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The Political Economy and Legal Regulation of Transnational Commercial Surrogate Labor

The following blog post summarizes The Political Economy and Legal Regulation of Transnational Commercial Surrogate Labor (48 Vand. J. Transnat’l L. 1 (2015)) by Cyra Akila Choudhury.

The commercial surrogacy business in India, a $2 billion industry, has been the subject of intense media scrutiny. Though helpful to childless families and lucrative to Indian women who serve as surrogates, the practice presents legitimate economic, medical, and safety concerns. Possibly more troubling, many surrogates are likely exploited because they are poorer women in need of money. Accordingly, the industry is in urgent need of effective regulation. Although the Indian government has proposed many draft bills, the industry’s growth rate, lucrativeness, and vast range of issues have made it difficult to enact a comprehensive regulation or to ban the practice outright.

The article The Political Economy and Legal Regulation of Transnational Commercial Surrogate Labor, by Professor Cyra Akila Choudhury, Associate Professor of Law at Florida International University College of Law, examines ethnographic accounts of surrogates and concludes that the current feminist frames used to understand surrogacy provide an incomplete picture of the reality of surrogates’ experiences. The article notes that discussions on commercial surrogacy have remained theoretical and based on generalizations and stereotypes without any regard to the ethnographic accounts of the lives of surrogates. Professor Choudhury discusses the political economy of surrogacy, the economic relationship to the Indian state, and the political economy of surrogates’ families—all topics missing from the current dialogue.

This article does not discuss the ethics of commercialized surrogacy generally but argues against both a ban on the practice and regulation of the business as either healthcare or private contract. Further, it shows how the various discursive frameworks used to understand surrogacy do not capture its reality and oftentimes fail to even identify the surrogate as the vulnerable subject in contracting. To put the focus back onto the surrogate, the article discusses both the benefits beyond monetary compensation that surrogate women can receive for performing this service and the problems they face engaging in reproductive labor in an antinatalist state. It then argues that in order to create effective legislation, the government must analyze both the economic and social realities that surrogates face.

The article concludes that under the current circumstance of a weak state with insufficient means to address poverty,  the benefits of commercial surrogacy outweigh the negatives and suggests a new framework that will protect the surrogate. The article first looks at commercial surrogacy regulations from the United States and South Africa but finds that India’s highly industrialized form of commercial surrogacy requires a different regulatory approach. Thus, Professor Choudhury argues that broader labor protections need to be applied to the current private contracting regime. She argues that using a contract-labor approach that introduces standard requirements into surrogacy contracts would not only create more fairness in contracting but also protect the woman’s autonomy and reduce overall exploitation.

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