Introduction: Womanhood is Motherhood

In Indian culture, the dominant perception of Indian womanhood and femininity resides in the imagery of the ‘ideal Indian mother’ who is a naturally fertile, married and heterosexual woman. Motherhood is considered as a raison d’être for a woman’s existence, and dharma (sacred duty) must be fulfilled for descent survival that elevates her status as a goddess in society (Nandy 2017, 16–17). A woman is venerated as a mother and expected to fit into this prevailing cultural narrative for her own emancipation (Zairunisha 2016, 139). In other words, she has to embrace motherhood as her ultimate destiny in which infertile woman has no place and value. In this respect, the advances in reproductive technologies have paved the way to fix the problem of infertility by providing technological options in the field of conception, contraception and abortion. Now, it has become possible for women to enhance their reproductive freedom and choices to control their bodies (Nisha 2021, 1). The extensive development of assisted reproductive technology (ART) and its exponential growth has further transformed the understanding of women’s emancipation in relation to motherhood (Corradi 2021, 2).

New conceptive technologies, especially surrogacy, facilitate infertile couples, women and others to have their own genetic child. A surrogate woman uses her procreative rights and makes her autonomous choices to offer her procreative services to another woman to fulfil her maternal desire and essence of being a woman. But whether her right to procreate or to gestate a child can be extended to the right to procreate for other women too needs exploration. This conception of womanhood to motherhood brings with it a bunch of questions that need to be investigated such as is motherhood a real choice for a woman and a surrogate? How does a woman make her bodily choices regarding motherhood and surrogacy in a strong cultural imperative? Also, is it emancipatory for a woman to become a mother? Leading feminist thinkers such as Simone de Beauvoir, Shulamith Firestone, Adrienne Rich and Sara Ruddick have directly attacked the institution of motherhood, its patriarchal conceptualisation, women’s sexuality and maternal work. They have attempted to separate ‘birthing’ from ‘mothering’ in order to establish genderless mothering that paves the way to understand inherent questions and contradictions regarding women’s bodily choices and motherhood in the context of ART and Surrogacy. For instance, Simone de Beauvoir does not see motherhood as women’s destiny, fulfilment and ultimate happiness but a shared work, an ambiguity, and a matter of free choice. She argues that “Becoming a mother…means total emancipation for her, if she sincerely desires her pregnancy” (de Beauvoir 2009, 48). For de Beauvoir, choices are necessary for women’s becoming autonomous subjects, and technologies have the potential to envisage hopes for future possibilities of free choices in terms of ‘voluntary motherhood’ against patriarchal ideology of ‘enforced motherhood’. Similarly, Shulamith Firestone has given paramount value to technology and supported the use of artificial reproductive technologies to seize to control of woman’s biology and maternal function. As Firestone (1970, 11) says, “the reproduction of the species by one sex for the benefit of both would be replaced by (at least the option of) artificial reproduction: children would be born to both sexes equally, or independently of either”. Many feminists have considered technology as an emancipatory tool for women’s reproductive freedom and choice. But are these reproductive technologies always there to emancipate women and enhance their choice? It seems not! There is a dark side to these technologies that they have hinted at in their writings, as well as explored at length. The irregularities in ART laws, political, social, economic contestations, unethical, discriminatory treatment and exploitation commodification of surrogate mothers do not need justification, which was further exacerbated through global reproductive tourism in the country. In the past decades or so, these complexities and irregularities in commercial surrogacy have drawn attention to the government of India. In order to regulate the practice and process of commercial surrogacy, the government has prepared the surrogacy (regulation) Bill, 2016. After a long effort to pass legislation regulation surrogacy bill, 2019, on 25 December 2021, it has become the Surrogacy (Regulation) Act, 2021, in which surrogacy is banned on commercial basis and confined to the strict heteronormative and patriarchal form and on altruistic grounds that excludes the unmarried, widowed, divorced, lesbian, gay, bisexual, transgender and queer couples (Kumar 2021, 10). The Surrogacy Act, 2021, again invites numerous issues and presents challenges regarding the complexities of the traditional ideology of motherhood and vulnerability of surrogate mothers that defeats its primary purpose to facilitate individuals through a novel mode of procreation.

The paper thus aims to explore and critically analyse various feminist perspectives on ‘hope’ and ‘critique’ of emancipatory reproductive technology in the context of the present Indian problem of surrogacy which is not only diminishing women’s freedom but also crushing their maternal self by viewing them merely as baby manufacturing machines for patriarchal purposes. In doing so, I will analyse the deeprooted phallocentric prejudices persistent in society and their influence on reproductive technologies, and their internal link with women’s body. It seems that surrogacy of any kind is providing new opportunities to women to enhance their procreative choices, but often disable them and contribute to the perpetuation of patriarchy in new ways by treating women’s bodies as procreative machines, which has a deleterious impact on them. The paper is divided into four sections—the first section of the paper traces the patriarchal ideology of motherhood and its relation to reproductive technologies to understand women’s subordinated position in society. I have incorporated various feminist perspectives to understand the separation of ‘birth’ from ‘mothering’ that created a possibility for surrogate mothering. Also, I have critically discussed how motherhood as a mandatory social institution influenced by tradition and culture that further regulates and gives meaning to technology. The second section analyses the situation of surrogate mothers in the Indian context. The complexity of tradition along with the new Surrogate (Regulation) Act 2021 is discussed. I have tried to comprehend the social situatedness of a woman, surrogate mother and reproductive technology. The third section engages with various feminist debates and discussions regarding surrogacy to show the vulnerability of a surrogate mother on commercial and altruistic grounds. I have concluded by arguing that any form of surrogacy is not an option for emancipating a woman from her subjugated status unless we change the patriarchal mindset of the society and make people understand that motherhood is not an essence but a choice for a woman. The mother’s work provided by a surrogate is valorised, but a surrogate mother has to negotiate with her situation without real freedom. With that in mind, an attempt will be made to critically analyse the meaning of women’s choice in relation to the use of reproductive technologies within a feminist framework.

Motherhood as an Ideology and Practice

The patriarchal ideology postulates motherhood within marriage as a fundamental institution for women by essentialising and naturalising their feminine identity in terms of their sexual, procreative and nurturing role. In others words, It assumes and expects, as Andrea O’Reilly (2016) says that “all women want to become mothers and that maternal desire is innate to all women”. Barbara K. Rothman attempts to show the dualistic patriarchal reflections on motherhood in her book, Recreating Motherhood, by pointing out that in a patriarchal society women are seen as mothers of men’s children rather than men being seen as the children of women. Rothman (1989, 15) states that “Men control women as daughters, much as they control their sons, but they also control women as the mothers of men’s children. It is women’s motherhood that men must control to maintain patriarchy”. These socially assigned roles or identity markers lead to the perpetuation of the conviction that women are sexually different from men and their fulfilment lies primarily in heterosexual relations within prescribed maternal practices.

Feminists around the world found this essentialist interpretation of a woman’s biology unfit and an obstacle to her freedom. They attempted to separate mother work from gestation in which technology can be a helping hand for women if you use it carefully. They think that mother work should be a collective effort done by family and society together. Simone de Beauvoir (2009) in her seminal text, The Second Sex, first published in French in 1949, presents the distinction between ideological understanding and lived experience of motherhood to show that a woman is not born but becomes a woman. She traces the emergence of the patriarchal definition of women in biological, historical and cultural forces that uses the term ‘womb’ as a substitute for being women. De Beauvoir defines women’s embodied subjectivity as situated bodies whose primary and prescribed sex role is to perpetuate the species. She begins her book by raising the question what is it to be a woman? In her attempt to answer this question, de Beauvoir (2009, 21) says, “Woman? Very simple, say those who like simple answer: she is a womb, an ovary; she is a female: this is word enough to define her”.

Patriarchy projects women’s body and maternal functions as their essence which is a situation and ambiguous by nature. De Beauvoir (2009, 45) argues, “I refuse the idea that [the biological facts] form a fixed destiny for her. They do not suffice to constitute the basis for a sexual hierarchy… they do not condemn her forever after to this subjugated role”. Showing the ambiguity of motherhood, she claims, Pregnancy and motherhood are experienced in very different ways depending on whether they take place in revolt, resignation, satisfaction or enthusiasm (de Beauvoir 2009, 546). She suggests that the child should not be the only limit of a woman’s horizon. It is necessary for mothers to have the right and freedom to engage in a public realm outside mother-care work. She says most of the time that maternal choices are not a result of conscious decision-making that leads women to live in self-delusion, that is an inauthentic life. She was hopeful about the rapid technological growth that can eliminate masculine supremacy and lead the path for women’s freedom from biological boundaries. She believes that technological discoveries are crucial for women’s bodily independence and free maternal choices. Supporting artificial insemination, de Beauvoir (2009, 141) further claims that:

With the artificial insemination, the evolution that will permit humanity to master the reproductive function comes to completion. These changes have tremendous importance for woman in particular; she can reduce the number of pregnancies and rationally integrate them into her life, instead of being their slave.

Nevertheless, technologies cannot solve all our problems on their own. De Beauvoir was not naive of the fact that the technologies that can help women to gain freedom and choices can also be used as a tool against them. De Beauvoir says, “… in a male dominated world, a male backlash is only to be expected. Men will use it as an additional means of applying pressure” (Schwarzer 1984, 68). Such Beauvoirian insight regarding technological hope and dangers was further developed by many feminist thinkers.

In a similar vein, Firestone (1970) in her work, The Dialectic of Sex, argues about the need for the use of artificial reproduction in order to seize control over human’s ‘tyranny of reproduction’. Firestone (1970, 10-11) strongly claims that:

The elimination of sexual classes requires the revolt of the underclass (women) and seizure of control of reproduction: not only the full restoration to women of ownership of their own bodies, but also their (temporary) seizure of control of human fertility—the new population biology as well as all the social institutions of childbearing and childrearing…the reproduction of the species by one sex for the benefit of both would be replaced by (at least the option of) artificial reproduction: children would be born to both sexes equally, or independently of either…the tyranny of the biological family would be broken.

Inspired by Karl Marx and Engels’s class dialectics, Firestone (1970, 4) has emphasised that sex class oppression and biological conditions of reproduction make women dependent on men. Feminists must not only question this cultural interpretation but the organisation of culture itself, its nature. According to her, thus, the primary purpose of the feminist movements should not only be the elimination of male privilege but “the sex distinction itself: genital differences between human beings would no longer matter culturally” (Firestone 1970, 11). She shares the idea with de Beauvoir that women’s nature, such as pregnancy, parturition, gestation and childbirth functions, limit them from other activities and space is deleterious for their freedom which can only be changed by using technology; artificial insemination and artificial inovulation are already reality. Choice of sex of the foetus, test-tube fertilization…are just around the corner…scientists are working on the development of an artificial placenta…virgin birth—could be developed very soon (Firestone 1970, 179). Noticeably, at the same time, she cautions that any changes cannot be successful without social transformation in terms of gender, kinship and marriage. She has insisted that (reproductive) technology alone can never ‘liberate’ social relations, rather would be more likely to further subjugate women than to liberate them. She has explicitly depicted the chaos done by cloning, atom bomb and LSD (Frankin 2010, 35). In her view, both science and technology are contradictory and dynamic by nature and essential for human development, but they themselves are unable of creating “the imaginative constructions that preceded by several centuries the corresponding technological acumen” (Frankin 2010, 155). It thus remains important to ask how social structures produce technology and give meaning to technological inventions before their use and implementation. It is undeniable as Sara Frankin notes that Firestone is one of the few feminists who discussed and took the emerging reproductive biology, its implications for women, birth control and conceptive technology and related issues to the greater extent (Frankin 2010, 32).

Adrienne Rich is a feminist thinker who has made a comprehensive attempt to debunk the ideology of patriarchal motherhood that is significant to discuss. In her book, Of Woman Born: Motherhood as Experience and Institution, Rich (1976) has provided two different meanings of motherhood—motherhood as a potential relationship refers to women’s capacity to procreate, giving birth, its lived experience, whereas motherhood as an Institution aims mothering practices through prescribed social norms and regulations employed to control women and ensure the dominance of men within patriarchal power structures (Rich 1976, 13). Like de Beauvoir, she emphasises inherent ambivalence in motherhood; it can be a matter of joy, frustration, dedication, irritation and love for mothers. Similarly, there is always a conflicting situation between child love and freedom to choose her life. As Rich (1976, 15) says, “anxiety, physical weariness, anger, self-blame, boredom, and division within myself: a division made more acute by the moments of passionate love, delight in my children’s spirited bodies and minds, amazement at how they went on loving me in spite of my failures”. At the same time, Rich (1976, 42) observes that the institution of motherhood forms conditions, rules and regulations under which women’s choices are created and decide that needs woman’s maternal self instead of her inelegance. In this way, she has illustrated many stark differences between the experience and institution of motherhood that played a significant role in order to attain emancipation from the patriarchal trap. Thus, Rich’s work provides clear ground to analyse the concept of motherhood and the reason behind women’s subordination. Such maternal concepts are crucial for patriarchal discourses about women as they structure their life-world by locking women’s identity in maternity and coercing them to perform the maternal role as their destiny.

Another leading Feminist philosopher of her time, Sara Ruddick (1989) in her publication, Maternal Thinking: Towards a Politics of Peace, engages with the idea of mother work and birthing. She argues that women should not be identified by their biological essentialism, relation with children and family but rather the ‘work’ they produce and contribute to society. For Ruddick (1989, 211), birthing and mothering are two distinct activities that should not be merged:

I do not believe that any one relationship between birthgiving and mothering is mandated by morality or nature. What I do believe that to divide new life from the life on which it depends—the hope and aims of a particular woman—is to violate the connectedness symbolized by birth and aimed for in maternal nurturance and nonviolence.

According to her, any society should not be gender-biased towards women’s biology. Similar to de Beauvoir and Rich, Ruddick (1989, xi) claims that maternity is not an essence of women, but rather a mixed sentiment, “Maternal love itself is a mix of many feeling, among them: infatuation, delight, fascination, pride, shame, guilt, anger and loss”. She further argues that it is not only women who can be a mother but men, lesbians and celibate participate in the act of mothering. And therefore, mothering should be attached to women or seen as natural to them. In this way, Ruddick has emphasised genderless mothering which is separate from birthing. However, it is not wrong to say that birthing is a natural phenomenon for a woman, but the act of pregnancy, birth and lactation are independent of other maternal work and measured by the life of one child, and are brief episodes in years of mothering (Ruddick 1989, 48). She further talks about the technology in a brief where she understands reproductive technology as a way to intrude on and exploit women’s bodies in unprecedented ways (Ruddick 1989, 48-49):

It is increasingly clear that the envy that lies behind the minimalisazation of birth fuels a technocratic and legal apparatus able to intrude on and exploit women’s bodies in a unprecedented ways…even if it becomes technological possible to produce children without women’s bodies, women ova will be intrusively and not painlessly extract for extrauterine reproduction.

Through these words, Ruddick has shown the danger behind the technological use and abuse for women that further created a possibility to understand the ideology of motherhood independent from mother work and opens up the door for maternal labour. In this way, the writings of these leading feminist thinkers have provided the platform and encouraged to think birthing distinct from mothering as a choice-based job to contribute to the family and society economically, its complexities and issues. In the next section, I have tried to engage their writings with the Indian problem of surrogate mothers within the framework of patriarchy to understand how much this choice-based job is emancipatory for them under the changing meaning of birth and mothering.

Social Construction of the Indian Woman and Surrogacy

In India, the fundamental question of The Second Sex ‘What is a woman?’ is answered in no way different from de Beauvoir’s articulation of the global patriarchal view of the woman as a womb, a uterus and a female. Like other societies, Indian society is also predominantly patriarchal in which women are subjugated and dominated by male-centered ideology. Ironically, in many Indian sacred texts, women are venerated but only as mothers and not as free feminine subjects. In the Taitariya Upanishad, the invocation ‘Matru Devo Bhave’ (Mother is a Goddess) is projected as an expression of deep respect for mothers. Similarly, Indian tradition also lauded women’s sexuality solely in terms of motherhood. They are regarded as the universal feminine energy and latent power (Shakti) through whom God creates, preserves and destroys the universe. In this regard, Kamala Ganesh (2010, 73) points out the gap between the idealisation and real-life mothers:

The mother-goddess can be interpreted as expressing ideas of power, autonomy and primacy in the widest sense of the terms. She conveys not so much the idea of physical motherhood but a world view in which the creative power of femininity is central; the goddess mediates between life and death and contains in herself the possibility of regeneration.

The ideal Indian mother is seen as a manifestation of the divine mother goddess, who is expected to hold a respectable status in society. However, women are primarily recognised and defined by their procreative function and capacity. And any kind of distortion in this capacity is not only viewed as unnatural but also a denial of the very meaning of being a woman or female. They are expected to accept motherhood as their inevitable destiny. As Sudhir Kakar (2015, 90) states:

For an Indian woman, imminent motherhood is not only the personal fulfilment of an old wish and the biological consummation of a lifelong promise, but an event in which the culture confirms her status as a renewer of the race, and extends to her a respect and consideration which were not accorded to her as a mere wife.

After getting married, they have to live under tremendous pressure and suffer social stigmatisation in case they do not become pregnant. Without any alternatives for having a child, they face the risk of socio-family abandonment and other calamities in their life (Zairunisha 2020). For this reason, it becomes essential for them to avoid being charged with infertility. To fulfil their compulsive/compelled desire for having a child, they would be willing to take recourse to whatever makes it possible for them to achieve their social status as mothers. In such vulnerable situations, the availability of surrogate mothers seems to be a technological boon for infertile women making available new choices. But is this choice can be called her real choice when she is socially coerced to choose technology to save herself from the social stigma of infertility? Ruth Hubbard aptly points out the threats of such choices in these words, “As ‘choices’ become available, they all too rapidly become compulsions to ‘choose’ the socially endorsed alternative” (Arditti et al. 1984, 27). It can be said that, in patriarchy, individual choices are structured in accordance with the social needs of men.

In the case of Indian women, the social need is to procreate once own male child and technologies, Firestone mentions, are there to serve these socially imposed choices rather than an individualistic one. As Kakar (2015, 88) aptly states, “respect for pregnant woman lies deep in a religious and historical tradition which equates woman with ‘mother’, and views the birth of a male child as an essential step in the parents’ and the family’s salvation”. In this way, instead of providing choices to women, modern medical science and technologies are disabling them and contributing to the perpetuation of patriarchy in new ways by treating women’s bodies as machines under which women are often entrapped and compelled to procreate. Choices are more problematic in Indian context where commercial surrogacy resulted in exploitation of poor and needy women and altruistic surrogacy remains as valorised procreative labour without any compensation. In making surrogate mother’s arrangements, the infertile couple hire a fertile woman who can be artificially or through IVF inseminated to get impregnated with the husband’s sperms or donor eggs. She gestates the baby and, finally, surrenders it to the intending couple.

In India, commercial surrogacy is seen as a choice-based economic job in which both the parties—commissioning couples and the surrogate—are supposed to involve themselves without any coercion. The commissioning couples freely invest money and choose when, where and from whom they want to have their product, i.e. child. Similarly, like sperm donor, surrogate also has an equal opportunity to sell her reproductive capacities. She chooses surrogacy herself among other available job choices. As Robertson (1983, 29) argues that surrogates “choose the surrogate role primarily because the fee provides a better economic opportunity than alternative occupations”. In a 200 billion rupees business, a surrogate can earn between 300,000 and 400,000 Indian rupees if she is impregnated in the first attempt of artificial insemination, and in her second or fourth attempt, she may receive 100,000 to 200,000 rupees per pregnancy. Here, the question can be asked how does a woman freely choose to become a surrogate, if it is regulated by commercial or other constraining parties? Can this choice be called a real choice? The supporters of the above arguments fail to understand the coercive constraints and exploitation underlying such allegedly choice-based practices.

Surrogacy is not a concrete particular choice, since both the women who hire and the women being hired are exploited and victimised. The economically privileged infertile woman chooses surrogate mother, because she is forced by patriarchal endorsement of motherhood and demand for a genetic child; otherwise, she has no status in society. On the other hand, the women who choose to become surrogates are involved in it out of their coercive material situations (Overall 1987, 119). In that situation, how can we call surrogacy a free choice? It is important to take note of the question raised by the Canadian Advisory Council on Surrogate Mothers (1984, 84), which is equally applicable in the Indian context also, “Can a person of minimal education and financial well-being be said truly to choose a way of life that is stigmatised by much of society, that is physically dangerous at times, that leaves her with little control over her earning power, and that can cause her considerable legal complications?” Certainly not! It is observed that maximum surrogates are unemployed, less educated and come from lower-class backgrounds. These women enter in surrogacy to risk their lives and allow their exploitation because of economic necessities, social coercion and lack of appropriate alternative choices. It further confirms de Beauvoir’s and Firestone’s observation that patriarchy is so internalised by women in their social upbringing that they become accomplices in their own exploitation and subjugation.

Patriarchal manipulation of women’s psychology through essantialisation of motherhood is another reason for their exploitation. Social pressures generate and strengthen the desire for motherhood in such a subtle way that, to say it in Janice Raymond’s words, “women love to be pregnant …and women will fulfil those choices” (Corea 1985, 233). Surrogates are encouraged to think that their choice for surrogacy is not wrong since they are helping, without indulging in sexual acts, those women who have failed to fulfil their maternal desire. One of the surrogates in NDTV (Indian television channel) interview said that “although we get paid for this, but we are not doing something illegitimate. We are doing it for social welfare, in the sense helping women to fulfil their womanhood…” In this way, patriarchy controls their choices in ways that they think these are the only available choices for them. Gena Corea (1985, 233) writes in Mother Machine that “men are controlling not only what choices are open to women, but what choices women learn to want to make.” So, it is not just limited to the fact that choices of women are being controlled but also that their motivation to choose differently is also being controlled.

The control is extended to surrogates’ bodily choices as well. Since in commercial surrogacy, a woman is choosing to use her body for monetary gains; they become ‘alienated’ from their own embodied self. A surrogate mother surrenders her body as well as her subjectivity for baby production. The words such as love, pride, satisfaction and attachment become detached from reproductive labour. They may start seeing themselves as wombs or incubators available for rent. Like, in India, the practice of surrogacy is such that surrogate mothers are treated not as persons but choiceless ‘commercial instruments’ for producing babies. And even if we accept, they have choices; these choices are based on inequality of choices. In the case of commercial surrogacy, there is always a hierarchy between both parties. The commissioning party chooses a surrogate. They pay charges and demand their specific reproductive requirement. Alternatively, a surrogate does not choose her customer. The commissioning couple takes her body on rent for nine months or so and arrange to provide suitable eggs and sperms for manufacturing a baby. Christine Overall (1987, 128) rightly claims that “a woman can no more choose to be a surrogate mother than a room can choose to be leased, or a pet can choose to be bought”. In this scenario, it has become significant to reflect upon the regulatory and legislative approaches adopted by the Indian government regarding surrogate arrangements.

It is evident that due to the availability of economic reproductive labour in India, commercial surrogacy has not only been demanded at the national level but rather turned out to be an exploitative transnational leading business marker with a high demand for less expensive Indian surrogate mothers. As a result, women have made themselves available as procreative machines for surrogate profession regardless of their physical, mental and social damages. Thus, in order to regularise surrogacy, the Indian government has always adopted the required directive measures in the form of laws, bills and guidelines. As Sneha Banerjee and Prabha Kotiswaran have given a brief account of the journey of surrogacy (Regulation) Act 2021. In 2005, the Indian Council of Medical Research (ICMR) has realised National Guidelines for Accreditation, Supervision and Regulation of Assisted Reproductive Technology Clinics in India. Between 2008 and 2012, the significance of surrogacy is explicit when one separate chapter was included in various versions of new reproductive technology bills for discussion and debates to propose some liberal laws and rules for the smooth functioning of the surrogate business. However, from 2012 to 2016, the government has put some strong restrictions on parties involved in surrogacy arrangements which were based on various conditions such as marital status, sexual inclination and nationality and was more focused on clinics than surrogates. In this regard, a significant attempt was made in 2016 when the government proposed the surrogacy (Regulation) Bill along with the ART (Regulation) Bill which prohibits commercial surrogacy and allows it on altruist grounds under restricted circumstances. The Bill was introduced in parliament in 2019, reintroduced in 2020 and became the Surrogacy (Regulation) Act on 25 December 2021. The Bill clearly indicated that both commercial and compensatory surrogacy are banned and it is only limited to altruistic causes for heterosexual couples (Banerjee and Kotiswaran 2021, 87). The government’s legislative initiative to ban commercial surrogacy and allow surrogacy for ‘altruistic’ considerations may control the exploitation and commodification of surrogate labours. But is it a solution for women’s situational vulnerability where motherhood is so highly glorified that they are doomed to become mothers regardless of their empowerment in the public realm? Is not banning commercial surrogacy an attack on women’s bodily rights? How can it be justified that altruistic surrogacy is a choice-based act and not an exploitative imposition on women? To find out the answers to these questions, we need to enter into the feminist debates to understand the meaning of freedom and coercion in the context of surrogacy.

Feminist Debates on Surrogate Freedom

Globally, there have been polarised feminist debates and discussions regarding the rejection or acceptance of commercial and altruistic surrogacy and its relation to freedom and coercion. Primarily, there are two cohorts of feminists on the question of surrogate’s freedom to undergo a reproductive procedure or refused it. Liberal feminists or supporters of contractual surrogacy claim that it is her body and she has a right to choose surrogacy, undergo to the arrangements and receive a fair commission for her reproductive labour. For them, denial of their ‘right to procreate’ is illegitimate and a violation of women’s autonomy and freedom. Contrarily, the opponents of contractual surrogacy such as Marxist and radical feminists perceive surrogacy as another patriarchal tool to oppress women and objectify their maternal body for commercial purposes. Most Indian feminists adopted this feminist approach believing that surrogates are subjected to double exploitation—patriarchal and capitalist. They consider surrogacy as a highly gendered, coercive, stigmatised, discriminatory, exploitative and unequal work labour. Let us understand these point of views in detail.

Feminist proponents of commercial surrogacy believe in the slogan ‘Woman’s body, woman’s right’ that gives freedom to a woman’s bodily and procreative actions. They state that childbearing and childrearing are two distinct activities of mothering. This separation allows women to think procreation independent from the parenthood responsibility and can choose contract pregnancy as maternal labour. Carmel Shalev argues that bearing a child for another couple is an expression of freedom to choose and a well-informed consent of what she wants to work. Shalev (1989, 11-12) states that “the refusal to acknowledge the legal validity of surrogacy agreements implies that women are not competent, by virtue of their biological sex, to act as a rational, moral agent regarding their reproductive activity”. In a similar vein, Lori Andrews (1989, 92) insists that “a contract is a contract…it’s dangerous to say that we are ruled by our hormones, rather than our brains”. Feminists argue that as a rational being, a woman is capable enough to make her choices and make a decision regarding her body. She should not be treated as a dependent or relative being for her own decisions.

Feminists view the decision regarding commercial surrogacy as an act of freedom taken by an autonomous agent whose consent is completely informed and competent to make a decision. As Shalev (1989, 103) states that “if autonomy is understood as the deliberate exercise of choice with respect to the individual’s reproductive capacity, the point at which the parties intentions should be established is before conception”. The question arises here how can we know that the woman’s consent is informed and her choices are free from all coercive forces? In this regard, the defenders of contract pregnancy assure that their choices are noncoercive and fair. A surrogate mother is given every relevant information related to procedure, usual emotional and physical experience during pregnancy, rules, laws and compensations. She chooses and is aware of the commissioned parents and contract negotiations. Apart from that, she gets all the required facilities and a positive environment for childbearing (Shanley 1993, 621). But noticeably, our choices and decisions are not beyond our social situatedness. Also, many times surrogates are unable to comprehend the information given to them due to the technical terminologies and noneducational background. These are many external and internal factors such as caste, class, education, race and religion, wittingly and unwittingly, that influence our decision-making that cannot be ignored. Feminists’ response to this is that the final choice is in the hand of a surrogate and she is free to refuse the contract in any unwarranted situation.

They argue that maternal labour is not different from any other physical or mantel ‘wage labour’ produced by human beings and selling and earning out of it also manifest their freedom. It is protected by state laws and conditions which is strictly followed by the parties. Surrogate gets all the compensations and necessary privileges under the government laws and rules. As Shalev (1989, 157, 94) mentions, refusing to sell one’s reproductive labour will reactivate and reinforce the state’s power to define what constitutes legitimate and illegitimate reproduction, whereas permitting for a wage will recognise a woman’s legal authority to make the procreative choices regarding their reproductive capacity. Now, the issue is women who are not aware of their rights and privileges and fail to avail themselves, further creating problems and confusion among them. It is crucial for women to be conscious of their rights. Also, a woman's right to rent her womb and to provide surrogate services is based on her ‘personal liberty’ and ‘property right’ over her body which she can use for her purposes. (Borah et al. 2020, 81). Thus, prohibition of contractual gestational service or banning surrogacy is enforcing women into their unpaid traditional nurturing work which confines them within their domestic immanence and restrict them to financially contributing their maternal labour to the family and social domain.

The feminist stance against commercial surrogacy makes a strong point that contractual birth involves money and contract, a mother is coerced and her choice and autonomy is negotiated. Her body is treated as an object or property to be sold and bought which is an emotionless enterprise. Elizabeth Anderson (1990, 82) comments that any form of contractual birth involves, “treating women’s labour as just another kind of commercial production process violates the precious emotional ties which the mother may rightly and properly establish with her ‘product’, the child”. She further says, “the ways we treat and understand women’s reproduction labour, women are reduced…to objects of use” (Anderson 1990, 92). It is observed that the money matters related to contractual birth is affected by the dominant structures of the society and established gender hierarchy between men and women. In this way, a woman’s freedom and choices cannot be understood in isolation or ignoring her social situations that play a significant role in her lived experience. In the Indian context, it is explicit the way surrogate body is commodified, objectified and limited to baby manufacturing machines in a negotiable environment. Here, the question arises that is banning contractual surrogacy is the answer to problems surrogate mothers are facing? What can be done for infertility issues and the couples’ desire to have a child?

Feminists reject contractual surrogacy, defend altruistic surrogacy and perceive it as an option for infertility and an answer to woman’s questions on exploitation. They state that motherhood is a natural phenomenon and normal to women, but converting the normal into artificial destroys its real nature and is inappropriate (Chodorow 1978). They further argue that producing motherhood is a gift of love that is violated because of paid mother labour. We can ask that does altruistic surrogacy is noncoercive? Also, is unpaid surrogate arrangements nonexploitative? Feminists suggest that altruistic surrogacy is nonexploitative by nature. For instance, a sister entering into surrogacy for her sister says “I am not a prostitute, I have got the right to do with my body as I please…I have not broken the law. I think what I have done is a very caring and loving thing. I have created a life” (quoted in Anleu Roach 1990, 45). But the present argument cannot justify all reproductive situations and provides an unclear and incomplete picture of hierarchical social structure. Social institutions are regulated and controlled under the various structures of patriarchy that can manipulate and coerce someone’s emotion for its purpose. Similarly, women can also be manipulated and exploited emotionally for others without any compensation. In this way, it can be said that altruistic surrogacy will be as exploitative as commercial. In comparison to contractual pregnancy, it gives less bodily rights and choices to women to exercise on themselves.

Furthermore, like commercial surrogacy, altruistic surrogacy also is an attempt to perpetuate the patriarchal ideology of womanhood and motherhood in the name of ‘selfless gift’ or nurturing responsivities. Due to emotional constraint, a surrogate is neither getting money nor any compensation for the highly valorised maternal services which is not better than contractual labour wherein she has autonomy and freedom to choose or reject her service. It may be possible that women willingly participate in altruistic surrogacy to help other women in their desire to have children. She may not have any emotional, social, moral pressure and compulsion. Nor experiencing any sentimental bond with children but only want to help. In this scenario, pregnancy cannot be exploitative and coercive. Feminists are not denying such situations where mothers do surrogacy out of love and care nevertheless; such situations cannot be generalised. Also, on the basis of a particular situation, we cannot claim that altruistic surrogacy is a nonexploitative way of reproduction. Relationships in families are not devoid of obligations, constraints, guilt, pressure and manipulations (Anleu Roach 1990, 45). There is always a possibility of maternal coercion.

Conclusion: Moving towards Genderless Freedom

To that end, it can be said that although reproduction is natural to a human being, it should not be socially assigned as the essence of human existence or reason for our being into this world. The patriarchal conception of womanhood is the root source of surrogate mothers and other women’s exploitation that essentialises motherhood for all women as a mandate not as a free choice. Giving immense value to biological connection with male child forces women to go for technological assistance without any real choice that they can exercise in decision-making. As Amrita Nandy (2017, 135) says:

The decision about motherhood—whether to have a child or not—many not always be framed as a choice. Women many not see motherhood as an optional role that they can accept or refuse. In fact, the cultural drumbeat about motherhood makes women see it as a mandate, and those who are unable to bear children are driven to deep despair, as can be judged.

So, banning commercial surrogacy or allowing altruistic surrogacy cannot be the solution for women’s vulnerability and their exploitative situation unless they serve patriarchal purposes and bolster biased gender norms through media, family, law, medicine or any other institution of society. In this scenario, a woman has to negotiate with her existence, with her mothering and with her freedom that can be deleterious for all aspects of her life. As long as such a patriarchal mindset works and women accept motherhood as their ultimate destiny, there will be no real choices available to them. In order to achieve real choice, we need to address the choices of individuals through social transformation for eradicating patriarchal structures of male domination. We need to understand that technologies by themselves cannot be able to free women from the myth of so-called glorified motherhood as their biological destiny. Thus, I conclude by saying that contrary to women’s hope for the emancipatory role of technological development, these gendered technologies are contributing to the continuation of their enslavement through enforced motherhood. Technological optimism needs to be reviewed with a sense of caution for facing the challenges and threats for women from new reproductive technologies.