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By Dhairya Gupta
I. Introduction
Feminist movements since their inception in the late nineteenth and early twentieth century have emphasised equal opportunities for both men and women and open employment and suffrage rights for women along with advocating for women’s participation in politics marking the first wave of feminism.[1] During the second wave of the feminist movement, between the 1960s-90s, the dominant issues of the feminist movement shifted from participation in politics to sexual freedom, reproductive rights, and social equality regardless of sex.[2] Feminists during the second wave, who were increasingly radical, have made great gains in their fight for the right to reproductive choice. Women have established significant reproductive rights, including the right to avoid pregnancy using contraceptives;[3] the right to become pregnant through artificial insemination;[4] the right to control their bodies during pregnancy by choosing, for example, not to have Caesarean sections to preserve their religious values;[5] and the right to terminate their pregnancies through abortion.[6] While the first wave of feminism included only middle-class, cis-gendered, white women, the second wave of women of colour, from varying classes and developing nations also drew in. Literature like Betty Friedan’s “The Feminine Mystique” reacting against the belittled and demeaning representation of women in advertising agencies and institutions like education, feminist writer Kate Millet’s gospel on Sexual Politics, Carol Hanisch’s essay, “The Personal is Political”, gave a further radical shape to this wave and feminists were determined to root out patriarchy, were vocal against gender roles and were determined by their demand for changing institutional norms, gender role stereotypes, cultural stereotypes and making equality visible from the private domestic sphere to the public workplaces, politics to property distribution systems.[7] There are various schools of feminism such as liberal feminism, radical feminism, socialist feminism, Marxist feminism, etc. that help understand differing standpoints with respect to feminism.
As argued by Gerda Neyer and Laura Bernardi in their article “Feminist Perspectives on Motherhood and Reproduction,” women have been struggling for their bodily autonomy ever since the beginning of time; one of the very main tenets of feminism is that women’s destinies should not be controlled by their biology. Historically speaking, the division of labour was in a way that social roles/duties of women were limited to getting pregnant and bearing and rearing children. However, the fact of the matter is that control over women’s bodies and reproductive capabilities has always been with men.[8] This is one of the major determinants of oppression and domination by men. Linda Gordon in “Woman’s Body, Woman’s Right: The History of Birth Control in America” 1990[9] and Rosalind Pollack Petchesky in “The body as property: A feminist re-vision” 1995[10] have asserted that women have been attempting to regain control of their reproductive capabilities and not let biology control their destiny. On similar lines Catherine McKinnon says masculinity is defined as sexual dominance, femininity as sexual submissiveness: genders are “created through the eroticisation of dominance and submission. The man/woman difference and the dominance/submission dynamic define each other. This is the social meaning of sex”.[11] Hence is the submission of women and dominance of men, the domestication of women and control by men.
Amid this scenario, another conversation around commercial surrogacy has been gaining momentum. Surrogacy is an age-old practice where a woman carries another couple’s foetus in her womb and carries it to term for the parental couple. It has been practised since ancient times. We can also find many instances of surrogacy in mythologies and holy books; for example, in the Old Testament, Abraham’s wife Sarah couldn’t conceive, and her handmaid Hagar was the one who bore their son, Ishmael for them;[12] another example from Hindu mythology is of Shiva and Parvati’s elder son, Kartikeya who given birth by Ganga.[13]
The upcoming commercial surrogacy is where there are diversified views among various schools of feminism. While the liberal school of feminist thought views surrogacy as a choice that women make with their bodies, the Marxist school believes that there is indeed no real choice after all; surrogacy is exploitative and coercive by nature.[14] Surrogacy can be classified into altruistic surrogacy and commercial surrogacy. Commercial surrogacy is carrying another couple’s foetus to term, surrendering all parental rights in exchange for monetary benefits. Commercial surrogacy is banned in India under The Surrogacy (Regulation) Act 2021. This legislation regulates surrogacy and lays rules and regulations for the same. The only permissible form of surrogacy in India is altruistic surrogacy (one without any fees, remuneration or monetary incentive). There are rigid rules for both the permissible surrogate and the intending parents. The intended couple shall be a legally married Indian man and woman, the man shall be between the ages of 26-55 years and the woman shall be between the ages of 25-50 years, and shall not have any previous biological, adopted, or surrogate child. For the surrogate, she has to be a willing, married woman between 25-35, who has a child of her own and is related to the intending parents. Such necessities and specifications make the act very restrictive.
However, in commercial surrogacy, the surrogate is made to enter into an agreement by the intending couple stating that the reproductive services of the surrogate mother are paid for and the child so born will not belong to her. Correspondingly the surrogate forgoes all claims of motherhood on the child as she has been expressly paid for the same.[15]
The objective is to study and analyse how the right of choice of women, their bodily anatomy, their reproductive choice, and their labour paradigm impact the narrative of commercial surrogacy and where it stands with respect to the core tenets of feminism.
II. Feminist perspectives
A highly debated issue pertaining to commercial surrogacy between radical and liberal feminists is whether gestational surrogacy exploits and harms the women who function as gestators or whether it can be an authentic and voluntary choice made by women who carry out reproductive activities.[16] Some regard these choices as new reproductive freedoms while others view them as other ways for society to continue to control women through their reproductive capacities.[17] This argument reveals a stark difference in viewpoint between liberal feminists, who frequently accept gestational surrogacy as a legitimate choice, and Marxist/radical feminists who are of the view that surrogacy is exploitative, a form of estranged labour and reveals the class and gender issues with respect to the same.[18]
A. Liberal Feminism and Freedom of Choice
Liberalism emphasises individual freedoms and equal rights and beginning in the 1960s, individual feminism or equity feminism was the first school of feminist jurisprudence.[19] The main philosophical tenets of this school are individualism and equality doctrine. This school stands for equality doctrine, which places women's access to rights on an equal footing with men’s and emphasises the freedom and right of the individual to make choices. As a result, it seeks to equalise the rights of women to enter into surrogacy agreements by granting surrogate mothers the freedom to decide. Liberal feminists advocate for this freedom to choose.
Furthermore, liberal feminism is also defined by its focus on achieving gender equality through political and legal reform within the framework of liberal democracy and informed by a human rights perspective. Liberal feminists such as Shulamith Firestone asserted that sexual division was based on biological differences and believed that this difference was not impossible to eliminate.[20] According to them, developments in science, technology and assisted reproduction presented the chance for a sexual revolution that would eliminate the disparities in sexual orientation that lead to inequity. The sexual revolution is a term coined by Wilhelm Riech in his book “The Sexual Revolution”. Given that the primary driver of women's exploitation was this biological—sexual division, the aim of this revolution was to achieve a situation in which biological distinctions between individuals could be viewed as culturally neutral. In general, liberal feminism adopted a positive stance, emphasising women’s right to determine their reproductive rights and therefore freely decide, for example, if they want to participate in surrogacy processes as surrogates or egg donors.[21]
The reproductive arrangements negotiated between intending couples from wealthy countries and the foreign surrogates from socioeconomically disadvantaged backgrounds that they employ to carry out their reproductive work are supported by several compelling arguments from liberals and liberal feminists.[22] The benefits that the intending couples enjoy, like the large financial savings, the legal and geographical distance from the surrogates, the freedom of choice, and the ability to contract, are frequently emphasised in defence of them.[23] Liberal feminists argue in favour of surrogate's choice by focusing on their financial relief, the subsequent financial capacity to care for their children, their freedom to use their bodies however they see fit, their freedom of choice, and their freedom to contract.[24] Additionally, feminists generally agree that women should be able to enter potentially risky behaviour if they have given their voluntary and informed consent.[25]
Individual autonomy under liberalism has also been supported by various scholars based on the lack of any evidence of social harm in surrogacy practices. But now there is enough evidence emerging especially from transitional economies like India, Nepal, Thailand, Cambodia, and Mexico that surrogacy involves systematic exploitation of structural inequalities and violates human rights, women’s bodies and integrity.[26] Moreover, Mary Lyndon Shanley in her article on “Surrogate Mothering” asserts that the ability of women to be able to alienate themselves from the baby growing inside them is a liberating act that justifies that women are not emotional.[27]
Thus, it can be effectively concluded from the arguments presented that liberal frameworks perhaps only focus on individual freedom, fair contractual relationships, performance of contract and other legal and political considerations while possibly ignoring certain essential race, class and gender ramifications on all parties involved.
B. Marxist Feminism and Reproductive Exploitation
Marxist feminism is a subset of feminist theory and politics that draws its theoretical inspiration from Marxism. It is characterised by its critique of capitalism which is an economic and political system based on private ownership of means of production for profit and a system of institutions, practises, structures, incentives, and sensibilities that encourages the exploitation of labour, alienation of people, and curtailment of freedom. Empowerment and equality for women cannot be attained within the confines of capitalism, according to Marxist feminists.[28] According to this, the main cause of women’s exploitation in society is capitalism. Commercial Surrogacy has been seen by such Marxist feminists as an exploitative method of controlling women’s bodies and retaining access to their reproductive choices and bodily autonomy along with buying and selling of their labour power in the name of freedom of choice; commercialisation of women’s bodies and their reproductive capacities.[29]
Women have fought tooth and nail to change the narrative of biology controlling their destiny; the harsh division of labour which restrict women’s capabilities to their reproductive abilities. However, many feminists fear that in turning the womb into a commodity, society will once again value women for their reproductive capacities.[30] This fear is exacerbated by the strong possibility that, because of economic coercion, surrogacy will occur for the benefit of the rich at the expense of poorer women.[31]
Furthermore, requiring a surrogate mother to decide even before pregnancy about her parenthood expressions, during and after birth, represses any feelings that may emerge towards the child during pregnancy or childbirth, and giving others the power to hold her guilty if she diverges is alienation.[32] Hence, some of the arguments that emphasize women’s empowerment as reflected in the surrogate mother’s ability and power to be able to detach from the feeling of motherhood while the foetus grows inside her, violates the integrity of women who may develop an attachment for the child.[33] Moreover, erasing a birth mother from her maternal identity and denying her such rights within surrogacy contracts can only be possible under the garb of patriarchy.[34]
For some feminists, surrogacy was above all just another form of patriarchal oppression that allowed men to intervene and exercise greater control over women’s bodies. They rejected the proposal of liberal feminism and opted to act as a kind of feminist resistance against assisted reproduction techniques and surrogacy to eradicate them.[35] It is also argued by feminist scholars that surrogacy in particular that assisted reproductive methods in general indicated the patriarchy's desire to seize control of women's reproductive ability and put it at the whim of the market.[36] This practice strengthened gender preconceptions and helped to solidify others, such as the idea that women are biologically predisposed to procreation and nurturing.
One of Marx’s major contentions was that so-called “free labour” is never free. This is primarily because the workers don’t own factors of production and have to work under a boss; they must sell their labour as a commodity in the market. Although one would say that they have the choice to shift jobs, they will always have to work under/for someone; this “choice” does not reflect freedom. Along similar lines, we can view surrogacy and argue that although the surrogate has the freedom and right to do whatever they like with their body, is it truly a choice? There is another theory that Marx proposed that can be used to examine surrogacy through a Marxist feminist lens, the theory of alienation and estrangement. It states that since workers don’t own what they produce, this high human activity of production becomes alienated and estranged.[37] Thus, Marx and Engels have argued that capitalism converts workers into mere machines. However, as it is believed that labour cannot be fully separated from the person, there is always something of the workers that goes into the finished product.[38] Here if we apply this theory to surrogacy, based on the contract and the cost they paid, the intended parents have a legal claim to the child. Pregnancy becomes a type of waged labour when a commercial surrogate receives payment for her services. She no longer has a claim to the result of her effort, only the compensation. Additionally, surrogacy contracts frequently contain provisions that restrict the pregnant person's freedom to select their doctor, the types of foods they are allowed to eat while pregnant, and other aspects of the pregnancy process that are significantly influenced by the intended parents. Therefore, Marxist terminology would have stated that the labour performed by commercial surrogates is alienated or estranged labour. The Marxist-feminist philosopher Kelly Oliver uses Marx’s theory of estranged, or alienated, labour to analyse surrogacy, arguing that “whereas much of Marx’s analysis of estranged labour applies only metaphorically to other forms of labour, it applies literally to surrogacy.”[39] Moreover, the labour of surrogacy can be seen as “doubly estranged;” the surrogate is seen, and sees herself, as a fragment of a woman, a womb and/or egg. Her body itself is seen as a machine that can be rented out.[40]
Many Marxist feminists also view surrogacy as akin to prostitution. Prostitution and surrogacy are compared not for moral reasons but rather for similarities in discourse.[41] Marxist feminists point out that surrogate mothers and prostitutes both earn less than their clients, which creates alienation in the capitalist system. Women are pushed by poverty to sell their bodies, which are the only precious possessions they have. Barbara Katz Rothman observes that like prostitution surrogacy is an intimate relationship, in both these activities, women’s bodies are more remunerable; hence, women from poor socio-economic backgrounds become more easily bioavailable to this market.[42] The other similarity based on this is that most women who choose these activities (prostitution and surrogacy) as an earning option do so because of poverty and as it pays better than any other work available to young, unskilled, and often illiterate women.[43] Most of the women involved in prostitution are trafficked and most women willingly participate in surrogacy knowing that it is exploitative to enhance the socio-economic status of their family. Andrea Dorkin the well-known American Marxist feminist, states that “motherhood is becoming a new branch of female prostitution where women can sell reproductive capacities the same way old-time prostitutes sold sexual ones but without the stigma of whoring because there is no penile intrusion.[44] It is the womb and not the vagina that is bought.[45]
To sum up Marxist feminist views, surrogacy is not a real choice for women because no woman would rationally choose it, it’s exploitative and coercive in nature; surrogacy makes pregnancy a form of dehumanised labour and lowers the dignity of women; surrogacy also commodifies women’s body.
III. Conclusion
There are several tenants of feminism that are challenged by surrogacy: the right to reproductive choice being a major one of these. After a thorough understanding of various standpoints by feminists on surrogacy, it can be concluded that unless various historical, social, cultural, and economic contexts are taken into consideration while setting up labour frameworks, women will continue to be exploited, their role in the society will always be diminished and their biology will continue to define and control their destiny. We have seen that diverse feminist perspectives exist on commercial surrogacy; each school has its position based on its philosophy. Their contributions have only served to spark discussion on surrogacy regulation from a feminist or women's standpoint. According to these school of thought, the surrogate mother has a significant role in the conversation about surrogacy and can express her rights and interests related to the process of acting as a surrogate mother; therefore, the issues pertaining to the surrogate mother must be given due consideration when drafting laws or making policy.
References
[1] Pacific University, 'Four Waves of Feminism' (2024) <https://www.pacificu.edu/magazine/four-waves-feminism> accessed 26 January 2024
[2] Ibid
[3] K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1
[4] Assisted Reproductive Technology (Regulation) Act, 2021
[5] Constitution of India 1950, art 25
[6] Lieber, KB, 'Selling the Womb: Can the Feminist Critique of Surrogacy Be Answered?' (1992) 68 Indiana Law Journal 1, <https://www.repository.law.indiana.edu/ilj/vol68/iss1/7/> accessed 14 January 2024
[7] Navaneeta Rath, ‘Looking Beyond Feminism: The Dynamics Behind & The Demands Ahead’ [2021] 8 International Journal of Advance and Innovative Research <https://iaraedu.com/pdf/ijair-volume-8-issue-3-iv-july-september-2021-part-2.pdf > accessed 28 January 2024
[8] Gerda Neyer, and Laura Bernardi, ‘Feminist Perspectives on Motherhood and Reproduction’ [2011] Historical Social Research / Historische Sozialforschung 36 JSTOR <http://www.jstor.org/stable/41151279> Accessed 28 Jan. 2024
[9] Anne Phillips, ‘It’s My Body and I’ll Do What I Like With It: Bodies as Objects and Property.’ [2011] Political Theory 39 JSTOR <http://www.jstor.org/stable/41502590.> Accessed 28 Jan. 2024.
[10] Neyer (n 9)
[11] Ferguson, A., Hennessy, R., & Nagel, M. 'Feminist Perspectives on Class and Work' (2004) Stanford Encyclopedia of Philosophy <https://plato.stanford.edu/entries/feminism-class/> accessed 14 January 2024.
[12] Parks, J, 'Gestational Surrogacy and the Feminist Perspective' in E Sills (ed), Handbook of Gestational Surrogacy: International Clinical Practice and Policy Issues (Cambridge University Press 2016) 25-32 <https://www.cambridge.org/core/books/abs/handbook-of-gestational-surrogacy/surrogacys-past-present-and-future/176183E29225D5F20D727DEF9449EB97> accessed 14 January 2024
[13] Kane K, ‘Surrogacy in Mythology’ (SheThePeople, 3 August 2017) <https://www.shethepeople.tv/news/surrogacy-in-mythology/> accessed 14 January 2024
[14]S Kusum, 'Commercial Surrogacy & Feminist Perspectives' (18 October 2016) Site Title <https://writingsonsurrogacy.wordpress.com/2016/10/18/commercial-surrogacy-feminist-perspectives/> accessed 14 January 2024.
[15] Ibid
[16] Lieber (n 7)
[17] Ibid
[18] Kelly Oliver, 'Marxism and Surrogacy' (1989) 4 Hypatia 95.
[19] Ferguson (n 12)
[20] Terrats N, ‘Surrogacy and Feminist Movements’ (IDEES, 11 June 2020) <https://revistaidees.cat/en/gestacio-subrogada-i-feminismes> accessed 14 January 2024
[21] Ibid
[22] Kusum (n 15)
[23] Ibid
[24] Ibid
[25] Deonandan (n 21)
[26] Sheela Saravanan, A Transnational Feminist View of Surrogacy Biomarkets in India (2018) 53-54
[27] Deonandan (n 21)
[28] D Rice and M Galbraith, 'The Encyclopedia of Political Thought Marxist Feminism' (16 November 2008) Wiley Online Library <https://onlinelibrary.wiley.com/doi/abs/10.1002/9781118474396.wbept0653> accessed 14 January 2024.
[29] Terrats (n 24)
[30] Lieber (n 7)
[31] Ibid
[32] Deonandan(n 21)
[33] Ibid
[34] Ibid
[35] Terrats (n 24)
[36] Terrats (n 24)
[37] A Holmstrom-Smith, 'Free Market Feminism: Re-Reconsidering Surrogacy' (2021) 24 University of Pennsylvania Journal of Law and Social Change 3 <https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1261&context=jlasc> accessed 14 January 2024.
[38] Ibid
[39] Ibid
[40] Heather (n 26)
[41] Heidi Tinsman, “Behind the Sexual Division of Labor: Connecting Sex to Capitalist Production” (1992) Yale Journal of International Law 241-7 <https://core.ac.uk/download/pdf/72837481.pdf > accessed 14 January 2024
[42] Deonandan (n 21)
[43] Ibid
[44] Kusum (n 15)
[45] Ibid
Dhairya Gupta is a first-year law student at Jindal Global Law School. Her areas of interest are Constitutional Law, Criminal Justice, Gender and Social justice and the intersection of law and politics.
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