Picture credit: ZEISS Microscopy, via Flickr

Two key items of legislation that have been proposed in India offer to recast assisted reproduction activities in the country. In this blogpost University of Sussex student Alicia Sharif discusses the implications of these proposed regulations for the people who engage in this sector.

India’s assisted reproduction market: boom…

Over the last few decades, India’s assisted reproductive technologies (ART) industry has boomed, with the in vitro fertilisation (IVF) industry alone estimated to be worth US$478 million in 2018. With infertility clinics numbered in the thousands, intending parents potentially have a vast choice of reproductive services and products to purchase – from donor eggs to fertility-boosting treatments and surrogacy services – often facilitated by clinics and agencies that offer to streamline the process.

There has been a thriving domestic user-base for these services, with high levels of infertility in the region attributed to inadequate gynaecological care. International demand is also substantial, due to the relatively cheap costs of labour and pharmaceuticals, alongside high-quality services and technology. Intending parents from all over the world can purchase all-inclusive packages that cover flights, accommodation and reproductive services, with tourist jaunts thrown in for good measure.

… and bust?

Yet in recent years the industry has found itself squeezed by government regulations. International surrogacy was banned in 2015, with surrogacy services made available only to some Indian citizens and eradicating a huge portion of demand (and revenue) flowing into India’s ART industry from overseas.

Now two recently tabled pieces of legislation – the 2019 Surrogacy (Regulation) Bill and 2020 ART (Regulation) Bill – are liable to further upend parts of the industry. There has been much debate around the evolving details of the two Bills and their seeming endorsement of a model for stratified reproduction that excludes queer communities, single parents and unmarried couples, and that exacerbates ableist discrimination. Current proposals suggest that only a married woman, between the ages of 25 and 35 years, who already has a living child of at least 3 years of age may be a surrogate. ART technologies are to be restricted to heterosexual married couples, and those with existing children cannot access ART unless their existing child is considered physically or mentally disabled.

Crucially, the Bills seek to move surrogacy services and transfers of reproductive material more decisively towards an altruistic model. Costs such as medical insurance and specific expenses may be covered, but any direct payment for reproductive services is to be criminalised. The Bills criminalise the sale of reproductive materials and ‘womb rental’, proposing fines and even prison sentences for repeat offenses.

Exploitation renewed

The Indian government is right to try to address concerns with an ART industry that has received significant criticism for its exploitative practices. For donors and surrogates, an alarming lack of informed consent and knowledge of risks associated with ART procedures have been found, with one study finding that all participants were unable to explain the procedures or risks they undertook within the process. Moreover,  a lack of regulatory standardisation in treatment and care has led to unethical medical decisions being made in the pursuit of clinic success, including multiple embryo implantation. For intending parents, the industry has been characterised by intense marketing of inflated success rates and minimised risk factors. In a context of pathologized infertility and a culture that shuns adoption, intending parents are exploited through misleading marketing by agencies hoping to profit from desperation for a genetically related child. Critics rightly question whether such deeply personal relations should be commercialised and regulated by market principles.

However, the ‘altruistic’ model proposed in the two Bills reproduces inequality and disempowerment for women in the ART industry. The Bills have been hailed as protecting women, whilst promoting ‘pro-woman’ ART technologies. Yet, the altruistic model promotes the donation of reproductive material and surrogacy services as a form of unpaid reproductive labour. Despite well documented exploitation in the commercial model, many Indian women actively choose to undertake surrogacy or donate eggs as a more financially and morally rewarding alternative to similar – if not worse – exploitative conditions found in other industries. The altruistic model restricts financial agency and disempowers women, predominantly lower-class women, while continuing to fail to adequately tackle issues of informed consent, medical malpractice and exploitation.

Where are we heading?

It is unclear whether demand for ART services in India will change and how this might affect the ART industry, given that intending parents, within and outside India, continue to face strong social and cultural pressures to have genetically related children. Some demand may be pushed to countries that continue to permit commercial exchanges, essentially outsourcing some forms of exploitation to other locations. Global hubs for these services are constantly shifting – initially booming then moving on when significant headwinds emerge.

In India some commercial activities amongst the ART industry may move ‘underground’, where serious medical malpractice and forgery may occur, endangering the lives and livelihoods of those involved. In the case of sex-selective abortion, for example, there is evidence that the practice persists despite national laws forbidding it since the 1994 Pre-conception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act.

Unfortunately, the Surrogacy and ART Regulation Bills are typical of a wider piecemeal and inadequate approach to promoting the rights of women in many contexts. Ultimately, without tackling deep-rooted gender norms that cast women as mothers, and pregnancy as a female service, it is likely that such exploitation will continue.