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Article 3 surrogacy

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Article 3 of the Declaration reaffirms the right of women and girls to physical and reproductive integrity. It calls on States to ensure that reproductive rights of women are upheld. Article 3 explicitly recognises forced pregnancy and surrogacy (both commercial and altruistic) as violations of the bodily integrity of women. It declares that medical research towards facilitating men to gestate and give birth to offspring constitutes sex-based discrmination against women. Furthermore, Article 3 urges States to work for the elimination of such practices.

The infiltration of gender identity into feminism, popular culture, and medicine has robbed the word “woman” of any meaning. The core of gender identity is that anyone who “feels” like a woman is a woman. Since feelings are subjective, women become a matter of individual description, instead of human beings who exist in flesh and blood.

Many trans-identifying men describe their “feelings” of being a “woman” in starkly stereotypical ways. The preference for long skirts and frocks and the desire to become a mother are the markers of being a “woman.” But these are merely expectations of femininity - the social role imposed on women. It has got nothing to with biological sex. A man who wears dresses does not become a woman, a woman is a costume which a man can simply open up and get into. But this is exactly the tenet of gender identity..

To that end, any practices or interventions which allow men to make further inroads into womanhood are also a violation of women’s integrity. Surrogacy is one such practice. A trans-identifying male in India has cryopreserved his sperm at a fertility clinic in Anand, Gujarat so that he can “be the mother who has fathered her baby”. He says of surrogacy: “To become a mother, I will not be shy in seeking surrogacy options across the globe.”

In India, it is the poorest of women who rent their wombs in exchange for money to meet essential needs such as those of housing. Many women who lost their jobs due to the COVID-19 pandemic have turned to renting their wombs to survive, support their families or to discharge other liabilities. Surrogacy offers desperate women the amount of money which they would have to otherwise accumulate over a period of time doing other jobs like domestic work. So quick money and desperation push Indian women to become surrogates.

Women who become surrogates are most often both Dalit and poor. On the one hand, surrogacy allows upper castes to exploit Dalit women’s reproductive capacities. by using them only as vessels for a foetus whilst maintaining caste “purity.” A diktat that commands that one must have offspring with a person of the same caste. On the other hand, women belonging to the upper castes may find themselves coerced into altruistic surrogacy by their family. But this is not an indicator of privilege between women because both commercial and altruistic surrogacy is an inherently exploitative practice all the same.

In India, the upper castes are considered to be fair-skinned; whereas the Dalits are stereotyped as dark-skinned. Popular culture perpetuates fair-skin as a standard of beauty for Indian women. So often people seeking to rent a womb prefer fair-skinned women belonging to the upper-castes.

Indian intelligentsia defends surrogacy as an option of livelihood for poor women. But, in reality, surrogacy does not alleviate women out of their deprived status. This is because Indian women are caught in a vicious cycle of poverty where they soon tend to run out of the money they get and rent their wombs again. Women, like men, are citizens of India who are entitled to positive measures for their upliftment; instead of having to resort to exploitative practices like surrogacy.

The State’s apathy and lack of regulation within the industry has aided surrogacy clinics to function with little to no scrutiny. Unlike the West, surrogate mothers in India are not given a copy of the contract and have no say in any of the medical procedures. Surrogacy causes adverse physical and mental health effects before, during and after the pregnancy in women. Surrogate women have to stay in the fertility clinic during the period of gestation with strict monitoring of their movement and daily activities, down to what music they can listen to. But the exploitation of women’s reproductive capacities is only becoming easier in India.. Financial institutions are now providing loans to couples seeking IVF or ART treatments.

Unlike liberal India’s claim, the circumstances under which Indian women find themselves renting their wombs are suggestive of anything but agency and liberation. It is dangerous to propagate it to Indian women, but now, it is presented as a means of providing “reproductive autonomy” to trans-identifying men. Dr. Sheela Saravanan, an Associate Professor at the Centre for Women’s Studies, University of Hyderabad, an academic expert on surrogacy argues that reproductive rights do not include the right to use someone else’s body to have a child. Dr. Saravanan’s statement holds ground for both men and women wanting to hire a surrogate.

Third-wave feminists in India criticise the exclusion of gay and trans-identifying men from the category of eligible commissioning parents in the pending Surrogacy Regulation Bill, 2019. They claim that it denies trans-identifying men the “opportunity” of surrogacy. But nobody is entitled to such a practice. That renting a womb would allow transgenders - or anyone for that matter - to have a child does not make surrogacy any less exploitative in nature.

The self proclaimed gender identity of an individual is no reason to compromise the bodily integrity of women. The defence of surrogacy in the name of rights of transgenders is in conflict with the rights of women. So it is crucial that we reaffirm the right of Indian women and girls to physical and reproductive integrity under Article 3 of the Declaration on Women’s Sex-Based Rights here.