogacy AND ethics; vulnerable. surrogacy AND exploitation; 3. Some surrogacy brokers, intended commercial surrogacy AND parents and medical staff take advantage informed consent; commercial of some Indian surrogate women. surrogacy AND decision-making; 3. Consent provided by some Indian surrogacy AND empirical research; surrogate women is defective because they commercial surrogacy AND are provided with insufficient information. vulnerability 4. There is an unfair distribution of benefit against some Indian surrogate women 5. There is evidence that some Indian surrogate women are exploited
RQ 7 Analysis and synthesis of research 1. Interests of some Indian surrogate findings women that are affected are physical What does Mill’s harm health and vigour, absence of excessive principle, together with an Sources pain, absence of anxieties, the capacity to understanding of the nature Chapters 4, 5 and 6 of this thesis engage in social intercourse, enjoyment of exploitation, and of the and maintenance of friendship, emotional lived experiences of stability, economic stability and the right commercial surrogate women to a tolerable environment. in India, reveal / indicate 2. Set-backs are caused by preparation for about their experience of and multiple embryo transfer, multiple harm? pregnancies, foetal reduction, caesarean delivery and stigma 3. Surrogate women who freely engaged in surrogacy on more than one occasion and those who suffered minor harms caused by preparation of embryo transfer and post transfer interventions were not harmed
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Research Question Resource and Search terms Methodology Finding within the context of this thesis. 4. Benefits afforded include a significant increase in income and health benefits including medical care, nutrition and rest. 6. When the benefits are taken into account, there is no ‘typical’ surrogacy experience because surrogate women are a diverse cohort. Many experiences occurred on an infrequent basis only. 7. There is insufficient evidence about the impact of benefits afforded to Indian surrogate women to conclude on balance, commercial surrogacy harms Indian surrogate women on the basis of Mill’s harm principle, or that, on balance, it harms those Indian surrogate women who participated in the studies informing this thesis. 9. A conclusion can be drawn that Indian surrogate women who participated in the studies informing this thesis are exposed to actual harm through stigma and definite risk of harm through stigma, multiple embryo transfer, foetal reduction and caesarean section.
The original and substantial contributions to knowledge made by this Findings and implications thesis are:
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1. Identification and analysis of the policy, values and motivations that 1. A dominant value underlying and justifying the prohibition on commercial influenced the legislative prohibition on commercial surrogacy. surrogacy in Australia is that commercial surrogacy exploits surrogate women.
2. Analysis and application of Mill’s harm principle in the context of 2. There is some evidence that commercial surrogacy exploits some Indian exploitation of surrogate women in India surrogate women.
3. Conceptual analysis of exploitation and identification of features of this 3. There is evidence that some Indian surrogate women are exposed to actual concept that are relevant to the context of commercial surrogacy harm and definite risk of harm.
4. Synthesis of social science research concerning the nature and extent of 4. It could not be concluded that commercial surrogacy ‘typically’ harms Indian exploitation in the lived experiences of surrogate women in India surrogate women because they are a diverse cohort with varied needs and experiences. 5. Employment of Mill’s harm principle, together with the conceptual and social science analysis of exploitation, as a normative framework for critical 5. There is insufficient evidence to conclude that, on balance commercial examination of whether Indian surrogate women are harmed by commercial surrogacy is harmful. surrogacy transactions thereby adding to the debate surrounding the justifiability of the legislative prohibition in Australia.
6. Synthesis and integration of multiple bodies of knowledge employing the three areas of law, practice and theory, to conduct an intra-disciplinary critique of commercial surrogacy in the Australian context.
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BIBLIOGRAPHY
A Journal Articles/Books Abrams, Paula, ‘The Bad Mother: Stigma, Abortion and Surrogacy’ (2015) 43(2) Journal of Law, Medicine & Ethics 179
Agnafors, Marcus, ‘The Harm Argument Against Surrogacy Revisited: Two Versions Not to Forget’ (2014) 17 Med Health Care and Philos. 357
Alghrani Amel and John Harris, ‘Reproductive Liberty: Should the Foundation of Families be Regulated?’ (2006) 18(2) Child and Family Law Quarterly 191
Anschutz, RP, The Philosophy of J.S Mill (Clarendon Press, 1953)
Bailey Alison, ‘Reconceiving Surrogacy: Toward a Reproductive Justice Account of Indian Surrogacy’ (2011) 26(4) Hypatia 715
Ballantyne, Angela, ‘Exploitation in Cross-Border Reproductive Care’ (2014) 7(2) International Journal of Feminist Approaches to Bioethics 75
Ballantyne, A, ‘Exploitation’ in Ruth Chadwick (ed) Encyclopaedia of Applied Ethics (Elsevier, 2nd ed, 2012) 264
Banerjee, Amrita ‘Race and a Transnational Reproductive Caste System: Indian Transnational Surrogacy’ (2014) 29(1) Hypatia 113
Barker, Ernest, Principles of Social and Political Theory (The Clarendon Press, 1951)
Bassan, Sharon, ‘Context Matters! Who Terms of Transaction as Well as Autonomy Should Be Analysed in the Context of Low-Income Countries’ (2014) 14(5) The American Journal of Bioethics 48
Baviskar, BS and Rulsi Patel (eds), Understanding Indian Society Past and Present (Orient BlackSwan Private Limited, 2010)
Berlin, Isaiah, ‘John Stuart Mill and the Ends of Life’ in John Gray and G W Smith (eds), J.S. Mill On Liberty in Focus (Routledge, 1991) 131
Bhattacharya, Prabir C, ‘Economic Development, Gender Inequality and Demographic Outcomes: Evidence from India’ (2006) 32(2) Population and Development Review 263
Blyth, Eric, ‘“I wanted to be interesting. I wanted to be able to say ‘I’ve done something interesting with my life’”: Interviews with Surrogate Mothers in Britain’ (1994) 12(3) Journal of Reproductive and Infant Psychology 189
Bosanquet, Bernard, Philosophical Theory of the State (Macmillan & Co Ltd, 1920)
364
Bromfield Fiona and Karen Smith Rotabi, ‘Global Surrogacy, Exploitation, Human Rights and International Private Law: A Pragmatic Stance and Policy Recommendations’ (2014) Global Social Welfare DOI 10.1007/s40609-014-0019-4
Brown, Catherine, ‘The Queensland Investigation into the Decriminalisation of Altruistic Surrogacy’ (2008) 29 Qld Lawyer 78
Cattapan, Alana, ‘Risky business: Surrogacy, Egg Donation and the Politics of Exploitation’ (2014) Canadian Journal of Law and Society 361
Charlesworth, Max, Bioethics in a Liberal Society (Cambridge University Press, 1993)
Choudhury, Cyra Akila, ‘The Political Economy and Legal Regulation of Transnational Commercial Surrogate Labor’ (2015) 48 Vanderbilt Journal of Transnational Law 1
Cicarelli J C and L J Beckman, ‘Navigating Rough Waters: an overview of psychological aspects of surrogacy (2005) 61(1) Journal of Social Issues 21
Clifford, Bob, ‘Dalit Rights are Human Rights: Caste Discrimination, International Activism, and the Construction of a New Human Rights Issue’ (2007) 29 Human Rights Quarterly 167
Cohen, I Glenn, Patients with Passports (Oxford University Press, 2015)
Cook, Rebecca J and Bernard M Dickens, ‘Reducing Stigma in Reproductive Health’ (2014) 125(1) International Journal of Gynecology and Obstetrics 89
Crozier, G D K, ‘Too Blunt a Tool: A Case for Subsuming Analyses of Exploitation in Transnational Gestational surrogacy under a Justice or Human Rights Framework’ (2014) 41(5) The American Journal of Bioethics 38
Diekema, Douglas, ‘Parental Refusals of Medical Treatment: The Harm Principle as Threshold for State Intervention (2004) 25 Theoretical Medicine 243
Dripps, Donald A, ‘The Liberal Critique of the Harm Principle’ (1998) 17(2) Criminal Justice Ethics 3
Edelmann R, ‘Surrogacy: The Psychological Issues’ (2004) 22(2) Journal of Reproductive and Infant Psychology 123
Ekberg, Merryn Elizabeth, ‘Ethical, Legal and Social Issues to Consider When Designing A Surrogacy Law’ (2014) Journal of Law and Medicine 728
Epstein, Richard A, ‘The Harm Principle and How it Grew’ (1995) 45 University of Toronto Law Journal 369
Feinberg, Joel, Harm to Others: The Moral Limits of the Criminal Law (Oxford University Press, 1984)
365
Feinberg, Joel, Harmless Wrong-doing: The Moral Limits of the Criminal Law (Volume 4) (Oxford University Press, 1990)
Feinberg, Joel, ‘Wrongful Life and the Counterfactual element in Harming’ (1986) 4(1) Social Philosophy and Policy 145
Ganguly, Debjani, ‘Pain, Personhood and the Collective: Dalit Life Narratives’ (2009) 33 Asian Studies Review 429
Gavaghan, Colin, ‘Deregulating the Genetic Supermarket: Preimplantation Screening, Future People, and the Harm Principle (2000) 9 Cambridge Quarterly of Healthcare Ethics 242
Gray, John and G W Smith (eds), J.S. Mill on Liberty in Focus (Routledge 1991)
Gupta, Jyotsna Agnihotri, ‘Exploring Indian Women’s Reproductive Decision-Making Regarding Prenatal Testing’ (2010) 12(2) Culture Health and Sexuality: An International Journal for Research, Intervention and Care 191
Hammarberg, Karin, Martyn Stafford-Bell and Sam Everingham, ‘Intended parents’ Motivations and Information and Support Needs when Seeking Extraterritorial Compensated Surrogacy’ (2015) Reproductive BioMedicine Online 689, 691
Hart, H L A and A M Honoré, ‘Causation in the Law’ (1956) Law Quarterly Review 72
Hohman, Melinda M and Christine B Hagan, ‘Satisfaction with Surrogate Mothering, (2001) 4(1) Journal of Human Behaviour in the Social Environment 61
Holtug, Nils ‘The Harm Principle’ (2002) 5 Ethical Theory and Moral Practice 357
Humbyrd, Casey, ‘Fair Trade International Surrogacy’ (2009) 9(3) Development World Bioethics 111
Imrie, Susan, Vasanti Jadva, ‘The Long-Term Experiences of Surrogates: Relationships and Contact with Surrogacy Families in Genetic and Gestational Surrogacy Arrangements’ (2014) 29 Reproductive BioMedicine Online 424
Jackson, Emily, Jenni Millbank, Isabel Karpin and Anita Stuhmcke, ‘Learning from Cross- Border Reproduction’ (2017) 25(1) Medical Law Review 23
Jadva, V, S Imrie and S Golombok, ‘Surrogate Mothers 10 Year on: A Longitudinal Study of Psychological Well-Being and Relationships with the Parents and Child, (2014) 30(2) Human Reproduction 373
Jadva, Vasanti, Clare Murray, Emma Lycett, Fiona MacCallum and Susan Golombok, ‘Surrogacy: The Experiences of Surrogate Mothers’ (2003) 18(10) Human Reproduction 2196
366
Jaiswal, Sreeja, ‘Commercial Surrogacy in India: An Ethical Assessment of Existing Legal Scenario from the Perspective of Women’s Autonomy and Reproductive Rights (2012) 16 (1) Gender, Technology and Development 1.
Jansen, Lynn A and Steven Wall, ‘Rethinking Exploitation: A Process-Centred Account’ (2013) 23(4) Kennedy Institute of Ethics Journal 381
Johnson, Louise, Eric Blyth et al, ‘Barriers for Domestic Surrogacy and Challenges of Transnational Surrogacy in the Context of Australians Undertaking Surrogacy in India’ (2014) Journal of Law and Medicine 136
Laufer-Ukeles, Pamela ‘Mothering for Money: Regulating Commercial Surrogacy’ (2013) 88 Indiana Law Journal 1223
Johnson, Tammy, ‘Queensland’s proposed surrogacy legislation: an opportunity for national reform’ (2010) 17 Journal of Law and Medicine 617
Keyes, Mary ‘Cross-border Surrogacy Agreements’ (2010) 26 Australian Journal of Family Law 28
Keyes, Mary and Richard Chisolm, ‘Commercial Surrogacy – Some Troubling Family Law Issues’ (2013) 27 Australian Journal of Family Law 105
Karandikar, S, Lindsay B Gezinski, James R Carter and Marissa Kaloga, ‘Economic Necessity or Noble Cause? A Qualitative Study Exploring Motivations for Gestational Surrogacy in Gujarat, India’ 29 Affilia: Journal of Women and Social Work 224
Kirby, Jeffrey ‘Transnational Gestational Surrogacy: Does it Have to be Exploitative?’ (2014) 14(5) American Journal of Bioethics 24
Kirby, Jeffrey ‘Engaging with a Peer-Proposed, Additional Exploitation Condition: Response to Open Peer Commentaries on ‘Transnational Gestational Surrogacy: Does it Have to Be Exploitative?’ (2014) 14(5) American Journal of Bioethics DOI: 10.1080/15265161.2014.901806
Knoche, Jonathan W, ‘Health Concerns and Ethical Considerations Regarding International Surrogacy’ (2014) 126 International Journal of Gynaecology and Obstetrics 183
Linklater, Andrew ‘The Harm Principle and Global Ethics’ (2006) 20(3) Global Society 329
Lundin Susanne, Charlotte Krolokke, Michael N Petersen, and Elmi Muller (eds) Global Bodies in Grey Zones: Health, Hope, Biotechnology (SUN MeDIA Stellenbosch under SUN PRESS, 2016)
MacCallum, Fiona, Emma Lycett, Clare Murray, Vasanti Jadva, Susan Golombok, ‘Surrogacy: The Experience of Commissioning Couples’ (2003) 18(6) Human Reproduction 1334
367
Macer, Darryl,’ Ethical Conditions for Transnational Gestational Surrogacy in Asia’ (2014) 14(5) The American Journal of Bioethics 1
MacIver, R M, The Modern State (Oxford University Press, 1926)
Manor, James, ‘After Fifty Years of Political and Social Change: Caste Associations and Politics in India’ (2012) 85(2) Pacific Affairs 355
McCrossin, J, ‘Babies without Borders’ (2015) 2(2) Law Society Journal 40
Mill, John Stuart, ‘On Liberty’ in Albert William Levi (ed), The Six Great Humanistic Essays of John Stuart Mill (Washington Square Press, 1963)
Millbank, Jenni ‘De Facto Relationships, Same-Sex and Surrogate Parents: Exploring the Scope and Effects of the 2008 Federal Relationship reforms’ 23(3) Australian Journal of Family Law 160
Millbank, Jenni ‘The New Surrogacy Parentage Laws in Australia: Cautious Regulation or “25 Brick Walls”?’ [2011] 35 Melbourne University Law Review 165
Millbank, Jenni, ‘Rethinking “Commercial” Surrogacy in Australia’ (2015) 12 Bioethical Inquiry 477
Millbank, Jenni, ‘Recognition of Lesbian and Gay Families in Australian Law – Part Two – Children’ (2006) 34 Federal Law Review 205
Millbank, Jenni, ‘Unlikely Fissures and Uneasy Resonances: Lesbian Co-Mothers, Surrogate Parenthood and Fathers’ Rights’ (2008) 16 Feminist Legal Studies 141
Minocha, Aneeta A, ‘The Socio-Cultural Context of Informed Consent in Medical Practice’ in B S Baviskar and Tulsi Patel (eds), Understanding Indian Society Past and Present (Orient BlackSwan, 2010) 257
Mitra Sayani and Silke Schicktanz, ‘Failed Surrogate Conceptions: Social and Ethical Aspects of Preconception Disruptions During Commercial Surrogacy in India’ (2016) 11(9) Philosophy, Ethics and Humanities in Medicine DOI 10.1186/s13010-016-0040-6
Munjal-Shankar, Diksha, ‘Autonomy, Choices and Consent in Commercial Surrogacy: Viewing Through the Indian Lens’ (2015) 7(4) Asian Bioethics Review 380
Nelson, Erin, Law, Policy and Reproductive Autonomy (Hart Publishing, 2013)
Palattiyil, George, Eric Blyth, Dina Sidhva and Greeta Balakrashnan, ‘Globalisation and Cross-border Reproductive Services: Ethical Implications of Surrogacy in India for Social Work’ 53(5) International Social Work 686
368
Pande, Amrita, ‘“It May Be Her Eggs but It’s My Blood”: Surrogates and Everyday Forms of Kinship in India’ (2009) 32 Qualitative Sociology 379
Pande, Amrita, ‘Not an “Angel”, Not a “Whore”: Surrogates as “Dirty” Workers in India’ (2009) 16(2) Indian Journal of Gender Studies 141
Pande, Amrita, ‘Commercial Surrogacy in India: Manufacturing a Perfect Mother-Worker’ (2010) 35(4) Signs 969
Pande, Amrita, ‘“At Least I Am Not Sleeping with Anyone”: Resisting the Stigma of Commercial Surrogacy in India’ (2010) 36(2) Feminist Studies 292
Pande, Amrita, ‘Transnational Commercial Surrogacy in India: Gifts for Global Sisters’ (2011) 23(5) Reproductive Biomedicine Online 618
Pande, Amrita, Wombs in Labor (Columbia University Press, 2014)
Pande, Amrita, ‘Global Reproductive Inequalities, Neo-Eugenics and Commercial Surrogacy in India’ (2016) 64(2) Current Sociology Monograph 244
Panitch, Vida, ‘Global Surrogacy: Exploitation to Empowerment’ (2013) 9(3) Journal of Global Ethics 329
Panitch, Vida, ‘Surrogate Tourism and Reproductive Rights’ (2013) 28(2) Hypatia 274
Panitch, Vida, ‘Transnational Surrogacy and the Justice Condition of Nonexploitation’ (2014) 14(5) The American Journal of Bioethics, 46
Petersen, Thomas Sobirk, ‘Being Worse Off: But in Comparison with What? On the Baseline Problem of Harm and the Harm Principle’ (2014) 20 Res Publica 199
Qin, J, H Wang, X Sheng et al, ‘Pregnancy-related Complications and Adverse Pregnancy Outcomes in Multiple Pregnancies Resulting from Assisted Reproductive Technology: A Meta-analysis of Cohort Studies’ (2015) 103(6) Fertility and Sterility 1492
Rees, J C, ‘A Re-Reading of Mill on Liberty’ in Gray and G W Smith (eds), J.S. Mill on Liberty in Focus (Routledge, 1991) 169
Riggs, Damien W, ‘Narratives of Choice Amongst White Australians Who Undertake Surrogacy Arrangements in India’ (2016) 37 Journal of Medical Humanities 313
Ringen, Stein, ‘Liberty, Freedom and Real Freedom’ (2005) 42(3) Society 36 Ritchie, D G, The Principles of State Interference (S. Sonnonschein & Co, 1891)
369
Roalkvam, Sidsel, ‘Health Governance in India: Citizenship as Situated Practice’ (2014) 9(8) Global Public Health 910 Robertson, John A, Children of Choice: Freedom and the New Reproductive Technologies (Princeton University Press, 1994)
Rogers, Wendy, Catriona Mackenzie and Susan Dodds, ‘Why Bioethics Needs a Concept of Vulnerability’ (2012) 5(2) International Journal of Feminist Approaches to Bioethics 11
Rosenblum, Irit, ‘Being Fruitful and Multiplying: Legal, Philosophical, Religious, and Medical Perspectives on Assisted Reproductive Technologies in Israel and Internationally’ (2010) 36 Suffolk Transnational Law Review 627
Rudrappa, Sharmila, Discounted Life: The Price of Global Surrogacy in India (New York University Press, 2015)
Rundle, Olivia and Samantha Harley, ‘Australian Birth Certificates: The Best Interests of No- one at all’ (2012) 26 Australian Journal of Family Law 116
Saravanan, Sheela, ‘Global Justice, Capabilities Approach and Commercial Surrogacy in India, (2015) 18 Med. Health Care and Philos. 295
Saravanan, Sheela, ‘An Ethnomethodological Approach to Examine Exploitation in the Context of Capacity, Trust and Experience of Commercial Surrogacy in India’ (2013) 8(10) Philosophy, Ethics and Humanities in Medicine http://www.peh-med.com/content/8/1/10
Savulescu, Julian, ‘Is the Sale of Body Parts Wrong? (2003) 29 Journal of Medical Ethics 138
Scott, Elizabeth, ‘Surrogacy and the Politics of Commodification’ (2009) 72 Law and Contemporary Problems 109
Smerdon, Usha Rengachary, ‘Birth Registration and Citizenship Rights of Surrogate Babies Born in India’ (2012) 20(3) Contemporary South Asia 341
Smerdon, Usha Rengachary, ‘India’ in Katarina Trimmings and Paul Beaumont (eds), International Surrogacy Arrangements Legal Regulation at the International Level (Hart Publishing, 2013)
Smith, Patricia, ‘Legal Liability and Criminal Omissions’ (2001-2002) 5 Buffalo Criminal Law Review 69
Sparrow, Robert, ‘Therapeutic Cloning and Reproductive Liberty’ (2009) 34 Journal of Medicine and Philosophy 102
370
Stafford-Bell, Martyn A, Sam G Everingham and Karin Hammarberg, ‘Outcomes of Surrogacy Undertaken by Australians Overseas’ (2014) Medical Journal of Australia 330
Stephen, James Fitzjames, Liberty, Equality, Fraternity (Smith & Elder, 1874)
Stephens, Robert J, ‘Sites of Conflict in the Indian Secular State: Secularism, Caste and Religious Conversion’ (2007) 49(2) Journal of Church and State 251
Strong, Carson, ‘Harming by Conceiving: A Review of Misconceptions and a New Analysis’ (2005) 30 Journal of Medicine and Philosophy 491
Stuhmcke, Anita, ‘Surrogate Motherhood: The Legal Position in Australia’ (1994) 2 Journal of Law and Medicine 116
Stuhmcke, Anita, ‘For Love or Money: The Legal Regulation of Surrogate Motherhood’ [1996] Murdoch University Electronic Journal of Law 6
Stuhmcke, Anita, ‘Looking Backwards, Looking Forwards: Judicial and Legislative Trends in the Regulation of Surrogate Motherhood in the UK and Australia’ (2004) 18 Australian Journal of Family Law 13
Stuhmcke, Anita, ‘The Criminal Act of Commercial Surrogacy in Australia – A Call for Review’ (2011) 18(3) Journal of Law and Medicine 601
Stuhmcke, Anita, ‘The Regulation of Commercial Surrogacy: The Wrong Answers to the Wrong Questions’ (2015) 23 Journal of Law and Medicine 333
Tamburrini, Claudio, ‘What’s wrong with J.S. Mill’s “Harm to Others” Principle?’ (2011) 38 Journal of the Philosophy of Sport 1
Tanderup, Malene, Sunita Reddy and Tulsi Patel et al, ‘Informed Consent in Medical Decision-Making in Commercial Gestational Surrogacy: A Mixed Methods Study in New Delhi, India’ (2015) 94 Nordic Federation of Societies of Obstetrics and Gynecology 465
Tanderup, Malene, Sunita Reddy and Tulsi Patel et al, ‘Reproductive Ethics in Commercial Surrogacy: Decision-making in IVF Clinics in New Delhi, India’ (2015) Journal of Bioethical Inquiry DOI 10.1007/s11673-015-9642-8
Teman, Elly, ‘The Social Construction of Surrogacy Research: An anthropological critique of the psychosocial scholarship on surrogate motherhood’ 67(7) Social Science & Medicine 1104
Tobin, John, ‘To Prohibit or Permit: What is the (Human) Rights Response to the Practice of International Commercial Surrogacy’ (2014) 63(2) International and Comparative Law Quarterly 317
Trowse, Philippa, ‘Competing Interests or a Tangled Web’ (2013) 33 The Qld Lawyer 199
371
Trowse, Pip, ‘Gestational Surrogacy in Australia’, in E. Scott Sills (ed) Handbook of Gestational Surrogacy: International Clinical Practice and Policy Issues (Cambridge University Press, 2016)
Turner, Peter Norris, ‘“Harm” and Mill’s Harm Principle’ (2014) 124(2) Ethics 299
Vaid, David, ‘The Caste-Class Association in India: An Empirical Analysis’ (2012) 52(2) Asian Survey 395
Van den Akker, Olga, ‘Genetic and Gestational Surrogate Mothers’ Experience of Surrogacy’ (2003) 21(2) Journal of Reproductive and Infant Psychology 145
Van den Akker, Olga, ‘A Longitudinal Pre-Pregnancy to Post-Delivery Comparison of Genetic and Gestational Surrogate and Intended Mothers: Confidence and Genealogy’ (2005) 26(4) Journal of Psychosomatic Obstetrics and Gynecology 277
Vora, Kalindi, ‘Indian Transnational Surrogacy and the Commodification of Vital Energy’ (2009) 28 Subjectivity 266
Vora, Kalindi, ‘Potential, Risk and Return in Transnational Indian Gestational Surrogacy’ (2013) 54(7) Current Anthropology 97
Vincent, Caroline and Alene D Aftandilian, “Liberation or Exploitation: Commercial Surrogacy and the Indian Surrogate’ (2013) 36(3) Suffolk Transnational Law Review 671
Watson Janu, Penne, ‘The Case for Discouragement of Surrogacy Arrangements’ (1996) 4 Journal of Law and Medicine 72
Waughray, Annapurna, ‘Caste Discrimination and Minority Rights: The Case of India’s Dalits’ (2010) 17 International Journal on Minority and Group Rights 327
Weede, E, ‘The Rise of India: Overcoming Caste Society and Permit-License Quota Raj, Implementing Some Economic Freedom’ (2010) 18(2) Asian Journal of Political Science 129
Wertheimer, Alan, ‘Exploitation and Commercial Surrogacy’ (1996-1997) 74(4) Denver University Law Review 1215
Wertheimer, Alan, ‘Remarks on Coercion and Exploitation’ (1996-97) 74(4) Denver University Law Review 889
Wertheimer, Alan, ‘Two Questions about Surrogacy and Exploitation’ (1992) 21(3) Philosophy and Public Affairs 211
Wertheimer, Alan, Exploitation (Princeton University Press, 1999)
372
White, Gladys, ‘Gestational Surrogates in Rural India: A Lot to Offer and Even More to Lose (2014) 14(5) The American Journal of Bioethics 40
Whittaker, Andrea, ‘Challenges of Medical Travel to Global Regulation: A Case Study of Reproductive Travel in Asia’ (2010) 10 Global Social Policy 396
Widdows, Heather, ‘Localized Past, Globalized Future: Towards an Effective Bioethical Framework Using Examples from Population Genetics and Medical Tourism’ (2011) 25(2) Bioethics 83
Wilkinson, Stephen, ‘The Exploitation Argument against Commercial Surrogacy’ (2003) 17(2) Bioethics 169
Wilkinson, Stephen, Bodies for Sale (Routledge, 2003)
Wilkinson, Stephen, Choosing Tomorrow’s Children: The Ethics of Selective Reproduction (Oxford University Press, 2010)
Wilkinson, Stephen, ‘Exploitation in International Paid Surrogacy Arrangements’ (2016) 33(2) Journal of Applied Philosophy 125
Willmott, Lindy, ‘Surrogacy: ART’s Forgotten Child’ (2006) 29(2) UNSW Law Journal 22.
Wood, Allen W, ‘Exploitation’ (1995) Social Philosophy and Policy Foundation 136
B Cases Baby Manji Yamada v Union of India (2008) I.N.S.C. 1656 (India)
Balaz v Anand Municipality No 3120, Special Civil Application (Gujarat H.C. 2008)
Bernieres v Dhopal [2017] FAMCAFC 180
Bernieres v Dhopal (2015) 53 Fam LR 547
Chapman v Hearse (1961) 106 CLR 112
Collins v Tangtoi [2010] FamCA 878
Commissioner of Taxation v Hornibrook (2006) 156 FCR 313
Dennis v Pradchaphet [2011] FamCA 123
Dudley v Chedi [2011] FamCA 502
373
Edmore v Bala [2011] FamCA 73
Ellison v Karnchanit [2012] Fam LR 33
Hubert v Juntasa [2011] FamCA 504
Findlay v Punyawong [2011] FamCA 503
Gough v Kaur [2012] FamCA 79
H v Minister for Immigration and Citizenship [2010] FCAFC 119.
Johnson v Calvert 5 Cal.4th 84, 851 P.2d 776
Johnson v Chompunut [2011] FamCA 505
King v Tamsin [2008] FamCA 309
L’Estrange v Graucob [1934] 2 KB 394
Mason & Mason [2013] FamCA 424
O’Connor v Kasemsarn [2010] FamCA 987
Raines and anor & Curtain [2007] FamCA 1295
Re B and J (1996) 21 Fam LR 186
Re Baby M (1988) 537 A 2d 1227
Re Blake [2013] FCWA 1
Re C (A Minor) (Wardship: Surrogacy) [1985] FLR 846
Re Evelyn (1998) 23 Fam LR 53
Re Mark (2003) 31 Fam LR 162
Re Michael: Surrogacy Arrangements [2009] 41 Fam LR 694
Re W Adoption (1998) 23 Fam LR 538
374
Ronalds v Victor [2011] FamCA 389
Schone v Schone [2012] FMCA FAM 1126
Strong v Woolworths Ltd (T/as Big W) (ABN 000 014 675) (2012) 285 ALR 420
Wilkie v Mirkja [2010] FAMCA 667
C Legislation Adoption Act 2009 (Qld)
Artificial Conception Act 1985 (WA)
Artificial Conception Act 1986 (ACT) (repealed)
Assisted Reproductive Technology Act 2007 (NSW)
Assisted Reproductive Treatment Act 2008 (Vic)
Australian Citizenship Act 2007 (Cth)
Births, Deaths and Marriages Registration Act 2003 (Qld)
Bonded Labour (Abolition) Act 1976
Citizenship Act 1955 India
Civil Law (Wrongs) Act 2002 (ACT)
Civil Liability Act 1936 (SA)
Civil Liability Act 2002 (NSW)
Civil Liability Act 2002 (Tas)
Civil Liability Act 2002 (WA)
Civil Liability Act 2003 (Qld)
Constitution (Scheduled Castes) Orders (Amendment) Act 1990 India
Crimes Act 1900 (NSW)
375
Criminal Code Act Compilation Act 1913 (WA)
Criminal Law (Territorial Application) Act 1995 (Tas)
Criminal Law Consolidation Act 1935 (SA)
Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act 1993 (India)
Family Law Act 1975 (Cth)
Family Relationships Act 1975 (SA)
Human Reproductive Technology Act 1991 (WA)
Infertility (Medical Procedures) Act 1984 (Vic)
Infertility Treatment Act 1995 (Vic) (repealed)
Parentage Act 2004 (ACT)
Protection of Civil Rights Act 1976
Reproductive Technology Act 1988 (SA) (repealed)
Reproductive Technology (Clinical Practices) Act 1988 (SA)
Reproductive Technology (Clinical Practices) (Miscellaneous) Amendment Act 2009 (SA)
Scheduled Castes and Scheduled Tribes Prevention of Atrocities Act 1989 (India)
Slum Areas (Improvement and Clearance) Act 1956 (India)
Status of Children Act (NT)
Status of Children Act 1974 (Tas)
Status of Children Act 1974 (Vic)
Status of Children Act 1978 (Qld)
Status of Children Act 1996 (NSW)
376
Statutes Amendment (Surrogacy) Act 2009 (SA) (No. 64/2009)
Substitute Parent Agreements Act 1994 (ACT) (repealed)
Surrogacy Act 2008 (WA)
Surrogacy Act 2010 (NSW)
Surrogacy Act 2010 (Qld)
Surrogacy Act 2012 (Tas)
Surrogacy Contracts Act 1993 (Tas) (repealed)
Surrogate Parenthood Act 1988 (Qld) (repealed)
The Pre-conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act 1994 (India)
The Constitution of India
Untouchability Offences Act 1955 (India)
Wrongs Act 1958 (Vic)
D Parliamentary Debates/Hansard Explanatory Memorandum, Parentage Bill 2003 (ACT)
Government Response to the Report of the Investigation into Altruistic Surrogacy Committee, Investigation into the Decriminalisation and Regulation of Altruistic Surrogacy in Queensland, Queensland Legislative Assembly, 23 April 2009 (Anna Bligh, Premier)
New South Wales, Parliamentary Debates, Legislative Council, 21 October 2010, 26547 (John Hatzistergos)
Queensland, Parliamentary Debates, 14 February 2008, 224-5 (Anna Bligh, Premier)
Surrogacy Bill 2010, New South Wales Legislative Assembly, Hansard, 10 November 2010 (Linda Burney)
Surrogacy (Regulation) Bill 2016, Department of Health Research, Ministry of Health and Family Welfare, Government of India, 16 September 2016
377
Tasmania, Parliamentary Debates, Second Reading Speech, House of Assembly, 11 November 1992, 19-71 (Judy Jackson, Member for Denison)
Tasmania, Parliamentary Debates, Second Reading Speech, House of Assembly, 11 November 1992, 19-71 (Roger Groom, Minister for Community Services)
E Parliamentary Reports and Advice Australian Capital Territory Law Reform Commission, Substitute Parentage Agreements Report No 20 Canberra (December 2003)
Australian High Commission India Commonwealth Government, Children Born Through Surrogacy Arrangements http://www.india.embassy.gov.au/ndli/vm_surrogacy.html (25 June 2013)
Demack J, Report of the Special Committee Appointed by the Queensland Government to Enquire into the Laws Relating to Artificial Insemination, In Vitro Fertilisation and Other Related Matters Queensland Parliament (1 March 1984)
Department of Health, New South Wales, Review of the Human Tissue Act 1983 Discussion Paper: Assisted Reproductive Technologies (1998)
Family Law Council of Australia, Creating Children: A Uniform Approach to the Law and Practice of Reproductive Technology in Australia (1985)
Family Law Council of Australia, Report on Parentage and the Family Law Act (2013) https://www.ag.gov.au/FamiliesAndMarriage/FamilyLawCouncil/Pages/FamilyLawCouncilp ublishedreports.aspx
Health Department of Western Australia, Report to the Minister for Health for Western Australia from the Reproductive Technology Working Party (August 1988)
Investigation into Altruistic Surrogacy Committee, Queensland Parliament, Investigation into the Decriminalisation and Regulation of Altruistic Surrogacy in Queensland (October 2008)
Legislative Council Government Administration Committee ‘A’, Parliament of Tasmania, Inquiry into Surrogacy Bill 2011 and Surrogacy (Consequential Amendments) Bill 2011 (2011)
Legislative Council Select Committee, Parliament of Tasmania, Report on Surrogacy (July 2008)
National Bioethics Consultative Committee, Commonwealth of Australia, Surrogacy – Report 1 (April 1990)
National Bioethics Consultative Committee, Commonwealth of Australia, Surrogacy – Report 2 (1990)
378
National Reproductive Technology Working Group, Report to Joint Session of Health and Welfare Ministers (25 March 1991)
New South Wales Law Reform Commission, Artificial Conception: Human Artificial Insemination Report 49 (1986)
New South Wales Law Reform Commission, Artificial Conception: Surrogate Motherhood Report 60 (1988)
New South Wales Law Reform Commission, Artificial Conception: In vitro fertilisation Report 58 (1988)
Office of the Chief Medical Officer, Department of Health (on behalf of the Minister for Health), Review of Surrogacy Act 2008 Report to the Western Australian Parliament (November 2014)
Queensland Parliament, Altruistic Surrogacy in Queensland, Background Paper 2993 (February 2008)
Select Committee on Artificial Insemination by Donor, Legislative Council, Parliament of South Australia, In-Vitro fertilisation and Embryo Transfer Procedures and Related Matters Report (April 1987)
Select Committee on the Human Reproductive Technology Act 1991, Legislative Assembly, Parliament of Western Australia, Select Committee on the Human Reproductive Technology Act 1991 Report (22 April 1999)
Social Development Committee, Parliament of South Australia, Inquiry into Gestational Surrogacy 26th Report (13th November 2007)
Standing Committee of Attorney’s-General, Australian Health Ministers’ Conference Community and Disability Services Ministers’ Conference Joint Working Group, A Proposal for a National Model to Harmonise Regulation of Surrogacy (January 2009)
Standing Committee on Legislation, Western Australian Legislative Assembly, Report 12 Standing Committee on Legislation in Relation to the Surrogacy Bill 2007 (May 2008)
Standing Committee on Social Policy and Legal Affairs, The Parliament of the Commonwealth of Australia House of Representatives, Surrogacy Matters, Inquiry into the Regulatory and Legislative Aspects of International and Domestic Surrogacy Arrangements (2016)
The Taskforce on Women and the Criminal Code, Queensland Government Office of Women’s Policy, Department of Equity and Fair Trading, Report on the Taskforce on Women and the Criminal Code (February 2000)
379
Victorian Law Reform Commission, Assisted Reproductive & Adoption, Final Report (2007)
Victorian Law Reform Commission, Assisted Reproductive Technology and Adoption, Position Paper No 3: Surrogacy (2005)
Western Australia Committee to Inquire into the Social Legal and Ethical Issues relating to In Vitro Fertilisation and its Supervision, Report (1986)
F Guidelines Indian Council of Medical Research, ‘National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India’ Ministry of Health and Family Welfare, Government of India (2005)
National Health and Medical Research Council, Ethical Guidelines for the Clinical Practice of ART (2007)
G Newspaper Articles Corderoy, Amy, ‘Australians Flock to India to Find Surrogate Mothers’ (2013) The Age http://www.theage.com.au/national/australians-flock-to-india-to-find-surrogate-mothers- 20130913-2tqbx.html
Hawley, Samantha, Suzanne Smith and Michael McKinnon, ‘India Surrogacy Case: Documents Show New South Wales Couple Abandoned Baby Boy Despite Warnings’ Australian Broadcasting Commission 13 April 2015 http://www.abc.net.au/news/2015-04- 13/australian-couple-abandon-baby-boy-in-india-surrogacy-case/6387206
Kerin, Lindy, ‘Australian Dad Pleads for Government Help After Twin Babies Stranded in Nepal’ Australian Broadcasting Commission 21 October 2015 http://www.abc.net.au/news/2015-10-21/australian-twin-babies-stranded-in-nepal/6871840.
Klein, Renate, ‘Baby Gammy has Shown the Need for Debate on Surrogacy’ The Age (Online) 20 August 2014
Medew, Julie, ‘Australian Parents of Babies Carried by Nepali Surrogates Warned of Delays’ The Sydney Morning Herald (Online) 2 May 2015 380 H Other Australian Government, National Health and Medical Research Council Homepage (last updated 12 May 2015) http://www.nhmrc.gov.au Australian Government, Workplace Gender Equality Agency, Gender Workplace Statistics at a Glance https://www.wgea.gov.au/sites/default/files/Stats_at_a_Glance.pdf BBC, On This Day (4 January 1985) Bureau of Immigration Ministry of Home Affairs, Government of India http://boi.gov.in/content/surrogacy Census of India, Office of the Registrar General & Census Commissioner, Ministry of Home Affairs, India http://www.censusindia.gov.in/2011-common/aboutus.html. Centre for Social Research, Surrogate Motherhood-Ethical or Commercial (Delhi and Mumbai) Final Report (undated) http://www.csrindia.org/about-us/publications/research- studies Centre for Social Research, Surrogate Motherhood-Ethical or Comemrcial (Anand, Surat and Jamnagar) (undated) http://www.csrindia.org/about-us/publications/research-studies Department of School Education and Literacy, Department of Higher Education, Ministry of Human Resource Development, Government of India, Annual Report 2013-2014 Department of Health & Family Welfare Ministry of Health and Family Welfare Government of India, Annual Report 2015-16 Ministry of Social Justice & Empowerment Government of India, National Commission for Backward Classes Annual Report 2014-15 Gupta, R, S Sankhe, R Dobbs, J Woetzel et al, ‘From Poverty to Empowerment: India’s Imperative for Jobs, Growth, and Effective Basic Services’ (McKinsey Global Institute, Mumbai, 2014) Gupta, Kamala, Fred Arnold and H Lhungdim, ‘Health and Living Conditions in Eight Indian Cities, National Family Health Survey (NHFS-3) India, 2005-6’ (International Institute for Population Sciences, Mumbai, 2009) International Institute for Population Sciences (IIPS), National Family Health Survey (NFHS- 2) 1998-99, Mumbai Kishor, Sunita and Kamla Gupta, ‘Gender Equality and Women’s Empowerment in India, National Family Health Survey (NFHS-3) India 2005-06’ (Mumbai International Institute for Population Sciences, August 2009) 381 Kumari, Ranjana, ‘Surrogate Motherhood- Ethical or Commercial’ (Centre for Social Research, Vasant Kunj) Letter from Sanjeev Chadha (Director) to Chief Secretaries of all States/Administrators of UTs, Principal Secretaries/Secretaries of health & Family Welfare Department of all States/Union Territories Governments, 4 November 2015 in Government of India Ministry of Health & Family Welfare (Department of Health Research) No. V. 25011/119/2015-HR Letter from B V R Murthy (Under Secretary to the Govt. of India) to All Indian Missions/Posts abroad, All State Governments/Union Territory Administrations, FRROs – Delhi, Mumbai, Chennai, Kolkata, Amritsarm Bangalore, Hyderabad, Kochi, Thiruvananthapuram, Calicut, Goa, Lucknow and Ahmedabad, 3 November 2015 in Government of India Ministry of Home Affairs (Foreigners Division) F No 25022/74/2011- F1 attached to Circular No 462 Letter from G V V Sarma (Joint Secretary (Foreigners) Ministry of Home Affairs) to Shri Amarendra Khatua (Additional Secretary, Ministry of External Affairs), 9 July 2012 in Government of India Ministry of Home Affairs (Foreigners Division) F No 25022/74/2011- F1 attached to Circular No 462 Letter from Vikas Srivastava (Under Secretary (Foreigners) Ministry of Home Affairs) to All Indian Missions/Posts, Principal Secretary (Home) of all State Governments/ UT Administrations, FRROs – Delhi, Mumbai, Chennai, Kolkata, Amritsar, Bangalore, Hyderabad, Kochi, Thiruvananthapuram, Calicut, Panaji and Lucknow, 19 February 2014 in Government of India Ministry of Home Affairs (Foreigners Division) F No 25022/74/2011- F1 attached to Circular No 462 Ministry of Health and Family Welfare, Government of India, International Institute for Population Sciences (IIPS) and Macro International, National Family Health Survey (NFHS- 3) 2005-06 India Volume 1 Mumbai: IIPS (2007) Ministry of Health and Family Welfare, Government of India, International Institute for population Sciences, National Family Health Survey (NHFS-4) 2015-16 (2014) http://rchiips.org/NFHS/NFHS4/manual/NFHS-4%20Interviewer%20Manual.pdf . Ministry of Health and Family Welfare, Government of India, International Institute for Population Sciences, National Family Health Survey (NFHS-4) 2015-16 India Fact Sheet 2 Ministry of Health and Family Welfare, Government of India, International Institute for Population Sciences, National Family Health survey (NFHS-4)2015-16 State Fact Sheet Gujarat Press Information Bureau Government of India http://pib.nic.in/newsite/PrintRelease.aspx?relid=149186 382 Sama Resource Group for Women and Health, ‘Birthing a Market: A Study on Commercial Surrogacy’ (2012) New Delhi http://www.samawomenshealth.in/category/publications/research-reports Sci Healthcare, Surrogacy Centre India http://surrogacycentreindia.com/legal- considerations.html (accessed 16 July 2013)