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Vanderbilt Journal of Transnational Law

First Page

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Abstract

India's commercial surrogacy business has been the focus of intense media scrutiny for the past decade. In that time, it has grown from a $400 million industry to over $2 billion. While the growth in the surrogacy market has been rapid and widespread, the Indian government has struggled to regulate it as a business, as a medical practice and for the protection of surrogates. After nearly a decade of proposed draft bills, the government has yet to enact comprehensive regulation. It is now clear that the state will not ban such a lucrative source of income. Scholars of surrogacy have begun to take note of the Indian market. In the United States, where surrogacy has provoked debate and theorizing among feminists, scholars are increasingly interpreting the meaning and the effects of surrogacy in other countries using theories developed from the experience with surrogacy and assisted reproductive technology (ART) in the United States. Despite the academic discourse, no proposals for regulation of Indian surrogacy have been forthcoming. The discussions remain theoretical and decontextualized, with Indian surrogacy described with generalizations and media-driven stereotypes. More importantly, scholars consistently fail to incorporate the emerging ethnographic accounts of surrogate lives or to contemplate a regulatory agenda based on the lived realities and the political economies of family and state in which poor Indian women become surrogates.

This Article breaks new ground by closely reading the emerging ethnographic accounts of surrogacy to establish that current feminist frames are incomplete. It incorporates the political economy of surrogacy, the economic relationship of surrogacy to the Indian state, and the political economy of surrogates' families, which have all been missing from the current dialogue. The Article concludes that the benefits of surrogate labor outweigh its disadvantages and develops a new framework--of surrogacy as labor--that will, for the first time, protect the surrogate as a worker.

Surrogacy, as a fairly open regulatory field, provides feminists with a unique opportunity to devise appropriate legislation. In order to inform that legislation, the Article explores regulations in the United States and South Africa and argues that, given the unique political economy of Indian surrogacy and the commercial nature of the surrogacy market, broader labor protections are required to undergird the current private contract regime. In other words, legislation must take the business of surrogacy seriously as a business and treat Indian women who engage as surrogates as its workers. Only by marrying labor regulations and standard contract terms will surrogates be protected from exploitation and able to demand fairer terms and conditions from affluent commissioning parents and local clinic owners who currently profit from their labor.

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