Nazneen Mehta is a second-year law student at Columbia Law School and is writing a Note on the international market in surrogacy services – particularly between relatively affluent “intended parents” in the US and poor female surrogates in India. Her Note will examine the ways in which this market might better be regulated by law in order to protect the rights and interests of the surrogates in India. Her research has taken her to Mumbai, India over the winter break to better understand the conditions under which the surrogates are working. What follows are her initial reflections on this research:
Alex Kuczynski’s story, “Her Body, My Baby,” about her experience bonding with the woman who became her son’s surrogate mother portends the rise of what Noa Ben-Asher on this blog suggested are “new and surprising extra-legal familial structures.”
But, maybe not. In a largely obscure industry that is becoming increasingly transnational, Kuczynski’s story could be the outlier.
Surrogacy has quietly spread beyond national borders, creating a multi-million dollar global industry that joins together women like Kuczynski with poor women in developing nations. But unlike Kuczynski and her surrogate, Cathy Hilling (with whom she was on a first-name basis), the surrogates in these developing nations will never share tuna sandwiches or host backyard barbeques with the “intended parents.”
In fact, very few surrogates in developing nations will meet the parents for whom they are carrying a child. As a doctor at an international surrogacy clinic in Mumbai, India, related to me, the clinic discourages intended parents from meeting the woman the center has chosen to be the surrogate. The doctor explained that the women come from the ranks of India’s poor, and if they “see foreigners,” the women may try to get more money or resources out of the intended parents. There is no “wink and nod” custom, and the reality of class division lie exposed between the intended parents and the surrogate.
The selection process further removes intended parents from knowing the individual women who become their surrogates. Kuczynski pored over the profiles of potential surrogates, reading each woman’s personal story and employment demands. International surrogacy agreements, however, are largely facilitated by surrogacy clinics operating in developing nations. The clinics recruit a pool of poor women to become surrogates and then assign the women to intended parents. There are no personal stories about the women’s lives or ambitions to distinguish one from another; women need only pass the clinics’ health and psychological screening to become a surrogate. (The selection process implicates the issues of race and class discussed by Khiara Bridges on this blog, and suggests that her analysis of Black women in the U.S. could extend to poor women of color in developing nations).
I make these comparisons between international surrogacy and Kuczynski’s story not to push normative claims about either type of surrogacy agreement. Rather, I contrast the two models to bring international surrogacy into the discussion. And to suggest that in the battle between the legal frameworks mentioned by Ben-Asher—the surrogate as hired outsider vs. surrogate as extended family member—the former may be pulling ahead.
Hi Nazneen:
This is very interesting. Your study is timely and important in understanding this rising market of gestational surrogacy. One way of conceptualizing this in terms of globalization is that the liberalization of gestational surrogacy laws inside the US has led to a supply market in India of gestational surrogates that offers the legalized commodity for a cheaper price. And as you rightly point out, because in this market the supply-provider (the gestational surrogate) is detached from the intended family, and will not even meet the intended parents or the child, we are more likely in the realm of surrogate as service provider than in the realm of surrogate as extended family member.
I am curious however, why you write that “Kuczynski’s story could be the outlier.” I think that rather than rule and exception, we can think about his as two different kinds of emerging gestational surrogacy markets: domestic and international. These markets, I think, both on the supply and the demand side will be attractive to actors moved by different psychological and social impluses. Kuczynski’s story, I think, is representative of prevailing attitudes among certain economic classes. My prediction is that this type of actors will prefer the domestic markets. Kuczynski is looking for *more* than a surrogate in the woman that she hires. Her psychological issues, as she puts them in the article have to do with failure to become mother, failed femininity, and a woman *just like her* to complete that “failure.” As you mention, it is very important to her that the surrogate is educated (and voted for Obama). The Kuczynski type actor on the demand side is looking for a woman who will complete her womanhood, with whom she can identify, and with whom she will give birth TOGETHER. In contrast,
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Here is Part II:
In contrast, some actors on the demand side of gestational surrogacy will not be interested in the surrogate as anything else than a carrier. In many senses, they will treat the transaction just like a purchase of an anonymous sperm or egg from a bank. An example of possible actors here are gay men or couples, for whom the drama of failed motherhood is less significant.
Interestingly, there may also be two types of gestational surrogates on the supply end. In India, as you suggest, poor women are brought from rural villages into clinics in Mumbai. Their incentive for doing so is clearly financial. But in the US domestic context, we are finding more layered incentives from surrogates, most significantly– many surrogates report altruistic motives in helping another woman become a mother. This is certainly the case in the Kuczynski story.
Do you think we should perhaps consider two types of regulation here, one for domestic and one for international surrogacy?
Noa,
Thanks for your reply.
I agree that the international market in gestational surrogacy will attract couples with different visions for the surrogacy process–some couples will want a closer relationship (like Kuczynski’s) and others will opt for a more detached contractual relationship that can be facilitated by international surrogacy. But one consideration that may cut against couples’ ability to choose between these two types of experiences is cost.
From my preliminary research with clinics, it seems that surrogates in countries like India receive less than half of what the surrogates in Kuczynski’s story were asking to be paid. So, couples who want a closer relationship (or a fellow college graduate or Obama supporter), may find themselves opting for a more depersonalized process because price prohibits them from entering the market Kuczynski could afford.
To answer your other question, I do think that countries should consider two different types of regulation for surrogacy agreements made domestically and internationally. State law in the U.S. governs surrogacy contracts, and domestic surrogates can appeal to state courts for breaches of contract or rights violations. By contrast, the rights of surrogates in international surrogacy are more indeterminate. Countries like India have yet to domestically regulate the business of international surrogacy, which may raise concerns about the enforcement of surrogates’ labor rights in these arrangements.
I think that countries of the intended parents and developing countries where surrogates live should work together to enact laws to protect the rights of surrogates in these international transactions. For example, developing countries can institute licensing programs to ensure that surrogacy centers meet national labor standards. Countries of the intended parents can then use a surrogacy clinic’s licensing credentials to decide whether to grant immigration paperwork for a child born to a surrogate overseas.
This is only a suggestion. Public law is only one possibility for responding to the new and rapidly changing market in international surrogacy.
We are happy to announce a seminar in Dallas on ‘Surrogacy in India’ in Jan 2009. Acclaimed Assisted Reproductive Technology expert Dr Gautam Allahbadia’s talk is the highpoint of the seminar.
All your questions related to surrogacy in India will be answered at the seminar.
Interested persons may please contact us at surrogacyATmedicaltourismcoDOTcom
Thanks.