LEGALISED COMMERCIAL SURROGACY AND ECONOMIC NEOLIBERALISM IN INDIA: THE CONTEXT OF HUMAN RIGHTS
Authors: Kumar Vinod 
Published: April 2019

The study throws light on the industry of commercial surrogacy (hereinafter referred as CS) and its various unexplored dynamics and angularities in the city of Delhi, which is the capital of India and hence, may be considered as a representative study for the CS regime in India. The study analyses the socio-economic status of surrogate mothers vis a vis the commissioning couples and the deep entrenched socio economic inequalities embedded in the structure of the society facilitating boom of the industry as the prime reason.  This paper mainly places the CS in human rights framework at the core of the discussion. Firstly, the paper concludes that CS which is a form of Assisted Reproductive Technology (ART) is a bliss, if used ethically and for altruistic purposes. However, it may prove a bane and can create serious crises of right to life and human dignity, especially when it operates for commercial purposes that too in unethical and unregulated informal framework. Unethical and unregulated informal framework in the context has potential to pose serious crises of human rights for both, the surrogate mother and the prospective child. Neither India nor does the international human rights law has any normative legal framework to regulate the regime of CS. The paper contextualizes CS, particularly in the neoliberal economic paradigm which India has adopted ever since 1991 and pursuing rigorously, and thereby forges links between the exploitation of surrogate mothers vis a vis economic liberalization. The analysis of the statistics of the study provides a fair idea about the functioning of the regime of CS and forces us to rethink about the idea of legalization of CS.The main hypothesis of the paper is that CS is an obvious offshoot of the ideology of economic neoliberalism and free market operating in Indian society with deep entrenched structural inequalities resulting into chronic and acute mass poverty. India has indirectly legalized CS through various judicial pronouncements. The researcher/author attributes legalization and institutionalization of CS to neoliberal economic paradigm which has enabled poor women to manage their two square meals on the one hand; it has opened doors for their institutionalized exploitation up to the extent of risking their lives and dignity, on the other hand. The paper argues that instead of performing its constitutional duties towards poor, the state by legalizing CS is encouraging poor women to lease out their wombs to meet their basic needs. This raises a serious question mark on the very legal and moral foundation of Indian state. The paper also argues that CS is actually a commoditization of a woman’s womb making outsourcing of fertility and procreation possible under free market economy. Not just the womb of the mother, the child in the womb is also treated as a commodity equally a subject matter of free market economy. Hence, CS is nothing but a naked human exploitation manifested under the domain of neoliberalism and economic globalization. Finally, the paper concludes that legalization of CS is a brazenly pervert and diabolic neoliberal utilitarian strategy of harvesting despair and mass poverty embedded in the deep entrenched socio-economic inequalities which even the rhetoric of neoliberal values cannot justify.