Situating Canada's commercial surrogacy ban in a transnational context: a postcolonial feminist call for legalization and public funding.

• Author: Deckha, Maneesha
• Position: II. Transnational Surrogacy Through a Postcolonial Feminist Lens B. Postcolonial Feminist Analysis - Beneficial Elements through Conclusion, with footnotes, p. 59-86

2. Postcolonial Feminist Analysis--Beneficial Elements

   1. Economic Advancement

   Ethnographic accounts reveal that women who work as commercial surrogates in India view the work as a pathway to economic advancement. (164) While many do not embrace it as an ideal way to earn income, and may even find it extremely distressing, they value the work as a way to help their families at an economic level at which they never thought they could contribute. (165) On average, the fee that surrogates receive represents the equivalent of seven years of earnings. (166) In some instances, the fee is equivalent to twenty years of existing salary as domestic servants, agricultural labourers, or other similar waged work. (167) Even if a surrogate was earning the estimated average Indian per capita 2012 income of US$1,230, and only earned at the low range of the typical US$3,000-6,000 fee, the fee would still represent more than two and a half years of income from other available work. As Vora aptly remarks, these figures represent earnings "from which it is possible to imagine another future even if that future is simply coming closer to ends already mandated (dowry and wedding expenses, debt)." (168) Though not necessarily life-changing, the amount nevertheless offers most surrogates an economic elevation in income that distinguishes it from modes of trafficking related to the sex and domestic labour trades, as well as a relatively renewable use of the body that distinguishes it from the organ trade.

   Women who elect to be surrogates are aware of their life circumstances and have made choices about what would be best for themselves and their families. (169) Advocating respect for surrogates' decisions to participate in commercial surrogacy is not to deny the sense of compulsion many may feel to enter the industry, but to insist that it is too reductive to dismiss these choices because they materialize amidst disadvantaged life conditions and deep structural inequality. (170) As Katy Fulfer argues, despite being cautious about the rhetoric of choice and the potential to misunderstand women's commercial gestational acts as expressions of freedom, it is still possible to recognize agency in the context of, as she prefers to call it, "contract pregnancy", that is grossly asymmetrical in terms of the power relations it organizes. (171) Specifically, Fulfer draws on Jennifer Nedelsky's work on judgment and relational autonomy to "suggest that an exercise of judgment, which is a critically considered, intersubjective value claim, can be an exercise of agency and can encourage resistance to oppression, even though such situations are extremely oppressive." (172) While we may agree that surrogates' choices are deeply constrained, (173) we may hold such a view in some measure about all women and other marginalized groups given the ubiquity and daily manifestations of oppression. At some point, we need to respect the decisions of poor women instead of limiting their choices. It is not easy to ascertain when this should occur, but the views of surrogates themselves should lead such deliberations. (174)

   Indeed, it would be problematic to fall into the typical cultural framing that non-Western women's choices receive under Western feminist readings--that is, one that assumes that they are pawns of a dominant culture that glorifies motherhood or traditional gender roles, or that they are always already coerced. (175) As Ratna Kapur reminds us in her work on the sexual subaltern, to assume that women in non-Western contexts who sell their bodies in some capacity must be trafficked and evacuated of agency is to fall prey to colonial understandings of the lives and choices that non-Western women can make. (176) The same caution should apply to surrogacy work, particularly given that emerging Western feminist "accounts of Indian surrogacy are prone to [a] pattern of analysis that entrenches the reductive Western feminist representation of non-Western women ' as backward, poor, illiterate, culturally oppressed, and in need of rescue." (177) Indian surrogates themselves do express positive feelings about helping others experience parenthood (as do surrogates in richer countries), but also express appreciation for the respite that surrogate hostels give them from their normal domestic responsibilities and relationships. (178) Critically, they are also very clear about their desire to access the economic windfall a successful surrogacy pregnancy brings. (179) Some surrogates go on to serve as brokers themselves or "agent-caretakers", helping to recruit more surrogates and gaining power in the process vis-a-vis other women. (180) As Daisy Deomampo summarizes in relation to her fieldwork on surrogates and agent-caretakers operating outside of the hostel system, "[w]hile the system treats surrogates as though they are no more than wombs-for-rent, their voices and hopes reveal complex histories of women and families struggling to get into a global market on the best terms they can muster." (181) We need to see these women as making decisions that they believe necessary and allow for the very real possibility that in taking up gestational work they will contest the dominant and oppressive industry and social narratives about their work and, in doing so, exercise resistance and agency. (182)

   It seems necessary, given these findings, to respect women's desires to access the economic advancement that surrogacy promises and the related social or cultural capital that may flow from it. Abolition of the practice therefore presents as an extreme and paternalistic response. At the same time, respecting the economic advancement commercial surrogacy generates need not entail disavowing or minimizing the exploitative aspects of the practice and the structural inequalities of power that give rise to it. (183) Bailey attests to the value of feminist ethnographic work that contextualizes surrogates choices, but insists that normative scrutiny of highly stratified globalized reproductive practices as a social justice matter is still needed. (184) Part of this scrutiny, in my view, involves assessing the duties of sending states whose citizens create and participate in transnational surrogacy abroad, including how such states can cultivate domestic law reform that might curtail exploitative transnational arrangements. The next Part takes up this question of law reform in the Canadian context.

   3. Recommendations for Domestic Legal Reform

   In light of the globalized reverberations of restrictive ART laws at home, a postcolonial framework asks Canadian feminists to advert to global, and not just domestic, considerations of justice when considering how to revise the AHRA. As many of the practices comprising transnational commercial surrogacy at the present time in India are exploitative, a postcolonial feminist framework thus prompts sending nations, of which Canada is one, to evaluate the impact of the AHRA in inducing Canadians to travel to India or elsewhere in the Global South where commercial surrogacy may develop due to conditions of poverty if Indian bans most foreign couples from hiring a surrogate or, indeed, bans commercial surrogacy altogether. Another framing of this issue is to ask: "how can we ensure that the crossing of geographic and 'biological' boundaries does not become a crossing of ethical boundaries?" (185) The remainder of this Part explores this question, offering three suggestions for law reform in Canada to encourage Canadians to remain in Canada for their fertility needs, including using a surrogate, until better regulation exists in India and elsewhere in the Global South where Canadians may travel for surrogacy. These suggestions operate from the premise that if surrogacy and surrounding fertility treatments were more accessible in Canada, Canadians would not travel abroad to India and other countries where treatments are more affordable, but occur amidst exploitative conditions. The following discussion explains the steps Canada could take to make domestic treatment and services more desirable to Canadians and demonstrates why these steps resonate with feminist concerns about minimizing women's exploitation in the regulation of surrogacy. (186)

1. Repealing Canada's Ban

   The first suggestion for reform that a postcolonial feminist focus on cross-border surrogacy invites is extending the AHRAs tolerance for altruistic surrogacy to include commercial surrogacy as well. It seems obvious that legalization of the commercial option is the first step to make domestic access feasible and cross-border care a less considered option. (187) Moreover, allowing Canadians to pay women for surrogacy would very likely increase the number of women willing to be surrogates in Canada and thus help alleviate the current shortage. (188) Further, the AHRAs criminalization of commercial surrogacy has arguably contributed to the ongoing stigma attached to using a surrogate or to being a surrogate, thus exacerbating the social disinclination for women to act as surrogates even on an altruistic basis. (189) Lifting the commercial ban may help diminish this stigma and augment public acceptance.

   1. Alignment with Feminist Concerns: A Lack of Exploitation at Home

      Repealing the AHRA's ban on paying a woman to be a surrogate aligns with long-standing feminist impulses in this area to prevent exploitation. Feminist scholarship has noted the value that payment for gestational services can bring to the lives of both women who provide gametes or carry an embryo to term for another woman and those who receive those services. (190) Still, the fear that third parties (brokers, clinics) or recipients (commissioning parents) will exploit surrogates remains a primary argument against commercial surrogacy (although, as Cattapan has uncovered, it was never properly substantiated and simply assumed (191)). Recent empirical work on commercial surrogates, however, has provided a...