The use of gestational surrogates in India is a booming business, but is it ethical?

This growing practice involves individuals and couples from countries in Western Europe, North America, Israel, Japan and elsewhere who work through brokers to have their genetically related offspring carried through pregnancy and birth by Indian women.

An estimated $500 million to $2.3 billion (U.S.) changes hands among commissioning couples, infertility clinics, brokers and Indian women who choose this way of earning money.

Ethics guidelines for surrogacy have been in place in India since 2005, but they do not have the force of law and tend to favor the fertility clinics and the commissioning couples from abroad, rather than the Indian women who serve as surrogates. A bill prepared in 2010 to regulate surrogacy legally is currently before the Indian parliament. Critics argue that the provisions of that bill, like the current guidelines, lack appropriate protections for the women who act as surrogates.

Several ethical questions arise about this practice, including these:

• Is reproductive tourism in surrogacy arrangements different, in principle, from commercial surrogacy carried out within a country?
• Are Indian women exploited by this practice?
• Do they consent freely to serve as surrogates?
• Are their rights and welfare adequately protected?

Some critics argue that commercial surrogacy in India is ethically wrong in principle. Some condemn it on the ground that it involves commodification of the human body; others contend that the Indian women are coerced financially.

There is a different approach, however, which examines the empirical facts surrounding the practice in India. How are surrogates treated during and after their pregnancies? Are their lives actually better off when they receive more money from serving as surrogates than they could by any other means?

The main arguments against commercial surrogacy are flawed. Those who argue that paid surrogacy treats women’s bodies as commodities need to explain the difference between the use of women’s bodies to gestate babies and the use of human bodies for paid labor for a variety of tasks, which may be riskier than going through pregnancy and childbirth: backbreaking work loading trucks; working on oil rigs; cleaning up toxic waste. The argument that poor Indian women are being exploited is odd, given that they are paid more as surrogates than they could possibly earn in other jobs, which would likely be more unpleasant.

Perhaps what is meant by exploitation is that these women are not being paid enough. But that argument runs directly into the opposite worry: that women are being “coerced” by receiving more money than they could obtain by other means. This latter objection relies on a mistaken notion of coercion. Coercion involves confronting people with two undesirable choices, each of which would make them worse off: “Your money or your life.” The Indian women who serve as surrogates are offered a desirable option: the chance to obtain money they could use to put more food on the table or educate their children. However, coercion could occur by other means; for example, a woman’s husband or mother-in-law could wield power and force her into making a surrogacy arrangement.

Evidence from research conducted on surrogacy in India reveals the opposite situation. Women often have to convince their husbands that surrogacy is an acceptable option, since the practice is sometimes misunderstood to involve a sexual encounter rather than the use of advanced medical technology to transfer an embryo to a woman’s womb.

My own view is that there is nothing wrong, in principle, with the practice of paid gestational surrogacy. The ethical acceptability of reproductive tourism in India depends on an array of factual circumstances:

• Is the woman properly taken care of if something goes wrong in the pregnancy?
• Is there insurance or guaranteed medical care for complications that may persist after the birth of the baby?
• Does the woman have access to legal representation in case the broker or commissioning couple fails to come through with the funds?

These are precisely the items a law designed to protect the rights and welfare of surrogates should contain. Those who would restrict the autonomy of poor Indian women with few options need better arguments to justify their paternalism.

Ruth Macklin is a professor, department of epidemiology and population health, Albert Einstein College of Medicine. She blogs at The Doctor’s Tablet.