The Lok Sabha recently passed the Assisted Reproductive Technology (Regulation) Bill, 2020, which seeks to regulate the country’s assisted reproductive technologies (ART). It provides for ART clinics and banks, looking over processes like gamete donation, in-vitro fertilisation, and gestational surrogacy. From a feminist perspective on gender and health, we need to look at what this bill means for gender minorities and women when the state exercises bio-power over individual bodies. Furthermore, it is also important to look at how the intersections of capitalism, patriarchal morality, and medical ethics place women’s bodies in the broader structures.
Although the bill prohibits sex-selective assisted reproductive technology, its provisions require working in tandem with The Surrogacy (Regulation) Bill, 2019, which is still pending in the Rajya Sabha. There are some contradictions within the bill itself which become very confusing when coupled with the The Surrogacy (Regulation) Bill, 2019, another limiting legislation. For instance, while the ART Bill allows foreigners, single women, and married live-in partners to avail the facilities, the Surrogacy (Regulation) Bill does not.
Also read: Surrogacy Regulation Bill 2019: Altruism Or State Control Of Bodily Autonomy?
Moreover, the “commissioning couple” in the ART Bill is defined only as an infertile married one. Further, an oocyte donor should be “an ever-married woman having at least one alive child of her own (minimum three years of age).” Karti Chidambaram during the parliamentary proceedings, questioned why only married women who had a child should be a donor, citing the bill as ‘colonial, regressive and victorian‘. There is also a lack of clarity on how the data collected would be used or why Aadhar number of ‘anonymous’ donors is required or if there will be insurance coverage for surrogate mothers as ART is not covered by insurance. The NCP’s Supriya Sule also highlighted the exclusion of single men, who are already excluded in some ways in Adoption Rules of 2017.
The Standing Committee Report suggested “that commissioning couple should not just include infertile married couple but also couples in a live-in relationship and people in a same-sex relationship because excluding them would be discriminatory and violation of the right to life, personal liberty, reproductive autonomy and right to equality guaranteed under Article-14 to all persons under the Constitution of India.” It also argued for the inclusion of singles, divorcees, and people from the LGBTQ+ communities. The state did not consider any.
The Report also decoded how the altruistic spirit of the bill is killed by increasing commercialisation. The majority of the IVF clinics are in the private sector, exercising a form of bio-capital. There is a need for a humane approach to provide IVF facilities in government hospitals and institutions, thus making them more accessible. It also discussed the regulation of the cost of IVF as many poor couples will not be able to afford the same, which usually cost lakhs. Foreigners often choose to avail IVF in India because its cheaper here. The phenomenon is called medical tourism.
Towards a Shift in ART to Altruism
Donna Haraway says that “bodies are maps of power and identity” in A Cyborg Manifesto. Both The Assisted Reproductive Technology (Regulation) Bill, 2020 and the Surrogacy (Regulation) Bill, 2019 are the sites where identity and power are mapped through women’s bodies. The bills raise the questions of reproductive subjecthood, agency, exploitation, state’s interference in the private, the social and the biological. This can also be seen through the perspective of the law, women’s reproductive labour, and gender-caste-class-technology intersections.
There are essentialist notions that dictate who can have a “natural family.” Supplementing a privatised, biologised concept of body and personhood further codifies the genetic, social, and biological role. Rosalind Petchesky argues that through such technology, the body becomes individualised, privatised, ahistorical, and non-biographical. The act limits both surrogate mothers and people who would like to have children through surrogacy. The turn to ‘altruistic’ surrogacy is exclusive as it prohibits live-in partners, single people, and homosexuals within surrogacy. Similarly, the ART Bill propagates exclusion.
Sushma Swaraj had once stated that surrogacy for homosexuals is against the Indian culture, a defining position of the state vis-a-vis its understanding of what constitutes a family. Implementing the state’s heteronormative idea of family within laws is a paternalistic enforcement of regressive cultural ideals. The contention between ‘altruistic’ and ‘commercial’ is closely linked with the idea of morality. Both the bills show the shift towards altruism. ‘Altruistic Surrogacy’ does not involve any monetary composition, coupled with the idea of not putting a price on human body parts and life. This does not consider the failure of altruistic surrogacy in multiple countries.
Altruism favours a specific type of family – nuclear, private, and heteronormative, almost similar to the state’s stance on family in the discourse on same-sex marriage rights. While capitalism is also a factor in exploitation and increasing commercialisation, it does not place altruism as the only viable option. It is not applicable, especially for non-normative identities like trans persons and same-sex couples (and inter-caste couples too at times). It cannot be denied that surrogates’ bodies are seen as rented wombs but solely focusing on this displaces the question of women’s reproductive labour.
Biopower and Social Management of Family by the State
In a way, the ART bill is a social measure of constructing and managing families, prioritising only heterosexual couples, that too when India’s total fertility rate is below the replacement level as per the National Family Health Survey. The broader understanding of the construction and management of families is linked with biopolitics, which stems from Foucault’s theorisation of biopower – the power over life.
The state often exercises bio-power to control the population and individual bodies. However, it extends to family and what kind of family constitutes the population. Foucault also argued that “bio-politics involved the politicisation of the life of individuals and populations and the management of the economy through state-directed population science.”
In a more straightforward sense, bio-politics would mean governing bodies; and bio-capital would imply profiting upon these same bodies. The questions surrounding bio-politics and bio-capital are crucial considerations for reproductive technologies that involve ART. There are more ART clinics in the private sector in India, with the majority unaffordable for people with not enough financial resources.
Also read: Yogi Adityanath’s UP Population Control Bill 2021: The Communal, Caste & Gender Implications
A Worrying, Continous Trend of Limiting Queer and Trans Rights
Recently, NCERT’s Manual titled ‘Inclusion of Transgender Children in School Education: Concerns and Roadmap’ was taken down from its website. An already questionable advertisement featuring a lesbian couple was taken down with moral panic and received backlash from a politician from the ruling party. The limiting Transgender Persons (Protection of Rights) Act, 2019 is still a law even after constant, persistent resistance from the trans community.
The government at the centre has repeatedly made its stance clear on same-sex marriage rights. It considers marriage only a possibility between a biological man and a biological woman with no ruling on same-sex marriage rights. All these developments seem like a substantial backlash after the crucial legal battles such as the NALSA, Section 377, Right to Privacy that have been won in recent years by the LGBTQIA+ community in India.
In terms of ART, the turn towards altruism in both surrogacy and ART Bill regulations is a regressive step that enforces patriarchal norms of morality onto women’s bodies while discarding their reproductive labour. While the bills raise multiple legal, ethical, and social issues lying at the intersection of gender, reproductive rights and technology, there is also the socio-moral issue of who gets to have a family as there is the fundamental exclusion of multiple groups of people, including the LGBTQIA+ Community.
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