IS COMMERCIAL SURROGACY A NEW FORM OF LABOUR EXPLOITATION?

UNSW | Master of Human Rights Law and Policy 2019 | Essay submitted by Sonja Duncan IS COMMERCIAL SURROGACY A NEW FORM OF LABOUR EXPLOITATION?

I INTRODUCTION

Commercial surrogacy is one of the fastest growing assisted reproductive techniques (‘ART’) in recent times. As a global industry, it is estimated to be worth $6 billion annually.1 The regulation of this industry raises complex socio-legal and ethical concerns.

This essay argues that commercial surrogacy is a new form of labour exploitation which targets poor and vulnerable women who often do not have access to education, labour and job markets.

However, a global prohibition of commercial surrogacy would not reduce the incidence of exploitation, but rather push it underground.

It is argued that banning commercial surrogacy and criminalising extra-territorial paid surrogacy in Australia and other western jurisdictions will not stop exploitation of surrogates globally. Rather, it provides ‘a blunt and useless instrument if the goal is to protect the rights and interests of all parties involved in the surrogacy arrangements.’2 Consistent international regulations are needed to manage and respond to the risk of exploitation of surrogates, particularly in developing countries.

Commercial surrogacy is the process whereby a woman is paid for carrying and giving birth to a child and then giving up that child (and all associated parental rights) to the commissioning (or intended) parents.3 In traditional commercial surrogacy arrangements, the surrogate mother is genetically related to the child and is inseminated with the sperm of either the intended father or donor. Conversely, gestational commercial surrogacy utilises in vitro fertilisation using either the egg and sperm of the intended parents or donors. The surrogate mother is not related to the child and may be referred to as ‘a gestational carrier, gestational surrogate or gestational host’.4

Raywat Deonandan, ‘Recent trends in reproductive tourism and international surrogacy: ethical considerations and challenges for policy.’ (2015) 8 Risk Management and Healthcare Policy 111 – 119, 111.

2 Jenni Millbank, ‘Rethinking “Commercial” Surrogacy in Australia (2015) 12 Bioethical Inquiry 477 – 490, 488.

3 Stephen Wilkinson, ‘The Exploitation Argument Against Commercial Surrogacy’ (2003) 17 Bioethics 169 – 187, 170.

4 Vanessa Browne-Barbour, quoted in Katarina Trimmings and Paul Beaumont, ‘International Surrogacy Arrangements: An urgent need for Legal Regulation at the International Level’ (2011) 7 Journal of Private International Law 627 – 647, 629.

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UNSW | Master of Human Rights Law and Policy 2019 | Essay submitted by Sonja Duncan There is no domestic or international consensus on the appropriate way to manage and regulate commercial surrogacy. Opponents to the legalisation of commercial surrogacy typically point to three areas of concern: a. harm to surrogates, their children, or society as a whole; b. the commodification of surrogates, children, or women in general; and c. the exploitation of women, especially those who are poor or otherwise vulnerable.

Interestingly, supporters of commercial surrogacy argue that legalising commercial surrogacy protects vulnerable women from exploitation as it enables ‘commercial surrogacy to be undertaken openly, by trained, registered health professional, in licensed and monitored premises’.5 This essay focuses on the ‘exploitation’ issue by examining regulations governing commercial surrogacy in India and Australia. It discusses commercial surrogacy through the lens of worker exploitation and from the perspective of three feminist legal theories: the radical/dominance model, the liberal equality model and the anti-essentialist model.

Part II provides an overview of the regulatory frameworks in India and Australia and the impact that the decision to legalise (or rather, to not regulate) commercial surrogacy in India has had on vulnerable women there. It explores whether recent changes in the regulatory landscape in India will lead to a decrease in exploitation of surrogates, or push the practice underground, leading to potentially worse conditions for surrogates.

Part III considers the causes of exploitation across different jurisdictions, with a particular focus on Australia and India. Acknowledging that the causes of exploitation may vary between jurisdictions, this essay considers the potential role exploitative pressures may play in Australian or Indian commercial surrogacy industries.

Part IV provides an overview of radical and liberal feminist legal theory perspectives in relation to commercial surrogacy. Despite their differences of opinion, the common objective amongst feminist legal theorists is to seek regulatory mechanisms for commercial surrogacy which support and liberate women and reduce their exploitation in unregulated labour markets. In that

Loan Skene, ‘Why legalising commercial surrogacy is a good idea’, The Conversation (online) 10 December 2012 <https://www.theconversation.com/why-legalising-commercial-surrogacy-is-a-good-idea-11251.html> 5

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UNSW | Master of Human Rights Law and Policy 2019 | Essay submitted by Sonja Duncan context, the essay explores whether an anti-essentialist feminist perspective is best placed to shape international regulation.

Part V evaluates the various legal and non-legal mechanisms for regulating commercial surrogacy in light of the theories presented in Part IV. It considers whether different legal and non-legal approaches could be applied across Australia and India based on variables such as culture, demographics, existing levels of worker exploitation and enforcement capacity.

While arguments in favour of banning commercial surrogacy in India and Australia are persuasive, Part VI concludes that banning the practice of commercial surrogacy may do little to alleviate the exploitation of vulnerable women in India. Further, banning the industry in India, and continuing to prohibit it in Australia, may simply increase the market for commercial surrogacy in other developing countries where the practice is legal but inadequately regulated.

II SURROGACY AS EXPLOITATION In its 2012 report to the Council of Europe, the European Centre for Law and Justice6 argues that commercial surrogacy is, at its very core, exploitation. In order to understand the scope for exploitation in commercial surrogacy, it is necessary to consider the varied conditions and exploitative pressures in developed and developing countries.

A Exploitation in developing countries The growing industry of procreative tourism (also referred to as fertility tourism, reproductive tourism and medical tourism) is supported largely by Western couples or individuals attracted by lower cost surrogacy services and a ‘ready availability of poor surrogates’.7 While the reasons for seeking surrogates abroad vary, key drivers include the illegality of commercial surrogacy in the intended parents’ country (e.g. Australia), the reduced cost of surrogacy in developing nations (e.g. India) and a low level of government interference in surrogacy

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European Centre for Law and Justice, Surrogate Motherhood: A Violation of Human Rights, Report Presented at the Council of Europe, Strasbourg 26 April 2012, 0 – 30, 3 7 Yamada v Union of India, quoted in Katarina Trimmings and Paul Beaumont, ‘International Surrogacy Arrangements: An urgent need for Legal Regulation at the International Level’ (2011) 7 Journal of Private International Law 627 – 647, 630 Page | 3

UNSW | Master of Human Rights Law and Policy 2019 | Essay submitted by Sonja Duncan arrangements.8 Referring to commercial surrogacy in India, Rotabi and Bromfield highlight a number of potentially exploitative practices, such as the processes used to recruit surrogates: The would-be surrogates are impoverished, often illiterate, women who are recruited from rural villages. They are brought to the clinics by ‘head hunters’, calling themselves social workers, and are required to stay in the clinic’s living quarters in a guarded dormitory-like setting for the entire pregnancy.9 The authors draw parallels between the recruiting processes used for surrogates and those used for sex workers, lured from Indian villages to the city by human traffickers.10 Bromfield’s earlier research identified further parallels to sex trafficking, where surrogates were required to sign documents (often in English) that they were unable to read, and were kept under ‘lock and key’ until their contract obligations were fulfilled.11 Former Chief Justice of the Family Court of Australia, John Pascoe, draws procedural similarities to other forms of human trafficking, stating that the ‘unsophisticated nature of many of the women preyed upon to become surrogate bearers… should be cause for concern’.12 He challenges the moral values of wealthy nations ‘prepared to use women from poorer countries as “battery hens” and see as acceptable the exploitation of these women in ways which would never be accepted at home’.13 Gupta compares commercial surrogacy, which she labels as the ‘industrialisation of motherhood’ to illegal organ trade and human trafficking: While trafficking in solid organs, and sex tourism involving women and children and human trafficking, is considered morally reprehensible, abhorrent, and is penalised, trade in reproductive body parts and exploiting women as surrogates have become socially acceptable practices. 14

Karen Smith Rotabi and Nicole Footen Bromfield, ‘The Decline in Intercountry Adoptions and New Practices of Global Surrogacy: Global Exploitation and Human Rights Concerns’ (2012) 27 Journal of Women and Social Work 129 – 141, 132.

9 Ibid, 133.

10 Ibid, 133.

11 Nicole Footen Bromfield, quoted in Karen Smith Rotabi and Nicole Footen Bromfield, above n 8, 133.

12 Chief Federal Magistrate Pascoe AO CVO, Intercountry Surrogacy – A new form of trafficking?’ (paper delivered at LegalWise 2nd Annual International Family Law Conference, Cambodia paper, 19 September 2012) <http://www.austlii.edu.au/au/journals/FedJSchol/2012/15.pdf>.

13 Ibid.

14 Jyotsna Gupta, ‘Reproductive biocrossings: Indian egg donors and surrogates in the globalised fertility market’ (2012) 5 International Journal of Feminist Approaches to Bioethics, 25 – 51, 47.

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UNSW | Master of Human Rights Law and Policy 2019 | Essay submitted by Sonja Duncan Fellowes argues that the Indian surrogate is used as a commodity to benefit others: her family, the medical profession and the commissioning couples.15 The family of the surrogate uses the gender subordination within the patriarchal system to persuade the women to trade their bodies (and their labour) for much needed income. Surrogates are often desperate, illiterate and unaware of the associated risks.16 The exploitation of women by the Indian medical profession is further highlighted by Gupta, who states that ‘physician entrepreneurs’ within the private health sector ‘have found in unregulated reproductive tourism a new source of income.’17 Gupta echoes the words of an unnamed media commentator who, following the controversial 2007 Oprah Winfrey story on surrogacy, referred to the surrogates as ‘womb slaves’ forced to live away from their families, ‘warehoused with other womb slaves’ and made to lie to their own families and social group due to the stigma associated with ‘carrying another man’s child’.18 Rothman likewise supports the view that surrogates are exploited and argues that, ‘as babies and children become products, mothers become producers, pregnant women the unskilled workers on a reproductive assembly line’.19 In contrast to these views, Pande recognises commercial surrogacy in India as ‘a survival strategy and a temporary occupation for some poor rural women’.20 In arguing that surrogates are laborers and not mere victims, Pande nevertheless acknowledges the limited range of alternative economic opportunities and unequal power relations between the client and the surrogate. This, she says, may call into question the voluntary nature of the labour of surrogacy.

While Pande argues for the structural reality of commercial surrogacy as a survival strategy in India, it does not necessarily follow that the practice should be accepted as ethical.21 Lippman describes surrogacy as a kind of ‘biological colonialism’, arguing that ‘surrogacy is not a

Fellowes, ‘Commercial surrogacy in India: The presumption of adaptive preference formation, the possibility of autonomy and the persistence of exploitation’ (2017) 17 Medical Law International 249 – 272, 268.

16 Ibid, 269.

17 Jyotsna A Gupta, above n14, 28.

18 Ibid, 39.

19 Barbara Katz Rothman, quoted in Amrita Pande, Wombs in Labor (Columbia University Press, 2014), 6.

20 Amrita Pande, Wombs in Labor (Columbia University Press, 2014), 8.

21 Jyotsna A Gupta, above n14, 42.

15 Melanie

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UNSW | Master of Human Rights Law and Policy 2019 | Essay submitted by Sonja Duncan solution to poverty’ and that the international community has to address the structural inequalities that drive women to make these decisions in the first place.22 B Exploitation in the Australian and other Western contexts Structural inequalities are not unique to developing countries and must also be considered in the Australian context. Lack of education, access to jobs, poverty and vulnerability are very real issues for many Australian women, particularly indigenous and migrant women.

The UN General Assembly Report of the Special Rapporteur on the sale and sexual exploitation of children highlights abusive and exploitative practices even in well-regulated commercial surrogacy jurisdictions.23 The report references the case of a prominent United States surrogacy attorney who admitted that she and her conspirators ‘used gestational carriers to create an inventory of unborn babies that they could sell for over $100,000 each’.24 According to the Report, the convicted attorney told the media that, ‘as to abusive practices, she was the tip of the iceberg of a corrupt and billion-dollar industry’.25 Radical feminist theorist Kathleen Sloan describes commercial surrogacy in the United States as ‘predatory, profit driven industry that preys on marginalised women’ and the ‘ultimate manifestation of the American neoliberal project of capitalist commodification of human life to create profit and fulfil the narcissistic desires of an entitled elite’.26 Sloan highlights that between 20 and 50 percent of surrogates in the United States are military wives, who represent an ‘ideal supply source’ for the industry, particularly given their relatively low incomes. Sloan insists this is a form of ‘class exploitation’ operating in the American surrogacy industry.

Smerdon observes that, in the United States, women of colour are more likely to be exploited in surrogacy arrangements. She quotes Mary Lyndon Stanley who proposed that, ‘in a society

Abby Lippman, quoted in ‘Offshore babies: The Murky world of transnational surrogacy’ Aljazeera America (online) 11 August 2014 <http://www.america.aljazeera.com/articles/2014/8/11/offshore-babiesthebusinessoftransnationalsurrogacy.html>.

23 Report of the Special Rapporteur on the sale and sexual exploitation of children, including child prostitution, child pornography and other child sexual abuse material, GA Human Rights Council, 37th Session, Agenda Item 3, UN Doc A/HRC/37/60 (26 February – 23 March 2018).

24 Federal Bureau of Investigation, quoted in Report of the Special Rapporteur on the sale and sexual exploitation of children, including child prostitution, child pornography and other child sexual abuse material, above n23, para 30.

25Rory Devine and R. Stickney, quoted in Report of the Special Rapporteur on the sale and sexual exploitation of children, including child prostitution, child pornography and other child sexual abuse material, above n23, para 30.

26 Kathleen Sloan, ‘Trading on the Female Body: Surrogacy, Exploitation, and Collusion by the State Government’ The Journal of the Witherspoon Institute (online) 24 April 2017 < https://www.thepublicdiscourse.com/2017/04/19109/html>.

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UNSW | Master of Human Rights Law and Policy 2019 | Essay submitted by Sonja Duncan where employment opportunity is as stratified by race as it is in the United States, it is not irrational to think that black and Hispanic women would often agree to be gestational surrogates for a lower fee than would white women’.27 It follows from these examples that exploitation of surrogates is not necessarily restricted to poorer, developing nations, but rather is a very real issue for marginalised and disadvantaged women in developed jurisdictions, including those where surrogacy is legalised.

This widespread prevalence of exploitation highlights the urgent need to address commercial surrogacy at an international level. It calls for the careful regulation, management and monitoring (rather than the prohibition) of an industry sector that is growing exponentially, is rife with corruption and is powered by greed. An international, collaborative conversation and the implementation of globally enforceable regulatory and non-regulatory mechanisms is needed to ensure better protection and reduced exploitation of surrogates.

While the Indian commercial surrogacy industry remained unregulated for two decades, the current regulatory approaches in both Australia and India prohibit domestic commercial surrogacy arrangements. Neither jurisdiction however, addresses or attempts to regulate the ongoing exploitation of vulnerable women who enter commercial surrogacy arrangements either legally or illegally.

An overview of the regulatory frameworks in Australia and India is provided in Part III below.

III REGULATORY FRAMEWORKS GOVERNING COMMERCIAL SURROGACY

A The Indian Regulatory Landscape Regulation of commercial surrogacy in India has changed substantially in recent years. Prior to 2005, there was no regulation of the Indian ART industry, including surrogacy arrangements.

This led to the country becoming one of the most popular destinations for ‘reproductive tourism’, due largely to its relatively low costs, lax regulations and a population of willing

Usha Rengachary Smerdon, ‘Crossing bodies, crossing borders: International surrogacy between the United States and India’ 29 Cumberland Law Review, 15 – 85, 52.

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UNSW | Master of Human Rights Law and Policy 2019 | Essay submitted by Sonja Duncan surrogates.28 In a 2003 paper, Allahbadia and Kaur argued that ARTs in India had ‘slipped through the cracks’ in an otherwise highly-regulated medical system.29 Consequently, India witnessed unregulated and unsupervised growth of surrogacy centres, often serviced by untrained or poorly trained staff.

From 2005, surrogacy in India was regulated by a set of voluntary guidelines issued by the Indian Council of Medical Research (‘ICMR’) and the National Academy of Medical Sciences (‘NAMS)’.30 The guidelines aimed to ‘ensure that ART clinics in India are accredited, regulated and supervised’, and offered services ‘at par with those available anywhere in the world’.31 This included donor clinics, embryo storage and surrogacy services.

As the title suggests, the 2005 voluntary guidelines were not enforceable or justiciable against intended parents, surrogates, clinics or any other industry participant. They did, however provide an endorsement for the establishment and expansion of commercial surrogacy clinics and, according to Gupta,32 promoted the practice of surrogacy in India.

The need for legislative reform of surrogacy in India was highlighted in 2008 by two prominent cases, including the case of Baby Manji,33 which concerned the parental rights of the intended parent with no shared genetic material with the surrogate child. This case was significant for three main reasons. Firstly, it confirmed the legality of commercial surrogacy in India.

Secondly, it promoted extensive debate around surrogacy contracts in India. Thirdly, and importantly for present purposes, it highlighted a lack of transparency and accountability in ART clinics across India.

Following the decision in the Baby Manji case, the ICMR drafted legislation which mirrored the 2005 voluntary guidelines. The Assisted Reproductive Technology (Regulation) Bill 2008 (India) and the Assisted Reproductive Technology (Regulation) Rules 2008 (India) were intended to “provide a national framework for the regulation and supervision of assisted

Izabela Jargilo, ‘Regulating the Trade of Commercial Surrogacy in India’ (2016) Journal of International Business and Law Volume 15, Issue 2 337 – 360, 342.

29 Gautam N Allabadia and Kulvinder Kaur, ‘Accreditation, Supervision, and Regulation of ART Clinics in India - Distant Dream?’ (2003) 20 Journal of Assisted Reproduction and Genetics, 276 – 280, 276.

30 Ministry of Health and Family Welfare Government of India, National Guidelines for Accreditation, Supervision & Regulation of ART Clinics in India, 2005.

31 Ibid, 4.

32 Jyotsna A Gupta, above n14, 43.

33 Baby Mani Yamada v Union of India JT 2008(11) SC 150.2.

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UNSW | Master of Human Rights Law and Policy 2019 | Essay submitted by Sonja Duncan reproductive technology and matters connected therewith or incidental thereto”.34 Despite the apparent urgent need for regulation, neither the Bill nor the Rules were adopted by the Indian Parliament.

In 2012, the Indian Ministry of Home Affairs issued new visa rules that stipulated a number of conditions, including a bar on single people, unmarried couples, or gay couples from receiving a medical visa for commissioning surrogacies in India. Accordingly, a visa would be issued subject to the condition that “[t]he foreign man and woman are duly married and the marriage should have [been] sustained at least for two years”.35 However, comprehensive legislation regulating surrogacy and ART clinics was not enacted at that time.

Following two further revisions, the Surrogacy (Regulation) Bill 2016 (India) was passed in December 2018.36 The Bill ‘ensures’ regulation of surrogacy in India through the formation of a National Surrogacy Board, State Surrogacy Boards and appointment of regulatory authorities.

The Bill prohibits commercial surrogacy, allowing only altruistic surrogacy by infertile Indian couples, legally married for at least five years. Additionally, foreigners, non-resident Indians and persons of Indian origin are banned from seeking surrogate mothers in the country.

Homosexuals, single parents, and live-in couples are also not allowed to have children via surrogacy in India.37 By disallowing foreigners, non-heterosexual couples and individuals from accessing ART services, far from regulating it, the Bill presents a very real danger of pushing the surrogacy industry underground. This will be discussed further in Part V below.

Anita Browning, ‘As the stork flies from India to Australia: Intercountry commercial surrogacy arrangements’ (2011) 107 Precedent, 22 – 27, 24.

35 Tariq Ahmed, ‘India: Draft Legislation Regulating Assisted Reproductive Technology Published’, Global Legal Monitor (online) 2 November 2015 <http://www.loc.gov/law/foreign-news/article/india-draft-legislation-regulating-assistedreproductive-technology-published/>.

35 Loan Skene, ‘Why legalising commercial surrogacy is a good idea’, The Conversation (online) 10 December 2012 <https://www.theconversation.com/why-legalising-commercial-surrogacy-is-a-good-idea-11251.html> 36 Surrogacy (Regulation) Bill 2016 (India) accessed at <https://www.prsindia.org/uploads/media/Surrogacy/Surrogacy%20(Regulation)%20Bill,%202016.pdf>.

37 Avantika Ghosh, ‘Surrogacy Bill, then & now’ The Indian Express (online) 21 December 2018 <https://www. indianexpress.com/article/explained/surrogacy-bill-then-now-5503047/>.

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UNSW | Master of Human Rights Law and Policy 2019 | Essay submitted by Sonja Duncan B The Australian Regulatory Landscape In Australia, surrogacy is regulated through state and territory legislation. While engaging in commercial surrogacy is illegal in all Australian jurisdictions, altruistic surrogacy is expressly permitted in all jurisdictions (except the Northern Territory where the law is silent).

Regrettably, regulatory requirements vary across state borders.38 This has led to inconsistencies with respect to who is permitted to become a parent to a surrogate child, and how approval is sought and granted to the intended parents. While same sex couples are allowed to be the parents of a surrogate child in the Australian Capital Territory, single people are prohibited.39 In Queensland and Tasmania, intended parents may be married, de-facto (including same-sex couples) or single.40 In Victoria, all surrogacy arrangements must be approved by a Patient Review Panel and the intended parent must be infertile, unable to carry a pregnancy or give birth or there is a likely medical risk to the mother or baby if a pregnancy occurs.41 As such, single women and women in married, de facto or same-sex relationships who meet these criteria can apply to enter into an approved surrogacy arrangement. By definition, this would exclude male same-sex couples. This is also the case in Western Australia, where the right to become the parent of a surrogate child is contingent on approval from the Western Australian Reproductive Technology Council. In South Australia, only married or de facto heterosexual infertile couples are able to enter surrogacy arrangements.42 Much of the advice and regulatory framework around commercial surrogacy provided by the Australian government relates to the citizenship of the child and issues of parental custody. The Australian legislative response to surrogacy is premised largely on the interests of the child and does not consider exploitation of surrogates. According to the Department of Home Affairs,43 â&#x20AC;&#x2DC;extreme cautionâ&#x20AC;&#x2122; is exercised to ensure that citizenship laws are not misused in cases of transnational surrogacy arrangements to circumvent adoption and other child welfare laws.

38

House of Representatives Standing Committee on Social Policy and Legal Affairs, Parliament of Australia, Surrogacy Matters: Inquiry into the Regulatory and Legislative Aspects of International and Domestic Surrogacy Arrangements, April 2016, v.

39 Ibid, 3.

40 Ibid, 3.

41 Ibid, 4.

42 Ibid, 4.

43 Department of Home Affairs, Government of Australia, International Surrogacy Arrangements (12 December 2018) <https://immi.homeaffairs.gov.au/citizenship/become-a-citizen/by-descent/international-surrogacy-arrangements>.

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UNSW | Master of Human Rights Law and Policy 2019 | Essay submitted by Sonja Duncan As such, it is illegal in some Australian states and territories for residents to make commercial surrogacy arrangements outside of Australia. High penalties and gaol terms are included in the Parentage Act 2004 (ACT), the Surrogacy Act 2010 (NSW) and the Surrogacy Act 2010 (Qld).

Though aimed at preventing exploitation of potential surrogates and preventing commoditisation of the child, the prohibitions restrict couples that do not have a willing altruistic surrogate mother. Furthermore, despite the penalties and gaol terms in some states and territories, Australians account for 25 percent of all international surrogacy arrangements.44 Issues of exploitation are considered in the 2016 Inquiry into the regulatory and legislative aspects of international and domestic surrogacy arrangements.45 Recommendation 7 of the Inquiry provides that the Australian Government establish an interdepartmental taskforce to address issues of offshore surrogacy arrangements. While the primary aim of the taskforce would be to provide advice on protecting the rights of the child, issues of exploitation of the birth mother would also be considered: While not condoning Australiansâ&#x20AC;&#x2122; use of offshore surrogacy, the aim of the taskforce should be to ensure that where the regulatory, economic or social conditions in a particular jurisdiction give rise to an increased risk of exploitation or rights violations, Australians entering into or facilitating surrogacy arrangements in that jurisdiction are made aware of those risks, and are subject to a more stringent investigative process to ensure that the rights of the birth mother and the child have not been infringed.46 The Inquiry recommends that commercial surrogacy remain illegal in Australia and that a model law be developed that facilitates altruistic surrogacy arrangements across all states and territories in Australia. 47 This approach will only continue to promote the international trade in commercial surrogacy in jurisdictions that offer little protection or support to vulnerable surrogates.

While there is strong evidence that the international trade in surrogacy exploits poor women, it cannot be assumed that legalising commercial surrogacy in Australia would not also result in exploitation of vulnerable women in Australia. It would, however, reduce the prevalence of

44

Should commercial surrogacy be legal in Australia? Sydney Morning Herald (online) 14 May 2015 <https://www.smh.com.au/opinion/should-commercial-surrogacy-be-legal-in-australia-20150514-gh1ead.html> 45 Above n 38, xiii.

46 Ibid, xiv.

47 Ibid, xi.

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UNSW | Master of Human Rights Law and Policy 2019 | Essay submitted by Sonja Duncan Australian residents participating in an international ‘reproductive tourism’ industry that is as corrupt as it is exploitative. By legalising commercial surrogacy in Australia and other developed and developing nations, and enforcing strict national and international regulatory controls, along with non-regulatory management frameworks, surrogates everywhere would enjoy better protection and less exploitation.

It is naïve to expect that the billion-dollar global commercial surrogacy industry will shut down as a result of prohibition or criminalisation. The unfortunate reality is that banning commercial surrogacy in both developed and developing nations will result in potentially worse exploitation and treatment of surrogates. There is no doubt that the surrogacy industry will continue to thrive in an unregulated environment, threatening the lives and livelihoods of poor and vulnerable surrogate workers globally.

A wholesale review of Australia’s family law regime, which encompasses surrogacy laws, is expected to be finalised later this year. It remains to be seen whether Australia’s prohibition on commercial surrogacy will be re-explored and whether arguments put forward by leading feminist legal theorists in support of legalising and carefully regulating commercial surrogacy will inform the review.

IV FEMINIST LEGAL THEORY AND COMMERCIAL SURROGACY

Considering the Australian and Indian regulatory approaches to commercial surrogacy through the lens of three competing schools of feminist legal theory: radical, liberal and antiessentialist provides useful insight into alternate regulatory frameworks.

A Radical feminist perspectives Radical feminist legal theorists would argue against commercial surrogacy in both developed and developing nations on the basis that surrogacy, by its very nature, is exploitative and coercive. Any legal system supporting commercial surrogacy would be viewed as a mechanism for the perpetuation of male dominance and the gender division of labour.

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UNSW | Master of Human Rights Law and Policy 2019 | Essay submitted by Sonja Duncan One of the main tenets of feminism is that women should not have their destiny controlled by their biology.48 As Pande argues: When reproducing bodies of women become the only source, requirement, and product of a labor market, and fertility becomes the only asset women can use to earn wages, women essentially get reduced to their reproductive capacity, ultimately reifying their historically constructed role in the division of labor.49 Lamb proposes that three principles are at play in a feminist assessment of surrogate parenting:50 a. that the woman has the right to control her own fertility; b. that the woman should not be objectified; and c. that a woman should have control over her own body.

Lamb argues that Indian surrogates do not have autonomy in a contractual regime that stipulates medical treatment and takes away power and choice from surrogate mothers.51 Radical feminists would consider the surrogacy contract alone as ‘an unacceptable encroachment on the surrogate’s autonomy and a violation of her basic rights’.52 Becker supports this view, acknowledging that renowned radical feminist legal theorist Catherine McKinnon, whose dominance approach centres on power imbalances, ‘is herself hostile to paid surrogacy and to the enforcement of paid surrogacy contracts’.53 According to Becker, McKinnon regards enforceable surrogacy contracts as a form of ‘male control over women’s bodies’.

Gupta adds that, under patriarchal capitalism, women are seen as property and their bodies are owned by others: In biomedicine, the female body is a factory within which women are laborers under the supervision of the physician-manager. Within this factory model of reproduction, it Lori B Andrews, quoted by Katherine R Lieber, ‘Selling the Womb: Can the Feminist Critique of Surrogacy be answered?’ (1992) 68 Indiana Law Journal, 205 – 232, 211.

48

49

Amrita Pande, above n20, 166.

Susan Lamb, ‘The Ethics of Surrogacy – A Framework for Legal Analysis Family and Conciliation’ (1993) Courts Review, Vol. 31, No. 4, October 1993 401 – 424, 411.

50 51

Ibid, 411.

52

Ibid, 412.

53 Mary E. Becker, ‘Four Feminist Theoretical Approaches and the Double Bind of Surrogacy’ (1993) 69 Chicago Kent Law Review 303 – 311.

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UNSW | Master of Human Rights Law and Policy 2019 | Essay submitted by Sonja Duncan is the physician, not the woman, who is in control. Women deliver their bodies completely to the technology and to reproductive scientists, some even say they feel as though their body belongs to someone else.54 Pande, in arguing against the Assisted Reproductive Technology Regulatory Bill 2010 (India), acknowledges that even the right to demand abortion and foetal reduction is given to the intended parents, and the surrogate is mandated to comply with decisions ‘made by others about her body’.55 The 2016 submission by the Australian Human Rights Commission (‘AHRC’) to the Inquiry into the Regulatory and Legislative Aspects of Surrogacy Arrangements discusses the rights of surrogates.56 These rights include the ability of surrogates to make free and informed decisions about whether to become a surrogate. According to the AHRC, this requires that sufficient regulatory protections be in place to protect surrogates from exploitation and that the regulations consider power imbalances. This is particularly important where: A prospective surrogate mother may be induced through the promise of payment to enter into an arrangement without sufficient protections for her or for the child born as a result of the arrangement. It may be that she would not have agreed to such an arrangement if those power imbalances did not exist.57 Radical feminist legal theorists would argue that regulating an industry that is based almost entirely on socially constructed power imbalances would not be effective in managing or eliminating the exploitation of surrogate mothers. Rather, they would argue for a total ban of commercial surrogacy – both domestically and internationally. Penalties for participating in transnational surrogacy arrangements would no doubt be supported and endorsed by radical feminist legal theorists.

54

Jyotsna A Gupta, above n12, 39.

55

Amrita Pande, above n20, 178.

56

Australian Human Rights Commission, Submission 67 to House of Representatives Standing Committee on Social Policy and Legal Affairs, Parliament of Australia, Surrogacy Matters: Inquiry into the Regulatory and Legislative Aspects of International and Domestic Surrogacy Arrangements, 17 February 2016, 5.

57

Ibid.

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UNSW | Master of Human Rights Law and Policy 2019 | Essay submitted by Sonja Duncan B Liberal feminist perspectives Conversely, liberal feminist legal theorists argue that commercial surrogacy provides economic opportunity, and that women should be free to enter into contracts and be treated as an ‘autonomous moral and economic agent’.58 Lamb recounts that surrogacy has historically been viewed alongside other reproductive technologies as ‘capable of freeing women from the tyranny of their biological destinies’.59 She proposes that some feminists would endorse surrogacy, arguing that it would in some way empower women who may choose to enter into surrogacy contracts.

Fellowes disagrees with the liberal feminist endorsement of surrogacy, stating that even if the choice is autonomous, there may still be exploitation given the imbalance of bargaining power and the nature of the service.60 Certainly, in an Indian context, the scope for choice is debatable.

Jaiswal states simply: ‘It is questionable whether the liberal feminist argument that supports surrogacy as women’s autonomous choice applies to the Indian surrogates’.61 Pande writes that while those in support of commercial surrogacy emphasise the ‘element of choice’, most of the surrogates she interviewed in her study indicate that they have no choice.62 In the words of one Indian surrogate: This surrogacy is not ethical – it’s just something we have to do to survive. When we heard of this surrogacy business, we didn’t have any clothes to wear after rains – just one pair that used to get wet – and our house had fallen down. What were we to do?63 What is understood as ‘autonomy’ is controversial.64 Gupta argues that the liberal feminist language of self-determination and empowerment is used by reproductive service providers to justify a woman’s decision to undertake commercial surrogacy. Gupta quotes Eisenstein in stating that the ‘capitalist system is exploiting and making use of feminist ideas and women’s

Shalev, ‘Birth Power: The Case for Surrogacy’ (1991) Yale University Press.

Lamb, ‘The Ethics of Surrogacy – A Framework for Legal Analysis Family and Conciliation’ (1993) Courts Review, Vol. 31, No. 4, October 1993 401 – 424, 412.

60 Melanie Fellowes, above n15, 249.

61 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 Gender, Technology and Development, 1 – 28, 13.

62Amrita Pande above n20, 134.

63 Ibid, 134-135.

64 Jyotsna A Gupta, above n14, 45.

58 Carmel 59 Susan

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UNSW | Master of Human Rights Law and Policy 2019 | Essay submitted by Sonja Duncan labor’,65 and cites a number of authors regarding the ‘myth of choice’ and women’s autonomy in relation to commercial surrogacy in India.66 The liberal feminist notion that women should have the right to choose whether or not to enter commercial surrogacy arrangements is, in theory, attractive. However, as has been demonstrated, many surrogates do not freely choose to participate in the industry. When women lack access to other sources of income their choices are not wholly their own. The liberal feminist endorsement of commercial surrogacy is unresponsive to externalities like education, income and culture sensitivities. The wholesale promotion of women’s choice neglects a deeper consideration of how the practice of surrogacy affects different groups of women. Such considerations are central to anti-essentialist feminist legal theory.

C Anti-essentialist feminist theory Anti-essentialist theory directs attention to broader socio-cultural and situational issues with regard to power imbalances and women’s choice. It proceeds on the basis that every perspective is socially situated and there is no universal women’s voice on issues like surrogacy.

In India, even where the decision to enter commercial surrogacy is a considered decision, it is generally made in the context of limited other possibilities, poverty and patriarchal social and family structures. Official responses to controversial issues such as commercial surrogacy are shaped and defined by cultural sensitivities and ethical concerns.67 Attitudes to surrogacy are defined not simply by individual perceptions but also by cultural preferences and expectations.

As such, the anti-essentialist perspective provides for consideration of different legal frameworks across different socio-political and cultural landscapes. In support of this, Wilkinson provides a range of regulatory options, from criminalising all forms of surrogacy to a more ‘laissez-faire’ approach under which surrogacy contracts are governed only by the general principles of contract law.68 Fellows argues that it would be better to reduce exploitative conditions by establishing adequate protection and safeguards for the commercial

65

Hester Eisenstein, quoted by Jyotsna A Gupta, above n14, 45.

Jyotsna A Gupta, above n14, 46.

67 Susan Lamb, ‘The Ethics of Surrogacy – A Framework for Legal Analysis Family and Conciliation’ (1993) Courts Review, Vol. 31, No. 4, October 1993 401 – 424.

68 Stephen Wilkinson, ‘The Exploitation Argument Against Commercial Surrogacy’ (2003) 17 Bioethics, 169 – 187, 184.

66

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UNSW | Master of Human Rights Law and Policy 2019 | Essay submitted by Sonja Duncan surrogate and others who are party to the arrangement, rather than banning commercial surrogacy outright.69 As will be seen below, the anti-essentialist approach to regulation of commercial surrogacy, which takes into account socio-cultural and situational considerations, is the most appropriate basis from which to regulate commercial surrogacy within different jurisdictions. However, it is questionable whether state-specific regulatory approaches will effectively prevent exploitation of surrogate mothers in a highly globalised, mobile marketplace. What is needed instead is a model international approach founded on accountability, independent review and transparency in reporting that reflects the principles of fair trade and a living wage throughout the supply chain.

V A NEW APPROACH TO REGULATION

Although there is widespread agreement about the problems posed by surrogacy, there is nevertheless no consensus as to the best way forward.70 If there is any consensus among commentators, it is that the absence of clear and comprehensive laws addressing surrogacy can lead to increased unregulated commercial surrogacy arrangements with accompanying exploitative practices.71 This has certainly been the case over the past two decades.

Just like other forms of labour exploitation, commercial surrogacy cannot be addressed by individual countries and governments in isolation. As Gupta highlights, the practices and policies in one country influence those in others.72 Differences in legislation between developed and developing nations only encourages â&#x20AC;&#x2DC;reproductive bio-crossingsâ&#x20AC;&#x2122; to countries with minimal governance and greater potential for exploitation and corruption.

Without a coordinated global response, international commercial surrogacy networks will move to new jurisdictions as laws change. According to Pande, the Indian governmentâ&#x20AC;&#x2122;s decision to ban commercial surrogacy will not only impact the future of surrogacy in India, but

69 Melanie

Fellowes, above n15, 249.

Ibid, 270 71 Report of the Special Rapporteur on the sale and sexual exploitation of children, including child prostitution, child pornography and other child sexual abuse material, above n23.

72 Jyotsna A Gupta, above n14, 47 70

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UNSW | Master of Human Rights Law and Policy 2019 | Essay submitted by Sonja Duncan in other parts of the world.73 She provides examples of surrogacy operations in Thailand and Ukraine that openly advertise their competitive rates and flexible laws.

Further, a ban on commercial surrogacy in India would push the industry underground, ‘making surrogates all the more vulnerable to exploitation and malpractice’.74 Pande draws attention to the impact of banning commercial surrogacy on the experience of women surrogacy workers and quotes one worker who indicated that Indian women would continue to work as surrogates, regardless of the government’s decision: If the government declares this to be a bad thing, we will do this in hiding, like prisoners, ashamed and weeping over our misfortune.75 Commercial surrogacy is, in truth, a global problem that requires a globally coordinated solution. In practice, in-vitro fertilisation and embryo transfer may happen in one jurisdiction and the birth in another. The intending parents may come from a third location. As such, issues related to commercial surrogacy cannot be resolved ‘as a national issue or by closing borders’.76 The need for the development and implementation of international rules and standards, supported by enforceable national legal frameworks, is clear.

In this context, Pande calls for an ‘international dialogue’,77 and a move towards ‘applying fair trade principles to international surrogacy’ to ensure the economic benefits of surrogacy are equally shared and ‘beneficial to those who are the weakest in the supply chain’.78 An international convention regulating surrogacy practices would serve to rein in the influences of cross-border surrogacy arrangements and reduce the likelihood of coercion of either the surrogate or the intended parent.79 A surrogacy convention would also go some way to ensuring that signatory states are no longer able to ‘turn a blind eye’ to residents leaving their borders to seek international surrogacy arrangements. Mohapatra proposes that countries that ban commercial surrogacy should have a plan of action ‘when (not if)’ residents ignore their ban

73

Amrita Pande, above n20, 180 Jaiswal Sreeja, above n61, 20 75 Amrita Pande, above n20, 180 - 181 76 Report of the Special Rapporteur on the sale and sexual exploitation of children, including child prostitution, child pornography and other child sexual abuse material, above n23.

77 Amrita Pande, above n20, 176 78 Casey Humbyrd, quoted in Amrita Pande, above n20, 176 79 Seema Mohapatra, ‘Adopting an International Convention on Surrogacy – a Lesson from Intercountry adoption’ (2015) 13 Loyola University Chicago International Law Review, 25 – 55, 37.

74

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UNSW | Master of Human Rights Law and Policy 2019 | Essay submitted by Sonja Duncan and that such plans could be delineated in an international convention. In this way, domestic law on commercial surrogacy could also be ‘strengthened and made clearer’.80 Given that the convention on inter-country adoption took over fifty years to negotiate, development of an international convention on surrogacy is hardly a short-term solution to the pressing international issue of commercial surrogacy. In the meantime, developed countries like Australia should revisit their prohibition of commercial surrogacy domestically. Legalising commercial surrogacy in developed countries and restricting the capacity for cross-border surrogacy would discourage individuals and couples in developed countries to search for surrogates abroad.81 Allowing a regulated form of commercial surrogacy in Australia would enable a legal framework to be put in place which not only reduces the amount of exploitation occurring overseas, but also respects the rights of the intended parent(s) and the rights of the child.82 Consideration should be given to the establishment of regulatory bodies similar to those in the nursing and medical professions ‘responsible for licensing fertility clinics, maintaining a register of surrogates, determining a fair rate of compensation and ensuring compliance with a code of ethics’. Under this model, the surrogate would retain the rights to ‘bodily integrity’ and would have the right to refuse unreasonable demands and ‘be protected from practices that compromise her safety’.83 Walker and Zyl propose that registration of surrogates would protect surrogates from coercion and provide an environment where women could disclose feeling pressured or reluctant. Under a ‘professional model’ of regulation, both the surrogates and the intended parents would have access to professional support.84 Development of clear international regulatory approaches that are implemented globally and regulated by independent (but well-resourced) bodies such as Fair Trade could go some way

80

Ibid, 26 Amrita Pande, above n20, 174.

82 Ronli Sifris, ‘The 2015 Human Rights Report – Why Commercial Surrogacy Should be Legalised’ Castan Centre for Human Rights Law (online) 26 May 2015 <https://castancentre.com/2015/05/26/why-commercial-surrogacy-should-belegalised/>.

83 Ruth Walker and Liezl van Zyl, ‘A new way to regulate surrogacy to give more certainty to all involved’, The Conversation (online) 21 September 2017 <https://theconversation.com/a-new-way-to-regulate-surrogacy-to-give-morecertainty-to-all-involved-83868>.

84 Ibid.

81

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UNSW | Master of Human Rights Law and Policy 2019 | Essay submitted by Sonja Duncan to reducing exploitation of vulnerable and marginalised women who may ‘choose’ surrogacy as a way to escape oppression and poverty. In the words of Jenni Millbank, ‘a more considered, and carefully researched, solution is called for.’85 VI CONCLUSION

There is currently no clear accord about whether to regulate surrogacy domestically or internationally. This essay has argued for the international legalisation and regulation of commercial surrogacy as a solution to a truly international problem.

The exploitative practices inherent in transnational commercial surrogacy cannot be resolved at a national level. Sweeping bans on commercial surrogacy, such as those recently implemented in India, are a naïve attempt to regulate an inherently corrupt and exploitative industry. The likelihood of commercial surrogacy practices being pushed underground, or into other jurisdictions, resulting in even worse exploitation of women is very real when one considers other industry sectors such as the sex trade. It is not enough to merely shift the forum in which exploitation occurs. Commercial surrogacy is an international problem that requires a consistent international response to address issues of exploitation and foster an industry that is fair, resourced and empowering for surrogates globally.

Sloan proposes the formation of an international network of feminists and their allies who ‘grasp the reality of exploitation at the heart of the surrogacy industry’, to build alliances and ‘fight to protect the human rights of at-risk women who are being targeted and endangered by those who would use their reproductive capabilities for their own profit.’86 Rather than ban commercial surrogacy outright, this essay has argued for a regulated international approach to the management of commercial surrogacy beyond treaties or conventions that require nation states to be signatories. In reviewing the various options for management of commercial surrogacy, the essay proposes an internationally managed fairtrade approach that incorporates licencing of commercial surrogacy operations globally, independent regular review and well-resourced enforcement bodies.

85

Jenni Millbank, above n2, 488.

86

Kathleen Sloan, above n26.

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UNSW | Master of Human Rights Law and Policy 2019 | Essay submitted by Sonja Duncan Stricter regulation, enforced at an international level, combined with transparency in reporting by all involved in commercial surrogacy operations, would help to eliminate the exploitation of surrogates working in ‘reproductive supply chains’. While there may well be difficulties in getting different nation states with diverse cultures, politics and socio-economic status to agree on a regulatory approach to commercial surrogacy, there is no doubt that the issue deserves a global conversation.

Ultimately, the policies and regulations adopted will be informed by the lens through which surrogacy is viewed.87 When viewed through the lens of morality, surrogacy is seen as immoral and undesirable; as an industry that should be prohibited through a formal ban. Viewed through the lens of exploitation, it is an industry that requires formal regulation to better manage its exploitative potential.

Viewed through the lens of empowerment, legalised and carefully regulated commercial surrogacy arrangements may well be a form of poverty alleviation that support and liberate women and reduces their exploitation in an otherwise unregulated reproductive labour market.

Drawing on learnings from the sex work industry, ‘the abolitionist tendency can only be calamitous for women, whether in sex work or in commercial surrogacy’.88

Sonja Duncan, April 2019

87 88

Amrita Pande, above n20, 171 Ibid, 172 Page | 21