Cross-Cultural Comparisons on Surrogacy and Egg Donation

Interdisciplinary Perspectives from India, Germany and Israel

Sayani Mitra, Silke Schicktanz, Tulsi Patel, Sayani Mitra, Silke Schicktanz, Tulsi Patel

• Publisher: Palgrave Macmillan
• Year: 2018
• Print ISBN:
  9783319786698
• eBook ISBN:
  9783319786704
• Topic: Social Sciences
• Subtopic: Gynecology, Obstetrics & Midwifery
• Index: Social Sciences

This book is the first to bring together an interdisciplinary collection of essays on surrogacy and egg donation from three socially, legally and culturally distinct countries - India, Israel and Germany. It presents contributions from experts in the field of social and cultural sciences, bioethics, law as well as psychology and provides critical-reflective comparative analysis of the socio-ethical factors shaping surrogacy and egg donation practices across these three countries. This book highlights the importance of a comparative perspective to 'make sense' of controversies and transitions in this highly contested area of artificial reproductive technologies. It demonstrates how local developments cannot be isolated from global events and vice versa. Therefore, this volume can be used as a standard reference for anyone seeking to understand surrogacy and egg donation from a macro-perspective in the next decade.

© The Author(s) 2018

Sayani Mitra, Silke Schicktanz and Tulsi Patel (eds.)Cross-Cultural Comparisons on Surrogacy and Egg Donationhttps://doi.org/10.1007/978-3-319-78670-4_1

Begin Abstract

1. Introduction: Why Compare the Practice and Norms of Surrogacy and Egg Donation? A Brief Overview of a Comparative and Interdisciplinary Journey

Sayani Mitra¹ , Silke Schicktanz¹ and Tulsi Patel²

(1)

Medical Ethics and History of Medicine, University Medical Center Göttingen, Göttingen, Germany

(2)

Department of Sociology, University of Delhi, New Delhi, India

Sayani Mitra (Corresponding author)

Email: [email protected]

Silke Schicktanz

Email: [email protected]

Tulsi Patel

End Abstract

Introduction

Assisted reproductive technologies (ART ) are challenging the traditional perceptions of ‘natural’ kin-ties with increasingly dynamic processes of ‘kinning’ by moving reproduction from the domain of ‘nature ’ to the domain of ‘science’. Since the development and widespread usage of ART , starting with in vitro fertilisation (IVF) in the late 1970s, the separation of reproduction from sexuality has led to a new form of ‘medicalisation of reproduction ’ and initiated the first wave of discussion on the ‘natural’ vs. ‘artificial’ realm of reproduction . ART were initially developed to deal with the problem of infertility. But the involvement of third parties through the usage of gametes (sperms or eggs) or even wombs, as in the case of surrogacy, has led not only to new notions of motherhood , fatherhood, family and kinship, but have also given rise to markets around reproduction . The first cases of commercial surrogacy through IVF, back in the mid-1980s initiated an international debate. Various national laws began to either ban or permit surrogacy (McEwen 1999). Subsequently, legal and ethical debates evolved around the question of the extent to which a modern democratic state is to regulate the citizens’ right to reproduce by means of ART . The increasing phenomenon of commercialisation across the borders of a nation state through the selling and buying of gametes as well as the renting of wombs, labelled as ‘reproductive tourism’, furthermore triggered a worldwide debate on whether countries should allow or restrict access to such transnational fertility markets. Countries with permissive regulations allow commercial surrogacy and/or egg donation , while restrictive regimes forbid surrogacy and/or egg donation or allow the so-called altruistic models of practice. These legal debates on market regulation are closely interlinked with the ongoing debates of cultural and moral values, gender, kinship, class/caste/ethnicity issues and professional medical ethics related to reproductive care and women’s health in addition to eugenics. In an increasingly globalised world, connected through biomedicine and media, these ethico-legal stances are however not fixed, but are continuously negotiated.

With the expansion of technological research, its use and popularity, ART have opened up a globalised market in which the demand for eggs and their accessibility is skewed in favour of those economically well off. During the last decade, India was the leading nation to provide cross-border commercialised surrogate and gamete selling services because of its rather low prices (in comparison to western countries) and excellent internationalised health services. The country underwent a legal transformation in 2015, restricting cross-border surrogacy and allowing it only for intended parents (IPs) of Indian origin. Contrastingly, some industrialised countries like the UK and Canada allow only altruistic, non-commercial transfer of egg and sperm for the purpose of fertility treatment or research and maintain databases of all egg and sperm donors through strict licensing of fertility centers. Again, countries like Germany , Austria and Italy allow neither egg-sharing nor commercial procurement of eggs. Countries and states such as Germany , France, Belgium, Italy, Switzerland, Austria, Norway, Sweden, Iceland, China, Japan, Quebec (in Canada), Arizona, Michigan, Indiana and North Dakota (in the US) prohibit the practice of both commercial and altruistic surrogacy, whereas countries such as Australia, Canada (except for Quebec), the UK, the Netherlands, Denmark and Hungary allow the practice only with altruistic approaches. Israel , with a strong Jewish halakhic (rabbinic) tradition, has reached a middle-ground by limiting surrogacy under strict rules for those with the same religion. Russia, Ukraine, Georgia, Laos and Kenya along with selected states of the US have become the new destination for commercial transnational surrogacy, while Spain, Czeck Republic, South Africa and California (in the US) are known as the popular centres for egg donation services.

A Need for Comparison

Studies from bioethics, social and medical anthropology, as well as from a human rights perspective (e.g. Inhorn and Patrizio 2012; Crozier 2010; Shenfield et al. 2010) have identified major, unresolved problems in cross-border ART . These problems refer to unfair exploitation of surrogate mothers, lacking professional medical ethics, protection of children’s rights and various legal loopholes in cases of infringement of contracts between different unequal parties. These practices are often considered context-specific phenomena, and yet they are simultaneously related to the globalisation of ART . However, the concept of globalisation is not sufficient for analysing and understanding the complex interlinkages concerning how this technology spreads globally and locally adapts to fit into a specific cultural context. Therefore, we rely on conceptional approaches such as ‘technoscape’ (Appadurai 1996), which entails the global configuration of technologies including their economic and legal regimes in their connectivity as well as in their disjunctions. Another helpful concept is ‘glocalisation ’ (Alexander 2003; Roudometof 2016), here understood as the process of negotiation, refraction and mimicry between globalisation and localisation. Such conceptualisations are useful for analysing how the global and the local ART practices meet and how social, moral and religious conditions are negotiated within the global market of ART to create unique conditions for its adoption at various locations.

As this volume illustrates, the practices of surrogacy and gamete donation differ worldwide with regard to their ethico-legal frameworks. Economic parameters of ART , i.e. whether the use of ART is covered by public health insurance or is paid out of pocket, are also an obvious driving force for its global spread. While some public health systems cover all costs for IVF for every woman, others cover only a limited number of treatments only for heterosexual couples. The dramatic differences in costs for surrogacy and egg donation across the globe also explain the cross-national moves of IPs or even health care professionals in this field.

However, until now, no systematic comparison of such regimes and contextualised problems has been done. It has been rarely examined how the ethical, legal and sociocultural boundaries are negotiated within the different restrictive vs. permissive regimes. The making and unmaking of such ethico-legal regimes as ‘macro-politics’ needs to be examined along the ‘micro-politics’ of gender, class and ethnicity issues related to ART . Therefore we need to ask: Who is considered vulnerable or protectable on the grounds of different understandings of vulnerability? Who is granted what kind of reproductive rights or choices? Which understandings of reproductive needs, kinship or fertility underlie which type of regime? How is each current regime debated as consistent or incoherent? How do national, ethical and legal frameworks refer to cross-border or foreign reproductive care? What are the resulting paradoxes? This volume attempts to answer some of these questions. By choosing to discuss two of the widely used forms of ART practices—surrogacy and egg donation , it aims at filling this striking gap by comparing the ethico-legal and sociocultural debates in three different countries—India , Germany and Israel .

The selection of these three countries has been carefully made. India for a long time had a rather permissive, market-oriented regime, which became restrictive and underwent a dramatic change with the banning of commercial surrogacy for foreigners in 2015. At present, cross-border commercial surrogacy is only available for non-resident married (heterosexual) Indians and persons of Indian origin. Further, if the Draft Surrogacy Bill 2016 is legislated, surrogacy in India would only be permitted in its altruistic form. But questions of regulation and rights of surrogates still remain unresolved in India . Also the rights of egg donors and other actors who are part of other forms of ART such as IVF with egg or sperm donation, continue to go unregulated. Germany , in contrast, has had a very restrictive approach to ART since the 1990s. The German law permits neither commercial nor altruistic egg donation or surrogacy. However, commercial sperm donation is allowed in Germany and is practised in a legal grey-zone (Klotz 2013). But such a restrictive attitude towards the use of ART does not prevent German citizens from cross...

Table of contents

• Cover
• Front Matter
• 1. Introduction: Why Compare the Practice and Norms of Surrogacy and Egg Donation? A Brief Overview of a Comparative and Interdisciplinary Journey
• Part I. Comparative Views
• Part II. A System Under Transition: The Case of India
• Part III. A Restrictive System: The Case of Germany
• Part IV. State Supported System: The Case of Israel
• Back Matter