Is Transnational Surrogacy Exploitative? (1) Kirby's Argument

Surrogacy Hostel - India

Surrogacy is the practice whereby a commissioning parent (or parents) procures the services of a surrogate who will carry a child to term on their behalf. For obvious reasons, all surrogates are thus biologically female. There are two main categories of surrogacy: (i) genetic, whereby a male commissioning parent impregnates the surrogate (typically via artificial insemination); and (ii) gestational, whereby the commissioning parent(s) provide (or procure) an embryo for implantation in the surrogate. The latter has a number of distinct sub-varieties, each varying depending on how exactly the embryo is procured. There are also distinctions to be drawn between altruistic surrogacy, which is not done for profit, and commercial surrogacy, which is.

India has become a major international destination for commercial surrogacy. The practice is legal there since 2002, and one of the goals of the Indian government is to make India a prime destination for medical tourism. Adding to its attraction is the fact that surrogacy is significantly cheaper in India than it is in many Western countries (at least, in those Western countries that have legalised commercial surrogacy). For example, the total cost of a surrogacy arrangement in the US, including medical expenses and surrogate’s fee, is estimated to range from $50K-$150K, whereas the total cost in India, including travel expenses for the commissioning parents, is approximately $25K-$30K. As such, it is common for commissioning parents in high income countries to take advantage of the lower costs in places like India.

The question I want to consider over the next couple of posts is whether such transnational gestational surrogacy (TGS) arrangements are exploitative. I’ll do so by reviewing some recent papers on this topic by Jeffrey Kirby and Stephen Wilkinson. I start today with Kirby’s paper ‘Transnational Gestational Surrogacy: Does it have to be exploitative?’, which appeared in the American Journal of Bioethics in 2014. Kirby argues that TGS probably is exploitative in its current form, but that it need not be.
Note: throughout this post and its sequels, much of the focus will be on India. This is because India is a relatively well-studied example, with a number of empirical and ethnographic reports available about the practice and the lives of surrogates in that country. But it is not the only destination for TGS and the evaluation undertaken here could be applied to other destinations as well.


1. What is exploitation? Kirby’s Three Pronged Framework
We start by looking at the concept of exploitation. Exploitation is morally significant. If I exploit you, then I have wronged you and may owe you some duty of repair. Similarly, the fact that a relationship or transaction is exploitative is usually taken to be a reason (even if not a decisive reason) for deeming that relationship or arrangement impermissible (we could get all philosophical and call it a pro tanto or prima facie reason, but we won’t bother).

But then when is a relationship or transaction exploitative? This is something that has been much debated over the years. The basic gist of the idea is that a transaction is exploitative if you take unfair advantage of another person (or group of persons). This usually means that you profit at their expense, though sometimes exploitative transactions can be mutually advantageous. Indeed, this may be true of TGS transaction since in such arrangements both the commissioning parents and the surrogate are gaining (to at least some degree). What makes the transaction exploitative in such cases (if it is at all) is determined by reference to how the benefits/burdens of the transaction are distributed between the parties.

One of the nice features of Kirby’s article is his review of previous attempts to define exploitation. I’m not going to review his review. Instead, I’ll skip right to the end where Kirby offers his own, somewhat complex, framework for evaluating whether or not an arrangement is exploitative. The framework tries to capture the moral insights from previous definitional efforts (including liberal, Marxist and social justice definitions). It identifies three conditions which can independently determine whether exploitation arises. I’ll quote from the article at this point:

Kirby’s Exploitation Framework: “In a transaction between individuals/parties, exploitation is constituted by the taking of unfair advantage, whereby one individual/party gains at the expense of another individual/party who is relatively disadvantaged on economic, social and/or political grounds. A finding of exploitation is not precluded by a “better” transaction outcome for the disadvantaged individual/party than the status quo ante, and transactions that produce significant mutual advantage may be exploitative to an individual/party. The taking of exploitative unfair advantage is demonstrated by the meeting of one or more of the following three exploitation conditions, each of which is sufficient for a finding of exploitation:

Exploitation Condition 1: It is unlikely (improbable) that the disadvantaged individual would voluntarily choose to enter into, and continue in, the transaction on the basis of her/his full knowledge and understanding of its anticipated burdens and benefits. [Note: members of the relevant group or community of disadvantaged individuals will deliberate together to determine whether this condition is met].

Exploitation Condition 2: The disadvantaged individual is unable to make a meaningful decision about whether to enter into, and continue in, the transaction; that is, the choice is not well-informed and/or is coercive in nature (the latter, at least to the extent that the individual could not really choose to do otherwise).

Exploitation Condition 3: The interests of the disadvantaged individual are not taken into account in the development of the transaction and members of the disadvantaged individual’s social group/community do not participate in, and significantly inform, decision making about the transaction’s (initial and ongoing) terms and labor-related conditions.”

(Kirby 2014, 26-27)

There is a lot going on in this. I suggest re-reading it a couple of times to grasp its full import. One thing worth noting in particular is how Kirby ties his framework to the views of the typical individuals in the relevant community of disadvantage. There is an almost explicitly consultative dimension to it: in order to determine whether the conditions of exploitation have been met, we need to consult with (or at least consider the views of) the people who may or may not be exploited by the transaction. This consultative dimension is very clear in the first and third conditions.

Anyway, with the framework in place, we can move on to Kirby’s main argument which is that, at present, TGS is indeed exploitative in India, but that this need not always be the case. He grants that Indian surrogates are members of a disadvantaged group: they come from a developing nation and have much lower average incomes than Western commissioning parents. He then questions whether each of the three conditions is met in the case of the typical Indian surrogacy arrangement. Let’s go through each step of the analysis.


2. Is First Exploitation Condition met in the case of Indian Surrogates?
The first condition is the most difficult to assess. It states that a transaction is exploitative if the disadvantaged party would be unlikely to enter into it if they were fully aware of the benefits and burdens involved. This means we have to work out what these benefits and burdens are. This requires some engagement with the empirical studies done on the lives of surrogates in India, followed by a complex weighting of the evidence drawn from these studies.

The benefits of surrogacy (from the perspective of the surrogate) are relatively clear. The surrogate receives a considerable amount of money for their services. Chang and Jaiswal estimate that the average fee ranges from $6K-$10K. A study in the Lancet in 2012 put the figures at $5K-$7K. To Western eyes, this may not seem like much, but the significance of these figures must be appreciated within the relevant economic context. Most Indian surrogates are women from poor rural communities. The average annual income for such women, according to the Lancet report, is in the region of $300. So the fee represents (roughly) 16 to 33 times the average income.

Amrita Pande has conducted a number of interviews with surrogates who describe the benefits of this money in terms of how it enhances their material and social circumstances, e.g. paying for education, housing, healthcare, business debts, and so on. Interestingly, some women don’t conceive of the benefits purely in terms of the instrumental value of the money. Some value becoming a surrogate because it temporarily removes them from other workplaces in which accidents and injuries are common (Humbyrd 2009).

So, as I say, the benefits seem relatively clear. What about the burdens? As you might expect — given that Kirby’s article was published in a bioethics journal — he is quite thorough when it comes to this issue, particularly the medical procedure and its health risks and side effects. He divides these burdens into two main classes: (i) physical and (ii) psychological.

The physical burdens arise from the hormonal manipulation that is used to prepare the surrogate for implantation; the process of embryo transfer; and the common risks associated with pregnancy and giving birth. Birth control pills are often used to sync the cycles of the commissioning woman and the surrogate. Gonadotropin-releasing hormone (GnRH) is used to prevent premature ovulation. This is usually well-tolerated but has known side effects including hot flashes, fatigue, headaches, nausea, irritability. Estrogen tablets are used to thicken the uterine lining prior to implantation. Progesterone capsules (or suppositories or injections) are used before embryo transfer and during the early weeks of pregnancy. Both have well-known side effects including bloating, irritability and breast soreness. There are also cumulative risks if you undergo the process several times. The actual process of embryo transfer involves some (usually mild) physical discomfort (a soft catheter is inserted into the uterus). If several embryos are transferred, there is a risk of multiple gestation and preterm births. Becoming pregnant and giving birth also carries risks, including a risk of mortality, but these risks are relatively low given the high standard of care provided by surrogacy clinics. Of greater significance, might be the frequent use of caesarian sections to facilitate the scheduling needs of the clinics and commissioning parents. Finally, Kirby notes a recent study by Stewart et al. (2013) which suggests that women who undergo IVF are at a slightly elevated risk of ovarian tumors, but these tumors are ‘of low malignant potential’.

The psychological burdens are complex, and arise from cultural factors and personal circumstances. One significant feature of surrogacy in India is that some surrogates move into hostels that are run by the fertility clinics. This separates them from their families (all these women must have had at least one child of their own) for extended periods of time. There is also a risk of social stigmatisation as some people equate surrogacy with marital infidelity or prostitution. Indeed, Pande notes that this is one reason why women move to surrogacy hostels: to conceal their pregnancies from members of their local community. There is also the psychological burden that arises from ‘giving up’ the child at the end of the transaction, due to attachment that arises during pregnancy. This is sometimes thought to be lessened in the case of gestational surrogates since there is no genetic connection between the mother and the infant. But Pande argues that this may not be true in parts of India where the significance of genetics is poorly understood and the primary attachment-concept is that of ‘shared bodily substances’ (e.g. blood through the placenta or breast milk). These psychological risks could be mitigated through counseling and pre-screening, but such services are not usually available to women in these settings.

The benefits and burdens are summarised in the table below.

What conclusion should we draw from this description of the benefits and burdens? One of the frustrating things about Kirby’s article is his failure to provide quantitative estimates for the various health risks and side effects. I’m sure these are available somewhere, and they would really help with weighting the benefits relative to the burdens. But, in any event, Kirby doesn’t want to engage in that exercise. He thinks the description of the benefits and burdens reveals just how difficult it would be to determine whether the first exploitation condition is met. There are clearly benefits here — ones that are appreciated by women in the relevant communities and could be potentially transformative — and there are also clearly burdens — some of which are unique to India, some of which are common to all surrogates. He thinks it would be really difficult for him (an outsider) to say whether a properly informed woman would choose to become a surrogate given those benefits and burdens. Fortunately, he doesn’t have to because the other two conditions provide independent grounds for exploitation.

That’s a somewhat underwhelming and disappointing conclusion. My guess — and it is only a guess — is that there would be at least some women for whom the benefits would outweigh the burdens.


3. Is the Second Exploitation Condition met in the case of Indian Surrogates?
The second condition says that a transaction is exploitative if the decision to enter into it is not the product of meaningful choice. This is cashed out by further reference to how ill-informed or coercive in nature the decision might have been.

Kirby thinks this condition is met in the case of the typical woman from rural western India. It doesn’t appear that women are actively coerced into these transactions (though some have argued the size of the fee could have a paradoxically coercive effect). But it does appear that they are ill-informed. Indeed, the available evidence suggests that such women are not provided with much information and often don’t understand the nature of the transaction they are getting into. Pande’s investigations and interviews are a major source of evidence in this regard.

She discovered that in Anand (one of the main regions in India’s TGS trade), little information was provided to the women and no attempt was made to ensure that they understood this information. Perhaps most damningly, the standard contract was written in English, a language that none of the women she interviewed could read. Her interviewees, in turn, revealed the paucity of information and understanding. One woman, Gauri, said:

‘…the only thing they told me was that this thing is not immoral, I will not have to sleep with anyone, and that the seed will be transferred into me with an injection…they also said that I have to keep the child inside me, rest for the whole time, have medicines on time, and give up the child.’ 

(Pande 2010, 976-977 - taken from Kirby 2014)

Given the preceding description of the benefits and burdens associated with surrogacy, you can plausibly argue that this is insufficient for truly informed consent and meaningful choice. To be sure, poor understanding of the risks and benefits of medical procedures are common in many Western contexts too, but from this description it seems like the attempt at informed consent for the surrogates in western India falls well below the desired level.

There are some potential counterarguments. The practice in India is for surrogacy brokers (“middle-women”) to go door-to-door recruiting potential surrogates. Most women refuse, suggesting that the women who do become surrogates may have had the ability to do otherwise. But Kirby thinks this is insufficient to displace worries about a lack of informed consent. Similarly, there are some women who undergo the process repeatedly. They have presumably acquired some experiential knowledge that renders their decisions more meaningfully ‘informed’. But Kirby thinks that ‘this does not preclude the possible influence of coercive factors such as “brainwashing” and/or escalated financial inducement’ (2014, 29). Finally, someone of a libertarian persuasion could argue that these women have a negative right not to be interfered with when it comes to choosing to enter a surrogacy transaction. But Kirby dismisses this on the grounds that a pure negative freedom is insufficient for a genuinely autonomous decision: what matters is who controls the choice-context.

I’m broadly in agreement with this. I think the informed consent angle (in particular, the language issue) needs to be addressed. That said, as per my previous comment, I wouldn’t rule out the possibility that some women make an informed decision. In this regard, I am slightly more persuaded by the possibility of experiential knowledge sufficing for an informed decision than Kirby appears to be.


4. Is the Third Exploitation Condition met in the case of Indian Surrogates?
This brings us to the last exploitation condition. This one states that a transaction is exploitative if the disadvantaged individual/community has no real say in the terms and conditions that govern the transaction. This provides the most plausible exploitation-argument against TGS in India. Why? Because it seems pretty clear that surrogates have no say in setting the terms and conditions of these transactions. It is the fertility clinics, medical practitioners, surrogacy brokers, government and commissioners who have all the bargaining power. This seems clearly evidenced by the frequent use of caesarian sections to suit the scheduling requirements of the clinics and commissioners; by the drafting of contracts in a language that the women cannot read; by the use of surrogacy hostels; and by the failure to provide appropriate counseling and support.

The Assisted Reproductive Technology Bill 2014 (which as far as I can tell is still merely proposed rather than actual law) does attempt to introduce additional regulatory safeguards. In particular, it tries to make it a bit more difficult for foreign commissioning parents to procure surrogates. But, as Kirby notes, it is not a progressive piece of legislation. It requires consent from the husbands of surrogates, and there is no evidence to suggest that women from the relevant communities have been consulted. There have also been earlier reforms that have not protected the interests of the women involved. For example, a 2010 reform reduced the front-loading of the surrogate’s fee, which meant the surrogate would not be fully paid if they lost their pregnancies at a later stage.

For what it is worth, I agree with Kirby on this point: the lack of bargaining power on the part of the women affected by these transactions would seem to provide a pretty compelling argument against them.


5. So what can be done?
So Kirby thinks that TGS (as practiced in India) is exploitative because conditions 2 and 3 of his framework are met. He has thus provided a moral argument against TGS. But the argument is highly contingent in nature. It does not say that TGS is ‘in principle’ exploitative, merely that it is exploitative in its current form. This suggests that the system could be reformed.

And, indeed, Kirby does suggest three general categories of reform which could render these transactions non-exploitative. They are:

Public Education and Enabled Choice: A ‘comprehensive public education program’ could be introduced to combat myths and misinformation about surrogacy and to reduce the stigma that might attach to surrogates. Women thinking of becoming surrogates could be ‘required to attend a government-sponsored educational workshop’ that will explain the benefits and burdens of the transaction to them. Neutral ‘advocate-navigators’ could be recruited and trained to help the women through the process (Kirby 2014, 30).

Enhanced Protections: There could be enhanced regulatory protections. This could include setting a maximum delivery age of 34 for potential surrogates (reduces potential complications), limiting the number of embryo transfers to prevent the risk of multiple gestations, limiting the maximum number of surrogate pregnancies to reduce risk of multiple rounds of IVF, and ensuring that the safest hormone protocols are used. There could also be screening evaluations and counseling available to minimise the psychological burdens.

Empowerment: Efforts could be made to enhance the agency and bargaining power of surrogates. This could include consultation and deliberative engagement with the relevant communities in order to develop standard terms and conditions for surrogacy contracts; ensuring that remuneration is fair by front-loading payments to surrogates; and setting a price floor (i.e. minimum wage). It could also include ‘high quality educational programs that provide training for local, decent-wage jobs’ for surrogates during their pregnancies, as opposed to the existing system of surrogacy hostels providing (some) English and computer courses, which are primarily for the benefit of the commissioning parents who wish to communicate with surrogates (Kirby 2014, 31).

Many of these reforms sound commendable, and may genuinely help to remove some of the exploitative taint from surrogacy transactions. I have only two observations. First, note that some of these reforms involve placing additional burdens on the disadvantaged women, e.g. mandatory education and psychological screening. We might want to question that. As I mentioned at length in my posts on sexual consent, burdens of this sort represent a tradeoff between positive and negative autonomy: extra burdens mean we protect negative autonomy to a greater degree than positive autonomy. This may be entirely appropriate, given the risks associated with becoming a surrogate and the potential exploitation, but we should acknowledge that the tradeoff is being made.

Second, and maybe more importantly, many of the mooted reforms would have the effect of increasing the cost of surrogacy in India. Kirby concedes as much in his discussion. Raising costs may have some perverse effects on surrogates in India. All transactions between people in high income countries and people in low income countries have an exploitative element to them: they involve people from richer countries taking advantage of lower costs in poorer countries. Some people find this appalling; some think it is good because it aids economic growth and provides better alternatives for the people in low-income countries. I don’t know where you would come down on this issue, but in either case the danger with raising costs in India is that it might drive the market for TGS to another cut-price jurisdiction. This could deprive women in India of income and push the problem onto another disadvantaged population. Kirby thinks this possibility could be mitigated by ensuring the costs don’t go too high. But his discussion mainly focuses on ensuring a price differential between India and high income countries; it doesn’t really focus on the price differential between India and other low income countries. Of course, you could argue that this is okay because the reforms in India are morally justified, and any other jurisdiction would simply be obliged to introduce similar reforms. And I would agree with that, but this reform effort is likely to be a drawn out process (Note: this depends entirely on whether other jurisdictions would be willing to legalise commercial surrogacy in the same way; I’m not sure how likely this is given that there are numerous other objections to the practice).

In conclusion, TGS as practiced in India is probably exploitative. Although it is difficult to weigh the relative benefits and burdens of becoming a surrogate, it seems pretty clear from the available evidence that surrogates in India are poorly informed about the transactions they are entering into and lack bargaining power in shaping the terms and conditions of those transactions. Reforms could be introduced to improve the situation, but these will involve trading-off different values and may not improve the overall quality of life for surrogates in India because of the dynamics of transnational capitalism.