1 Assisted Reproductive Technologies: Issue and Context

“… In no other area of human life, is the personal as political as in the sphere of human reproduction” (Gupta 2000: 55).

As a site of inquiry, reproduction is a late entrant in the social sciences. Reproduction has historically been represented as a strictly biological process, lodged firmly in the domain of the private and the familial. Much of the credit for destabilising this notion, in addition to dismantling similar “sealed-off” ways of looking at the body, goes to feminist thought (Rapp 2001). Feminists have challenged the axis of the binary, along which dualisms of male/female, mind/body, culture/nature, production/reproduction are imagined and organised (Ortner 1972). They challenge both – first, the credibility of positing such a duality and, second, the higher value accorded to the first half of each binary. Reproduction is now better understood as constituted in and through a range of structures and processes, affected in different ways by the power relationships they re/produce.

Technologically assisted reproduction is not a new phenomenon. Yet, the development and consolidation of ARTs as a distinct group of procedures designed to assist conception by correcting or circumventing infertility is relatively recent. The world’s first test-tube baby, Louise Brown, was born in Lancashire, UK, in 1978, under the “care” of doctors Robert G Edwards and Patrick Steptoe; for this, Edwards was awarded the Nobel Prize in Physiology/Medicine in 2010. Today, ARTs include procedures

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like intra-uterine or artificial insemination (IUI), in-vitro fertilisation (IVF), popularly known as test-tube baby technology, and more recent additions like intracytoplasmic sperm injection (ICSI), specifically for male factor infertility, embryo freezing, etc. Surrogacy, which uses ARTs, although in itself it is an arrangement and not a technology, also falls within the ambit of ARTs.

In the debates around gender and technology, a rejection of technology as inherently patriarchal continues to be pitted against the strategy to enhance women’s access to and control over technology. While proponents of the former line of thought may take the view that reproduction is a “natural” process over which men (seek to) exert control through technological intervention (Corea 1985), proponents of the latter may see reproductive technology as bearing the potential to liberate women by conquering reproductive biology, which has been the fundamental source of women’s relegation to the private, domestic sphere of family (Firestone 1971). Groups like Feminists International Network of Resistance to Reproductive and Genetic Engineering (FINRRAGE) believe that capitalism and patriarchy are embedded in the design and application of these technologies, and that “these technologies then, at their core, are not only sexist, but racist, classist and deeply eugenic and serve as old and new instruments of population control” (Klein 2008: 158). Still others propagate a more balanced view, and warn against technological determinism that overemphasises the potential in technology for benefit or harm (Stanworth 1987). This approach allows us to bring into focus the material context of the operation of ARTs, and related issues of equity, access and social justice.

ARTs have been criticised for being patriarchal and capitalist, and for accommodating rather than questioning power relations that equate motherhood with womanhood. An apparent abundance of choice, in this case vis-à-vis reproduction, does not necessarily spell progress. The choice to abort a female foetus or to “design” your baby’s genes is not innocuous and empowering. New reproductive and medical technologies – the wider umbrella that includes ultrasound, c-section, ARTs and so on – are often harnessed to the service of institutions like hetero-patriarchy, marriage, the medical market, etc, through their overuse or misuse. Through the use of ARTs, reproduction (and through reproduction, kinship) is up for destabilisation and re-definition. Yet, their practice reveals that ARTs overwhelmingly reinforce and restore the hetero-patriarchal family, by reinstating the linear progression of marriage and childbirth. The probability, however low, that ARTs may confer biological parenthood, however limited, is most often their raison d’etre, their unique selling point (USP). Socially, the value accorded to biological parenthood within heterosexual marriage is far superior to the value accorded to voluntary childlessness, adoption or alternative family structures. As such, ARTs are overwhelmingly restabilising the traditional family structure, under threat from infertility, while nonetheless retaining the potential – realised also, albeit in fewer cases – to subvert the same.

Since ARTs bypass rather than cure infertility, and have low success rates, many also regard them as a “hit-and-trial” technology. The Indian Council for Medical Research (ICMR), in line with the World Health Organisation (WHO), propounds the definition

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of infertility as “the failure to conceive after at least one year of unprotected coitus”. This definition is a revised version of what existed earlier, till 1975 – up to five years of unprotected sex without conception were grounds for infertility. WHO brought this figure down to two years in 1975, and in 2005, down further to one year (Sama 2006:10). As the number of years decreases and the minimum requirement to declare a case as that of infertility expands, more and more people are incorporated into the definition of infertility, thus medicalising their situation of childlessness into a condition in need of treatment.

Multiple Causes and Solutions

While studies (Bhayana 2010) do show that there is a rise in childlessness in Indian couples, and that the highest rates of infertility are reported in developing countries, yet, childlessness is not necessarily due to infertility. And the problem of infertility has multiple causes and solutions; to promote ARTs alone as a quick technological-fix is severely inadequate. Infertility can be a result of untreated sexually transmitted infections (STIs) and pelvic infections, tubal factors, unsafe abortions and poor maternal healthcare, malnutrition, anaemia and other dietary deficiencies, as well as factors like lifestyle, environmental pollution and occupational hazards. India’s public health system does not offer adequate preventive, curative and counselling services for infertility. In fact, infertility has not been a priority area for public health in India (Widge and Cleland 2009). Nonetheless, a few public hospitals have started offering ARTs, although overwhelmingly, these technologies continue to be available only in the private sector. As such, what remains missing is a holistic and comprehensive approach to healthcare that can centre-stage the social determinants of health.

With the move towards liberalisation, privatisation and globalisation, the priorities of the Indian state have shifted from promoting the public good to promoting private interests. This raises the very legitimate concern that healthcare is being transformed into a commercial commodity like any other, thus restricting access by the poor. India is being promoted as a global medical tourism destination; a joint report by the Confederation of Indian Industry (CII) and McKinsey and Company projects an annual growth of 30% in medical tourism in India, which could become a $1-2 billion business by 2012 (Netscribes 2008). The Indian state promotes medical tourism by providing incentives, loans, subsidies, even “medical visas”, and packages healthcare with other Indian “exotica”, such as traditional therapies of yoga, ayurveda, naturopathy, homeopathy, etc. The National Health Policy 2009 also actively promotes medical tourism, and effectively legalises Public Private Partnerships (PPPs), providing state subsidies towards the same. ARTs are the latest addition to a long list of services – kidney transplant, cardiac surgery, cancer treatment, eye treatment, joint replacement, paediatric care, cosmetic surgery, etc – that India is selling to the world, with the comparative advantage of lower costs, English-speaking staff, worldfamous tourist destinations, advanced medical care and technology, and an unregulated environment. In the case of ARTs, an unregulated environment is particularly attractive because laws in many countries prohibit specific procedures, exclude certain

Objectification and Personification

Thus, the reproductive materials and organs, on the one hand, have assumed an independent and individualised existence and have become the private property of the person selling them. On the other hand, the physical, social and cultural attributes of the donor affect the price of the reproductive material. Therefore, both objectification and personification are parallel processes at play here (Mukherjee 2008). Further, the movement of reproductive material and processes follows “modern routes of capital” flow – from “South to North, from third world to first world, from poor to rich bodies, from black and brown to white bodies, from young to old bodies, from productive to less productive…bodies” (Scheper-Hughes 2000). Of couples who travel for in-vitro fertilisation, several use the oocytes of women or surrogates of the host country. This practice has the potential to be unethical and exploitative as the seemingly free flow of people, capital, goods and services takes place within global relations that are characterised by stark economic inequalities. Not only do unresolved questions of access to these expensive technologies for the majority in third world countries remain, there are health and other implications for economically vulnerable women from these countries who participate in ART programmes. It is these processes and structures – within which trade in reproductive material operates – that raise significant questions for theory, praxis and policy.

The relationship between reproductive technology and its end-user is mediated and determined by gender, and other axes of power like caste, class, religion and sexuality. The growth of the market for ARTs and commercial surrogacy in India is outpacing efforts to address related ethical, legal and social concerns.

Medicalised abuse, premised on and propelled by the understanding that women will endure anything to be pregnant, to be “whole”, formed the basis of standard treatment in the new and unregulated market regimes; yet, ARTs were under-researched and under-addressed in the Indian context.

Research findings1 have highlighted the fact that ARTs were promoting and consolidating the idea of motherhood as women’s destiny, and capitalising on the stigma and trauma of childlessness within marriage. Within this logic, alternative family formations, such as in(voluntary) childlessness were seen as socially invalid, and adoption was seen as a last resort, and not as an equal option. In the case of gamete donation, users and providers alike sought “desirable” characteristics, such as fair skin, and in some cases, even a “higher” caste background. Some couples were anxious that the child should look like it was their own biological child, “born out of wedlock” and not through artificial means. In either case, providers and users were “choosing” traits that were socially valued or conformist, thus acting on eugenic tendencies and social prejudices. Users’ narratives revealed a mentally, physically and economically exhausting treatment process, given the high costs and low success rates of procedures. The treatment process had implications for women users, several of whom revealed that undergoing ARTs had disrupted their daily routine, hindered their work – both professional and domestic – and even medicalised their sex lives. Further, processes of counselling and informed consent were found to be inadequate, and many women were not given informed consent forms to sign. Providers were also found to be misrepresenting success rates of procedures to users, quoting the embryo implantation or pregnancy rate, rather than the live birth or take-home-baby rate as the success rate. Striking also was the number of ART cycles women were undergoing in their quest for a biologically related child. These technologies did not appear to be isolated medical “treatments”; they seemed to be part of a larger business, which we know now has grown into a veritable “fertility industry”. Also, ART provision in India appeared to be shifting, spreading from metropolitan to smaller cities, with referral chains across cities, sometimes even states.

Further research has revealed that stigmatisation and ostracism continue to mark the experience of infertility (disproportionately so for women), with misconceptions surrounding ARTs often forcing couples to keep their “treatments” a secret, sometimes even from family members, and to travel outside their place of residence, to maintain anonymity. Despite the high and many hidden costs – such as cost of travel, accommodation, medication and tests, as well as loss of wages – of ART treatment, users of these technologies come from different classes, with several who are willing to push the limits of their affordability to fulfill their desire for a biologically-related child. There is also inter-state disparity in ART provision. The extent of the growth of the ART industry has not been uniform across cities, districts or states, with different areas displaying differential growth. Further, while clinics are situated in predominantly urban areas, they are also reaching out to users in rural areas and in different cities and states. The fertility industry comprises a range of stakeholders, including players from both private and public tourism agencies,

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private healthcare establishments, consultancy agencies, law firms, and state and central governments. With the increasing globalisation of medical services, this range cuts across geographical boundaries and now includes actors stationed in different countries. More and more, the ART industry is deploying common strategies to bolster the demand for these technologies. These measures include older practices like inflating success rates and undertaking aggressive advertising – such as attractively designed websites, brochures, street hoardings (including in strategic places like near adoption agencies), advertisements on local cable channels, bus stops, walls, etc – as well as newer practices like subsidised camps for infertility diagnosis, and schemes like discounts and money-back offers.

2 Status of Regulation in India

ART clinics are largely run according to the whims, perceptions, compulsions and positions of individual providers. The absence of any legally binding regulatory mechanism continues to be exploited by many clinics. Practices like sex-selection, multipleembryo implantation and inducement of pregnancy in postmenopausal women are taking place. Despite some variations based on education, socio-economic background and access to alternative sources of information like the internet, most users have scant, inadequate, and piecemeal information about their “treatment’. The process of obtaining informed consent is treated by providers and users alike as a mere technicality, with very little attention being paid to the content of the consent form. Similarly, in many clinics, the important aspect of counselling is addressed superficially, with its scope being limited only to a one-off information-giving about the basics of costs and procedures. Support and therapeutic counselling are largely absent, and as such, the emotional well-being and mental health status of users is severely neglected. That all this is gendered is not surprising: women were almost always much less informed than their partners or husbands about their exact diagnosis and other treatment details.

Further, the ART industry functions without adequate and necessary standards or protocol, both for costs and procedures. Costs quoted vary widely, and often refer only to cost of the procedure itself, and not other related costs. There are no standard “treatment” protocols for ART procedures, which paves the way for the exploitation of users, both physically and economically. While lack of standardisation may be a general characteristic of the private health sector as a whole, the differences in the ART industry

– both within and across different procedures like IUI, IVF and ICSI – are substantial and alarming. Side effects are misrepresented and underplayed, and users may go through several ART cycles, only to repeat the entire process from the start when they switch doctors. To add to this, in the absence of any formal, stateregulated registry of ART clinics and affiliated set-ups, it is difficult to arrive at definite numbers of ART clinics, let alone monitor them for ethical practice. As such, the need for regulation of the ART industry cannot be overemphasised.

The National Guidelines for Accreditation, Supervision and Regulation of ART clinics in India were published in 2005 by ICMR and the National Academy of Medical Sciences (NAMS), India. However, these guidelines are not legally binding. More recently,

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legislation for the regulation of the ART industry has been drafted, and may be proposed in Parliament in the coming months. This is the Draft Assisted Reproductive Technologies (Regulation) Bill and Rules, 2010, which is an updated version of a 2008 draft.

Given the significant ethical concerns raised by the absence of state regulation of the ART industry, it is necessary to foreground women’s health and rights, and to sensitise and familiarise policymakers with ART-related concerns. The growing willingness on the part of the Indian government to develop a national legislation to govern ART provision in India has opened up a space for a gendered critique of the ICMR guidelines.2

Although the state is an important agent of change, the process of proactively engaging with it is far from easy. Governance issues, such as lack of transparency and accountability in preparing the draft bill, are common impediments. In particular, participation from civil society stakeholders such as groups advancing gender rights, child rights, public health rights, etc, has been conspicuous by its absence through the process of drafting and redrafting of the ART Bill. It is one thing to invite comments, and quite another to ensure that all stakeholders have an equal voice from the start of the process.

Initial debates around the issues in ARTs, which took place in the context of the introduction of the draft ART bill 2008 and examined the proposed regulation, raised questions to which the answers were not immediately clear. Even from within a feminist health analysis, differing and often polarising opinions emerged. While many considered these technologies as “here to stay” and sought a “harm minimisation” approach to them, others questioned the very basis of their existence. Procedural and regulation-related issues, such as the upper limit on the number of oocytes that can be retrieved, or the number of IVF cycles or embryo transfers that can be conducted, as well as accreditation and supervision processes, minimum standards for clinics, etc, were debated. In addition, larger political issues were also raised, such as the role and responsibilities of the state, the conflict of rights in ARTs, and notions of motherhood and the question of commercial surrogacy.3

While the revised 2010 draft has added a preamble, and more clauses related to surrogacy, the overall draft falls short in several ways in comprehensively promoting women and children’s health and rights. In fact, the 2010 draft appears to aid the growth of the business of ARTs, and does not pay enough attention to ethical questions. The draft states that ARTs will be available to those couples “having a sexual relationship that is legal in India”. As such, it is not clear if ARTs will be available for gay couples. This needs to be clarified and ascertained from a rights perspective, without any discrimination. The bill does, however, mandate that any foreign couple accessing surrogacy in India must produce a certificate from their country declaring that it permits surrogacy, and will recognise the child/ren born out of surrogacy as its legal citizen/s. While the minimum age for undergoing ARTs is 21, no maximum age is prescribed. Payment to the surrogate is to be made in five instalments, with the majority, that is, 75%, to be made as the fifth and final instalment, following the delivery of the child. In the 2008 draft, payment was

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divided into three instalments, with 75% of the payment to be made in the first instalment itself. The revision, therefore, is highly imbalanced and unfavourable to the surrogate. As such, a more equitable distribution of payment is desirable. The draft permits multiple embryo implantation (up to three), which increases the chances of achieving pregnancy, but also has additional health risks. Further, in case of “exceptional circumstances” such as elderly women, poor embryo quality, etc, this upper limit does not hold. This raises concerns about exposing women already more vulnerable due to their age, etc, to even greater health risks. Many serious health risks (procedural and drug-related, for both the woman and the child) need to be acknowledged, researched and mentioned in the consent form.

The bill mentions that the commissioning parent(s) shall ensure that the surrogate mother and the child she delivers are “appropriately” insured; while this is indeed necessary, more elaboration is required on the nature and extent of insurance that will be provided, particularly with regard to post-delivery follow-up and care.

The draft allows a woman to donate oocytes up to six times in her lifetime, with a minimum interval of three months between the cycles. However, the maximum number of cycles that a woman can undergo has not been specified. This is significant, as every cycle may not result in oocytes viable for donation. The maximum number of oocytes to be retrieved needs to be prescribed in case of donors, as well as for women undergoing IVF or in egg-sharing programmes. Also, no system has been suggested to monitor and record the number of times a woman gives oocytes.

Although issues pertaining to ARTs occupy a complex intersection between technology, health, gender, commerce and sexuality, and in turn have implications for public health rights, gender justice, sexual rights, disability rights, child rights, bioethics, etc, to name a few, conversations around ARTs are still nascent.4

3 Public Health, Reproductive Rights and Justice

The interlinkages of ill-health in general, and of infertility in particular, with social determinants (such as poverty, patriarchy and hazardous occupations), underscore the need for universal health coverage, thus mandating the strengthening of the public health system.5 This is particularly important in the context of India’s collapsing public health system, the untrammelled privatisation of healthcare and the lack of state investment in health. As discussed earlier, services for infertility care, including basic screening facilities, are conspicuous by their absence in the public health system. This includes health infrastructure for addressing preventive and secondary causes of infertility, which can be dealt with at a preliminary stage. Studies have shown that there is no option to accessing private-sector treatment for infertility, including ARTs (Sama 2010). This raises larger questions of access, equity and affordability. We need to strengthen our public health system to provide services for infertility prevention and care in the public health system. While this is desirable, however, on the question of ART provision within the public health system, there are reservations. The main reservation is that though ARTs have already been introduced in a few government hospitals (such as the All India

108 Institute of Medical Sciences and Lok Nayak Jai Prakash Narayan Hospital in Delhi), they remain an expensive and ineffective techno logy that sidesteps rather than cures infertility.

Already, medical tourism, and reproductive tourism, now a component of the former, enjoys the support of the Indian state, which offers incentives such as the facilitation of travel with lenient visa norms and subsidies on infrastructure costs. The less tangible forms of state incentives for industry may be said to be the inattention to public health and the absence of regulation for private healthcare, which allow unhindered commercialisation, ethical violations and non-accountability of ART clinics to persist. Thus, there is clear collusion between state inaction on public health, and the promotion of medical tourism and private medical practice for those who can pay (Reddy and Qadeer 2010; Mulay and Gibson 2006). As such, it is necessary to evolve an inclusive agenda to address the larger problem of infertility, located firmly within a strong public health system that can genuinely address the health needs and rights of the majority of our population.

3.1 Reproductive Rights and Justice

With respect to reproductive rights and justice, ARTs raise concerns both old and new (Shore 1992). Historically in India and across the world, the fertility of a certain section of women (upper class, white, etc) is encouraged and valued, while the fertility of another (poor, third world, black, etc) is not. In the Indian context, the history of the development of ARTs cannot be studied in isolation, and must be understood as a point on the larger continuum of in(fertility) control. India’s first “scientifically documented” IVF baby was born on 6 August 1986 as a result of a government initiative by the National Institute for Research in Reproduction (NIRR). The NIRR initiative to foster research on ARTs stemmed from its larger concern with population control. This rationale was quite categorically stated in the ICMR bulletin (ICMR 1984):

In India, tubal sterilisation is a widely used method for control of fertility. However, due to high infant and child mortality, several women who have undergone tubal sterilisation do seek tubal recanalisation… In-Vitro Fertilisation-Embryo Transfer (IVF-ET) requires comparatively less surgical intervention than tubal recanalisation. If a couple is convinced that pregnancy could be achieved with certainty by the IVF-ET technique, in the event of their losing the existing children, they might readily accept tubal sterilisation as a method of family planning. Thus, in-vitro fertilisation could be of great relevance to our national family welfare programme.

Today, ARTs are marketed by providers as pro-women, and as meeting the need and desire of “desperate” women to be mothers and, therefore, to be “complete” women. Technologies that intervene in women’s bodies have all too often been manipulated to serve agendas ranging from anti-poor coercive population policies to profit-seeking medical practice that deploy patriarchal ideas about womanhood as motherhood. Similarly, women’s bodies have historically been sites over which others, rather than women themselves, exert control – this is true of women’s labour, sexuality, reproduction, etc.

Yet the question remains: are not the rights of the infertile to have biologically-related children reproductive rights? It has often been suggested that adoption should be pushed as an equal, if not

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better, alternative to ARTs. While adoption should certainly be discussed by counsellors as an option at the start of the ART process, it is debatable whether the onus of promoting adoption as a better and more benevolent option should fall entirely on infertile couples. Rather, adoption perhaps deserves equal consideration by all, “infertile” or not.

While users’ narratives highlighted several, even severe, implications of ART use, the trajectory of treatment that users undertook emphasised their strong desire for a child “of one’s own”. Implications of ART use include, but are not limited to, deterioration of health – with a direct impact on the physical and social functioning of individuals, psychological problems and increased stress levels, geographical and social relocation, strained sexual relations, disruption of work and daily routines, and financial instability. Women’s experiences reflected the coercive contexts in which they made their choices – remaining childless comes with its own set of negative implications. In fact, the responsibility for childlessness and its “treatment” rested disproportionately with the woman and her natal family. Often, the woman’s family was expected to provide financial as well as emotional support for undergoing infertility treatment, including ARTs. ARTs are one of several interventions pursued for infertility – others range from allopathic medication to alternative systems of medicine (such as unani, siddha, ayurveda, homeopathy and home remedies) and also religious and faith-based interventions. In many cases, users were willing to put up with a lot to be able to have a child; different roads were being taken to one elusive destination. As such, it was clear that in people’s immediate lives and worlds, risk is relative, and a biologically-related child may take priority over much else.

3.2 Surrogacy

The question of commercial surrogacy, which has been the subject of much attention of late, especially in the media, is one directly related to reproductive rights and justice. Surrogacy, the practice of gestating a child for another couple or individual, involves the use of ARTs. While surrogacy arrangements that are motivated by altruism have been far less critiqued,6 commercial surrogacy arrangements, which are done for financial or material gain, have led to many polarised debates within feminist thought.

Already regarded as the surrogacy outsourcing capital of the world, India is often termed the “mother destination”. While official statistics on the number of surrogacies being arranged in India are not available, anecdotal evidence suggests a sharp increase (Points 2009; Qadeer 2009; Kohli 2011). Commercial surrogacy arrangements are often portrayed as a win-win situation, seen to give “desperate and infertile” parents the child they want, and poor surrogate women the money they need. Yet, surrogacy is often a survival tool rather than an easy, happy right. The choice to be a surrogate, like all choices, is not free, absolute or unconditional; rather, it is made in a context of economic necessity. If anything, it is a conspicuous lack of choice that pushes both, the surrogate and the commissioning mother – who may be blamed and harassed for her childlessness – towards a surrogacy arrangement. Further, commercial surrogacy remains highly stigmatised, with many surrogates spending the term of their

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pregnancy in surrogate hostels, away from their families and communities. Surrogates may want to keep what they do secret as childbearing for financial gain is likely to be seen as “sleeping around”, “baby-selling” or “womb-renting”. Critics of the industry also warn against a race-to-the-bottom; today, first world and upper class women are using the wombs of their third world and lower class counterparts to breed babies (Bailey 2011). Tomorrow, the surrogacy industry could shift to destinations cheaper than India and in a desperate bid to find some employment, wages could get lower, and bad working conditions and health risks for women could be amplified. Clearly, this is a slippery slope.

Yet, a ban on commercial surrogacy may be neither desirable nor effective. Apart from the problematics of any ban in principle, at a practical level too, bans have all too often served to create black markets and resulted in more exploitation. Further, banning commercial surrogacy may force surrogate women back into an environment of even deeper poverty and vulnerability.

Surrogacy lies at the “peculiar intersection of a high reproductive technology and a low-tech work force” (Goodman 2008). Under globalisation, greater commercialisation of women’s labour and body parts is taking place today, with women finding themselves pushed into more informalised jobs such as export zones and the service sector, where there is a demand for their cheap, “docile”, even sexualised labour. As the unorganised sector grows, more temporary and contractual jobs for under-skilled labour are on the rise (Shah 2009). In the Indian subcontinent today, women who are in professions like garment work, sex work, migrant domestic work and surrogacy are engaging in contemporary and commercial forms of sexualised and reproductive labour – an extension of their “care work”, which was traditionally considered to be economically non-productive, apart from being seen as dignified only if domesticated (Sarojini and Marwah 2011). These jobs are usually inattentive to women’s rights and health, but are some of the only “real” options available in a context that is destroying indigenous livelihoods, while rolling back state investments in social sectors.

Commercial surrogacy may be best understood as “a new kind of labour – gendered, exploitative and stigmatised labour, but labour nonetheless” (Pande 2010). Developments at the intersection of science, technology and society are taking place at a great pace, and feminist praxis needs to catch up both analytically and politically. As a first step, we need to break out of the liberal imaginary that thinks only in terms of agent-or-victim. Rather than a moral debate around the acceptability of surrogacy, we need to focus on the terms of surrogacy arrangements, the material context and the medical, ethical and legal implications of its operation.

3.3 Politics of Identity and Neo-eugenics

ARTs function within international and national matrices of power that dis(allow) certain flows over others. For instance, not only has the perspective been put forth that the right of gay individuals and couples to have biologically-related children through surrogacy should be seen as a reproductive right, it is also argued that the use of ARTs by such non-conformist constituencies has the potential to subvert and challenge the mainstream

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hetero-normative family. ARTs bear the potential to delink “biology” from reproduction, and marriage from reproduction. Yet, while today gay couples from the global north come to India for surrogacy arrangements, India’s legal position on homosexuality is being contested. Despite a landmark high court judgment decriminalising gay sex in 2009, a Supreme Court challenge is underway. Further, the 2010 draft of the proposed legislation for the regulation of the ART industry is ambiguous about whether ARTs can be accessed by gay couples at all.

Already, access to ARTs is mediated by identities of gender, sexuality, caste, religion, class, etc. Commissioning couples commonly seek “fair” (often translates as upper-caste) surrogates to gestate their babies, just as they may want male or able-bodied embryos to be selected for implantation. Even in studies in which the sample has users from across the caste spectrum, this should not indicate that the market is blind to caste, or that it bears the potential to liberate us from ascriptive identities. In India, given that caste is classed, access to ARTs must be understood as being mediated most significantly by class and, therefore, by caste. Similarly, while ARTs were accessed by users from across different religions (Hindu, Muslim, Christian, Jain and Sikh in the sample), religion can be understood as often circumscribing the limits of technology use, as much as technology is deployed in ways that preserve and perpetuate religious affiliations. For instance, advice on the “permissibility” of ARTs, particularly with the use of donor gametes, may be sought from a local religious leader, just as a gamete donor from a particular religion may be sought over others (Sama 2010).

Women’s right to abort has in the past been promoted by feminists as an unambiguous and absolute right to exert choice and control over their bodies and lives. However, sex-selective abortions and India’s skewed sex ratios have highlighted that women’s right to abort is not always autonomous or progressive, and as such, conditions have been imposed on it in the form of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act. The same technologies facilitate the screening and abortion of disabled foetuses. Though this is as discriminatory, it has triggered, and polarised, more debates amongst

Notes

1 Sama’s first study (2006) on ARTs in India, “ARTs and Women: Assistance in Reproduction or Subjugation?” investigated the social, medical and ethical implications of ARTs, and was undertaken from 2004-06. The research was qualitative in nature, and interviewed 23 providers and 25 women users from Delhi, Hyderabad and Mumbai, as well as 20 activists. Sama’s second and more recent study (2010) – “Constructing Conceptions: The Mapping of Assisted Reproductive Technologies in India” , examined aspects of commercialisation and access within ART provision and included interviews with 43 ART providers and 86 women users. This research, conducted from 2008 to 2010 in the states of Uttar Pradesh, Orissa and Tamil Nadu, reinforced some of what had been highlighted through our previous work, but it also threw up new observations.

2 Sama’s critique brought the lens of women’s health and rights to bear on the document, and highlighted the need for comprehensive legislation formulated through a wider, participatory, and transparent process. In 2008, the Ministry of

110 feminists (Jesudason 2007; Ghai and Johri 2008). Disability rights activists contend that disability (like gender) is sociostructurally created, and must be similarly addressed; yet, it cannot be denied that the mother of a disabled child (or any unwanted child, including a girl child), especially without means, faces considerable challenges and difficulties. In the case of both sex-selective or disability-selective abortion, newer technologies like ARTs are creating more potential for misuse and are reinventing older dilemmas – the rights of the woman over her body and future is posited against the rights of her unborn child. We need more debate on whose rights prevail, in what contexts and why, in all its philosophical, political and practical complexity.

Conclusions

In the course of the last few years, developments in ART practice have gained unprecedented pace. The responses to these developments have also been evolving, albeit not as fast. While there has been feminist engagement with the issues in ARTs, other social movements, networks and campaigns, such as for sexual rights, child rights and disability rights, are yet to engage substantively with the challenges in ART use. However, efforts to address at least a few of the many concerns are being made at different levels, including by the state. In the past, legal tussles over the citizenship status of children born to foreign couples in India through ARTs and surrogacy have taken place. Some of these cases were widely publicised, and took months to resolve. Now, the draft ART bill 2010 looks to resolve this, in a welcome move. Nonetheless, many issues remain to be addressed; for instance, stem cell research that uses “spare” IVF embryos raises ethical concerns – informed consent needs to be obtained in a noncoercive manner from users, just as the question of who has the right to the genetic material that is a by-product of ART procedures needs to be resolved, and malpractices like the overstimulation of the ovaries to obtain more embryos for research need to be guarded against.

In totality, it can be concluded that engagement with policy to regulate the ART industry has been a case of some steps forward and some steps back; yet, the need to engage remains.

october 22, 2011

Draft ART (Regulation) Bill and Rules, 2010, revised by the ICMR, was made available. This draft was also examined and a critique developed by Sama. Sama also participated in consultations organised by the National Commission for Women (NCW), and has conducted meetings with the state chapters of NCW (Sama 2010).

3 In particular, in-depth discussions on motherhood challenged both – its glorification and its vivisection. It was pointed out that the draft bill 2008 sought to outline – and limit – “appropriate” parenthood; it posited as superior and indisputable commissioning parenthood over genetic (in case of donor gametes) and gestational (surrogacy) parenthood. It also omitted to expressly acknowledge the right of lesbian, gay, bisexual, transgender and queer (LGBTQ) individuals to parenthood. Further, in an attempt to establish the “legitimacy” of the commissioning parent and avoid any competing claims over the custody of the child, the draft bill 2008 permitted only gestational and not genetic surrogacy. This provision generated further discussion on the rights of the surrogate vis-à-vis the child, and on deeper notions of motherhood itself. The question was

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raised: should the surrogate be given a chance to decide whether she wants to keep the baby? Some argued that there should be a stipulated time period, after delivery and before the child is handed over to the commissioning parent/s, within which the surrogate is allowed to breastfeed the child, and decide whether she wants to keep the child. Others pointed out that the surrogate herself may not want to keep the child, just as she might not want her name on the child’s birth certificate, but nonetheless, she should be given the option and the right to decide. Still others critiqued the idea of “bonding” between the surrogate and the child as glorifying biological motherhood, and even argued that a child rights perspective would give more importance to the child’s guardian and care-giver.

Another important theme that was debated was the “legitimacy” of the use of the body as a “resource” and a productive asset in commercial surrogacy. Here, parallels were drawn between surrogacy and sex work; some argued that like sex work was recognised by many progressive quarters as sexual labour, similarly, commercial surrogacy should be recognised as reproductive labour. As such, feminist health activists should pitch their efforts to secure the protection of the rights of commercial surrogates, and deconstruct patriarchal ways of breaking down women’s bodies; it was noted that sex work was sex without reproduction, just as surrogacy was reproduction without sex; yet, the government has criminalised the former while promoting the latter. However, others were opposed to this stand as they saw it as legitimising the commodification of women’s bodies, increasing exploitation and argued that limits needed to be set to the sale, purchase, harvesting and use of body parts and bodily labour.

4 As and when such interactions have occurred, they have formed the axis around which our own understandings have evolved. For instance, it is in discussions with communities that the stigma and violence associated with childlessness emerges most clearly, as does the link between infertility and other health problems like tuberculosis.

5 A distinction needs to be made between infertility management, which is a broader category, and ART provision, and both practical and conceptual issues remain to be addressed.

6 In light of the stigma associated with commercial surrogacy, some have suggested that altruistic surrogacy may be a more acceptable option. However, altruism is not without its problems. Notwithstanding the impossible question of how the “altruistic” feeling in any relationship will be assessed, altruistic surrogacy is unlikely to be completely benevolent and without its own power dynamics.

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