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Rethinking LiberalFeminist Jurisprudence

on Surrogacy
JURISPRUDENCE I
II YEAR
V TRIMESTER
2014

Harshitha Dammu
[2056]
Date of Submission: November 20, 2014

National Law School of India University,


Bengaluru

Introduction
In the backdrop of the failure of the Liberal-Feminist framework to correctly address a basic
jurisprudential issue relating to surrogacy contracts their enforceability, it is imperative to
look at alternative theories.
India is one of the few countries where commercial surrogacy is still legal. Everyday a great
number of surrogacy contracts are entered into and often these contracts become the subject
matter of legal disputes. Interestingly, there is no law to review and regulate surrogacy
contracts. So the real question is essentially jurisprudential and not legal - whether surrogacy
contracts, that are currently enforceable ought to be and if yes, to what extent.
In the absence of a proper law on surrogacy, the judiciary it seems, has taken the liberty to
import a legal principle from another domain of law that is only seemingly related to
surrogacy Contract Law. Now, the basic principle of Contract Law is the principle of
formal equality, which is very characteristic of Liberal thought. The researchers first
argument is that it is inappropriate to extend this principle to surrogacy contracts, which are
of a completely different nature.
The Indian judiciary is also evidently influenced by feminist writings on surrogacy,
particularly those by the Liberal-Feminists.1 According to them, surrogacy is an expression of
a womans autonomy and a means to fight patriarchy. The second argument then, is that the
current feminist theory of law fundamentally misconceives labour in the context of
surrogacy.
The next argument is that the Liberal-Feminist jurisprudence effectively renders it impossible
to convincingly put an end to the debates on enforceability of surrogacy contacts. Lastly, it is
the researchers opinion that an alternative theory such as the Marxist analysis of surrogacy
provides useful insights into the nature of surrogacy contracts and to a large extent helps
address the issue.

Henceforth Feminist.

The Arguments
1) The liberal framework assumes that all individuals in a social set-up are free and have
equal rights.2 A surrogacy contract is reduced to a mere exchange of service for
money.3 While this is true of most regular contracts, surrogacy contracts must be seen
in a different light altogether.
The real problem starts when the Liberal Contract law overemphasises on equality and
free choice of the individuals involved. By doing so it is conceals the social construction
of the surrogacy arrangement.4
Surrogacy contracts are essentially social transactions.

It is a very specific socio-

economic relationship between the parties to the contract that leads to the contract in the
first place. The surrogate mother is always a financially insecure female and the couple,
the other contractual party are always well-off.5 If this class difference between the
parties did not exist, there would never have been a surrogacy contract i.e. a class
inequality is inherent to surrogacy contracts.6
It is true that a class difference between parties to a contract does not always mean that
the contractual terms are not free and fair. But in a surrogacy contract, the surrogate
mother doesnt have equal rights with that of the other party as the liberal framework
suggests.7 For instance, the right to bargain for a better price. 8 Such is the desperation for
money and the fear of losing out to another surrogate willing to lend her services at a
lower price that the surrogate almost never uses this right.
The Liberal surrogacy contract therefore misrepresents the truth of this labour process. It
perpetuates a capitalist society insofar as the surrogates labour is exploited and is covered
up under the guise of formal equality in contract. Parties to surrogacy contracts can never
be truly equal.9 This is a fundamental social reality that the Liberal Jurisprudence ignores.

Mary Shanley, Making Babies, Making Families, 102 (Boston: Beacon Press, 2002).
Id.
4
Kelly Oliver, Marxism and Surrogacy, 4(3), Hypatia, 95 (1989).
5
Heather Dillaway, Mothers for Others: A Race, Class and Gender Analysis of Surrogacy, 34(2),
International Journal of Sociology of the Family, 313 (2008).
6
Supra note 4, at 98.
7
Supra note 5, at 318.
8
Supra note 1.
9
Supra note 4, at 98.
3

2) The Feminist Jurisprudence views surrogacy as essentially an expression of a


womans autonomy.10 This also implies that according to them it is a means for
women to assert themselves and in a way fight the institution of patriarchy. The
argument here is that surrogacy does not really liberate women as the Feminist theory
contends.
Surrogacy arrangements merely appear to give the surrogate more control over herself.
The arrangement in reality disempowers her.11 How? - For one, the surrogate mother for
the period that shes carrying the child has no control over her own body. She is no longer
free to do as she pleases cannot abort, cannot choose the manner of delivery (can even
be forced to have a caesarean against her will).12 Her every action is closely monitored
what she eats, when she sleeps, even when she makes love to her husband. Her entire life
for a good period of 10 months is subject to the contractual restrictions imposed by the
arrangement.
Second, she is constantly reminded that she is not the mother of the child or even worse,
that she is a mere producer of a product. Child-birth, something that is supposed to be
a beautiful and natural process is now turned into a mere commercial exchange; a service
for money.13 The Feminist Jurisprudence seems to be ignoring the subtle effects of
surrogacy on a surrogate in their focus on a vague idea of liberation of women.14
Feminists in their support of surrogacy also ignore the fact that for most surrogates the
motivating factor to enter into the contract is need rather than choice.15 This begs the
question how does surrogacy ever make a woman more autonomous?
Therefore the only meaningful conclusion would be that the emphasis on free choice of
the individual ends up concealing the social context of the surrogacy arrangement. This
Feminist advocacy of surrogacy seems to be perpetuating patriarchy, the very institution
that the theory seeks to undermine.

10

Isabel Marcus, A Sexy New Twist: Reproductive Technologies and Feminism, 15(2), Law and Social
Enquiry, 253 (2006).
11
Thomas Frame, Children on Demand: The Ethics of Defying Nature, 151 (1 edn., Sydney: University of New
South Wales Press, 2008).
12
Supra note 5, at 314.
13
Supra note 11, at 152.
14
Emanuela Binachi, Is Feminist Philosophy Philosophy?, 132 (Evanston: Northwestern University Press,
1999).
15
Supra note 11, at 152.

3) The Liberal-Feminist framework justifies but not convincingly, the enforceability of


surrogacy contracts. The Liberal-Feminist jurisprudence makes no mention of ethics
of reproduction when it comes to enforcement of surrogacy contracts. 16 For some
inexplicable reason, the question of ethics remains a mere academic or at the most, a
policy one. The legal dispute involving surrogacy contracts is usually adjudicated
based upon formal equality-rights jurisprudence.
On the other hand, the pleas and contentions of the parties are almost always with regard
to ethics of reproduction.17 The courts merely concern themselves with the procedural
aspect of the contract, such as competency of parties to contract, existence of fraud,
misrepresentation etc. If the essential conditions are met, the surrogacy contract is always
enforced.18 The contract in actuality is never reviewed, in the strict sense. To the
researchers mind, this is one of the biggest reasons why Liberal jurisprudence fails to
correctly justify enforceability of surrogacy contracts.
The Feminist theory specifically, covers over the commercial aspects of the surrogacy
arrangement.19 As mentioned previously, the arrangement is viewed as an exchange of
service for money, even by the Feminists. Now, one of the reasons why Feminists argue
for surrogacy is that it gives a woman more control over herself. 20 The problem lies in the
fact that they do not show this in their theory. A closer study of the effects of surrogacy
on women in general shows the very opposite. The researchers personal say in this
matter is that the practice is truly degrading to women, causes the entire process to be
seen as only a commercial exchange and is also degrading to the surrogate baby who is a
mere product. The surrogate is literally a slave to the contract insofar as the contracting
father gets to decide rights and duties for the surrogate and in the larger picture is actually
oppressive to women and upholding patriarchy.21 While the practice of surrogacy may not
have caused these attitudes, it has certainly perpetuated them.22 Hence, the reasons put
forth by the Feminist theory in support of surrogacy contracts ought not to be taken
seriously.

16

Supra note 10, at 257.


Joan Callahan, Reproduction, Ethics and The Law, 62 (Bloomington: Indiana University Press, 1995).
18
Id, at 87.
19
Supra note 11, at 163.
20
Supra note 10.
21
Supra note 4, at 105.
22
Supra note 14, at 148.
17

Therefore it is not surprising that the Indian take on surrogacy that is in very informal yet
enlightening terms a potpourri of the Liberal and Feminist Jurisprudence fails to
convincingly justify enforcing surrogacy contracts.
4) The need to address the issue of enforceability of surrogacy contracts cannot be
stressed enough upon. In the absence of a coherent Jurisprudence on the issue, it has
become imperative to look at alternative theories. One particular critique of surrogacy
offered by Marxist-Feminists stands out.
They use of one of Marxs lesser known works on estranged labour to the study of
surrogacy. According to them, and the researcher agrees, this analysis of surrogacy
reveals hidden social relationships, in specific power relations between the parties to the
contract.23 In a capitalist society, the bourgeoisie control the means of production, in this
case the surrogate mothers womb.24 She is kept in her position as a labour by the
contractual restrictions upon her. This is typical class dialectics. The working class, here
the surrogate mother community is always oppressed and is never autonomous.25
The practice has a clear gender bias as the surrogate for reasons beyond human control is
always a woman.26 Proponents of surrogacy then are asking for women to be exploited.
Women as they argue are turned into machinery, used to produce flawless products for
the market and only produce when there is demand.27 It is clear then that surrogacy does
not liberate but oppresses women.
Their biggest argument is that the current ethics of reproduction promotes the exploitation
of women and perpetuates classism.28 These ethics view women as producers, babies as
products and reproduction as production all in a commercial exchange.29

23

Supra note 4, at 107.


Nancy Snow, In the Company of Others: Perspectives on Community, Family, and Culture, 160 (Maryland:
Rowman and Littlefield Publishers, 1996).
25
Id.
26
Supra note 5, at 318.
27
Supra note 17, at 65.
28
Supra note 24.
29
Supra note 24.
24

Conclusion
Even a cursory look at the Marxist theory of surrogacy has provided useful insights into the
nature of a surrogacy arrangement. The entire object of this paper has been to critique the
existing framework or theory on surrogacy on a very basic point of law enforceability of
contracts. It is not necessary to repeat the many shortcomings of the current framework but it
is important to look at what lessons can be learnt from the Marxist perspective on surrogacy.
At the outset, the extreme Marxist position of contempt for law and State machinery cannot
be adopted. One must instead presume that the Judiciary is capable of being in a position to
identify class and gender issues in the context of contracts and overcome them in the process
of adjudication.
Using the Marxist approach, surrogacy arrangements must be viewed as social transactions
resulting from a very specific social relationship between the parties. The principle of formal
equality here has no relevance to surrogacy contracts and must be done away with.
Surrogates must be recognised as having fewer rights and lesser autonomy in comparison
with the other the party to the contract, the couple. By doing this, the contract would be made
subject to the public policy question.30
If the class disparity between the parties is very wide, which is most often the case a
mechanism that reviews the contractual process must also be put in place. At present there is
nothing to restrict the enforceability of the surrogacy contract, apart from the traditional
contractual reasons.31 In conclusion, the current liberal jurisprudence errs by ignoring class
and gender issues inherent to the surrogacy contract and for this reason any jurisprudence that
seeks to address the issue of enforceability of surrogacy contracts must first address the
former.

30
31

Judith Baer, Ironic Freedom, 102 (New York: Palgrave Macmillan, 2013).
Supra note 17, at 62.

Bibliography

Emanuela Binachi, Is Feminist Philosophy Philosophy?, (Evanston: Northwestern


University Press, 1999).

Heather Dillaway, Mothers for Others: A Race, Class and Gender Analysis of
Surrogacy, 34(2), International Journal of Sociology of the Family (2008).

Isabel Marcus, A Sexy New Twist: Reproductive Technologies and Feminism,


15(2), Law and Social Enquiry (2006).

Joan Callahan, Reproduction, Ethics and The Law (Bloomington: Indiana University
Press, 1995).

Judith Baer, Ironic Freedom (New York: Palgrave Macmillan, 2013).

Kelly Oliver, Marxism and Surrogacy, 4(3), Hypatia, 95 (1989).

Mary Shanley, Making Babies, Making Families (Boston: Beacon Press, 2002).

Nancy Snow, In the Company of Others: Perspectives on Community, Family, and


Culture (Maryland: Rowman and Littlefield Publishers, 1996).

Thomas Frame, Children on Demand: The Ethics of Defying Nature (1 edn., Sydney:
University of New South Wales Press, 2008).