Commodification of the womb

Through modernization of reproductive technology, the options for having a child has expanded to include artificial insemination, in vitro fertilization, and surrogacy as possible solutions when faced with infertility. A woman may essentially offer to rent her womb for the gestation of a child who will be given to another person following the birth of the child. Surrogacy has been a practice throughout history yet has become more popular in the modern day.

In the Bible, Rachel, who was infertile, gives her handmaid Bilhah to her husband Jacob to bear him children. The two children, Dan and Naphtali whom Bilhah gave birth to were given names by Rachel who was considered their mother following birth. This was the earliest biblical example of surrogacy.[1] From the Middle Ages to modern times, other reproductive services have also been supplied for a fee. For example, in the Middle Ages a wet nurse would feed and care for another woman's child, in exchange for payment. These reproductive services often share a common thread of a woman of lesser economic means supplying either gestation or care of another woman's child for an individual fee or as part of her employment.

In the late twentieth and early twenty-first centuries, artificial insemination made impregnation possible without sexual intercourse. Thus the market for commodification of the womb was transformed. Through the advancements of modern technology, potential parent(s) have the ability to enter into a market transaction with a someone who agrees to gestate a child, either of their own egg or that of a surrogate, with the contractual obligation of turning this child over upon birth. Having a child born of a commercial surrogate may be considered a luxury good. Luxury goods are typically only available to those with significant means, beyond that of necessities. It thus follows that, just as in the Biblical cases of handmaids being asked to conceive children, early twenty-first century people offering their wombs to the market would also be of lesser economic means.

Viewing the womb as a commodified good allows for the understanding of the market supply, demand, and transactions that take place with a part of the human body. The market for commercial surrogacy began to take shape in the late 1970s; one of the more prominent figures in this market was attorney Noel Keane of Michigan, United States.[2] Keane and other entrepreneurs saw a market for the womb, and hence the commodification of the womb began.

Keane started brokering deals, for a fee, between potential surrogates and parents until he found out that it was illegal for a genetic parent to sell their child to another person in the state of Michigan. Keane's business model was to have fathers contribute sperm and the surrogate mothers provided eggs. The surrogate mothers were genetically related to the child, while the non-birth mothers were not. Such surrogacy arrangements were illegal in some states on the basis that the non-birth mothers were paying the biological mothers for their genetically related children. The state of Michigan was one such state that enacted laws forbidding these surrogacy arrangements, thereby making Keane's business model illegal.[3] The main purpose of these laws was to prevent the sale of infants as if they were property. Some states viewed surrogate contracts as void, the payment for a child was illegal, and/or viewed artificial insemination as adultery, if the couple was not married.[3]

To avoid the legal issues Keane thought women would volunteer, without pay, to become surrogates out of an altruistic motivation. However, without the promise of financial compensation, Keane found a sharp decline in the number of women who volunteered.[2] In the early 1980s Keane moved his commercial surrogacy business to Florida, where laws were more lenient. Florida also had no laws regarding the exchange of money for infants.[4] A commercial surrogacy broker could be viewed as a capitalist organizing production and offering a product to the market. This raised the question of whether women and children are being viewed not as human beings but as commodities of the market, being bought and sold for the highest prices. At the outset of commercial surrogacy, the laws in place in the United States were not equipped to handle the resulting legal and ethical questions that would arise. As with many modern markets, womb commodification has moved from local markets to outsourcing in foreign countries.

There are two types of surrogacy: commercial surrogacy and altruistic surrogacy. Commercial surrogacy is when the surrogate offers the rental of her womb to the market for financial gain. Conversely, the surrogate generally does not profit from the rental of her womb in altruistic surrogacy.

The following countries legally permit both commercial surrogacy and altruistic surrogacy: Russian Federation, Ukraine, Belarus, Georgia, Armenia, Cyprus, India, South Africa, and the United States (in the states of Arkansas, California, Florida, Illinois, Texas, Massachusetts, and Vermont).

Other countries permit altruistic surrogacy: Australia, Canada (except Quebec), the United Kingdom, Netherlands, Denmark, Hungary, Israel, and United States (in the states of New York, New Jersey, New Mexico, Nebraska, Virginia, Oregon, and Washington).

There are also countries in which any form of surrogacy is illegal, Germany, France, Spain, Italy, Switzerland, Austria, Norway, Sweden, Iceland, Estonia, Moldova, Turkey, Saudi Arabia, Pakistan, China, Japan, and the United States (in the states of Arizona, Michigan, Indiana, North Dakota).[12] Due to varying options within a home country many people seeking a commercial surrogate choose to seek markets abroad. India legalized commercial surrogacy in 2001.[13] Legalization was pushed forward with the hope that medical tourism, and specifically reproductive tourism in India would increase.

By becoming commercial surrogates women in India are enabling themselves to improve not only their lives but also the lives of their families. It is common for surrogates to have had limited access to education, which could limit the opportunities for employment in the market.[14] Payment for surrogacy varies by contract, estimates range from the equivalent of three times what the head of household could make in a month,[14] to earning in nine months an amount that would take fifteen years worth of work.[16] This amount of money can provide access to better housing, food, education, and sanitation, that would otherwise not be probable.

Former surrogates also have the ability to become agents for surrogacy clinics. Agents, for a fee, facilitate a surrogate's doctor's visits and look out for the care and wellbeing of the surrogate throughout the course of her pregnancy. Becoming an agent allows the woman to have several patients and she is able to collect fees from each of them, which may further improve her financial situation.[14] It was expected that profits for commercial surrogacy would reach as high as six billion dollars by 2012.[16]

6 September 2018, Section 377 of the Indian Penal Code is declared unconstitutional in India. After this path breaking decision, surrogacy, especially single father surrogacy will see a boost among LGBT community.[17]

When a woman signs a contract to become a gestational carrier she is subject to hormone administration and embryo transplantation to become impregnated. Many, but not all surrogates move to gestational hostels and receive better medical treatment and care than they would receive were they giving birth to their own child free of the obligation of a contract.[18] Nutrition, health, and rest are all monitored as part of the contract, with the wellbeing of the fetus often paramount to that of the surrogate.

Many clinics that broker transnational surrogacy prefer women who have already given birth, as the clinics have evidence of a viable uterus. The clinics may also prefer women who have their own children, with the hope that the surrogate will not bond with the fetus. Surrogacy contracts focus on the rental of an unused womb, with the belief that the fetus is the property of another. Many surrogates only receive full payment for their service if the full duration of the pregnancy is met. The appeal for foreign parents of transnational surrogacy is due to the lower costs and wage demands than they would find in their home country.

Dr. Nayna Patel runs the Akanksha clinic, in Anand, Gujarat. At first most of the clients seeking fertility services from the Akanksha clinic were Indian, but their clientele has expanded to Westerners also seeking a child. Many come to this distant clinic as the fees are too high in their own country - foreign couples are seeking lower priced alternatives to local surrogacy, and foreign surrogates may be willing to accept a lower fee. Surrogates at the Akanksha clinic have the possibility of making $5500 for this transaction, a sum of money that is significant in providing for a family, education, housing, and wellbeing when compared to other alternatives.[19]

Citizenship of a child has traditionally been established through jus soli, right of the soil, and/or jus sanguinis, right of blood.[20] Surrogacy challenges the traditional view of citizenship, by redefining what it means to be a mother. Nations must now consider if a mother is the person who physically gave birth to the child, the one who provided her ovum, or the one who will care for the child.

In July 2010, consuls general from Belgium, France, Germany, Italy, the Netherlands, Poland, Spain, and the Czech Republic sent letters to surrogacy clinics in Mumbai, India, to direct potential clients from these countries to seek guidance from their consulates before entering into surrogacy contracts. These countries have varying surrogacy laws, and many of their citizens have faced difficulties upon trying to gain citizenship rights for children born in India.[20]

One of the most well known cases of problematic transnational surrogacy and lineage is that of the baby girl known as Manji, born in 2008, in India. Manji's birth was the result of a commercial surrogacy contract between her Japanese parents and her Indian surrogate. Before Manji's birth, her parents divorced, and her commissioning mother refused to claim her. Under Indian law, an infant's passport may only be issued in conjunction with the mother's. Since neither her Japanese or Indian mother would claim Manji, for a brief time she was not considered a citizen of Japan, India, or any other country.[16] It was not until her paternal grandmother claimed her, accompanied by a lengthy legal battle, that Manji was able to apply for a passport and citizenship.