Taboo Trades
Taboo Trades
Reproductive Labor in India with Prabha Kotiswaran
My guest today is Prabha Kotiswaran, a Professor of Law & Social Justice at King’s College London. Professor Kotiswaran’s main areas of research include criminal law, transnational criminal law, feminist legal studies and sociology of law.
She is the author of numerous books and articles, including Dangerous Sex, Invisible Labor: Sex Work and the Law in India, published by Princeton University Press (2011), which won the SLSA-Hart Book Prize for Early Career Academics. She joins us today to discuss two recent articles, linked in the show notes below, on egg donation and surrogacy in India.
This episode is co-hosted by UVA Law 3Ls Gabriel Andrade and Buddy Palmer.
Show Notes
About Prabha Kotiswaran
About Kim Krawiec
About Gabriel Andrade
About Buddy Palmer
Madhusree Jana and Prabha Kotiswaran, Legal (Dis)Orders A Feminist Assessment of India’s Assisted Reproductive Technology and Surrogacy LawsLinks to an external site., Amicus Curiae, Series 2, Vol 6, No 2, 300-323 (2025)
Jana, M., & Kotiswaran, P., Reproductive resistance, law, and informality: a critique of the Indian Assisted Reproductive Technology (Regulation) Act, 2021Links to an external site.. Journal of Gender Studies, 1-20. https://doi.org/10.1080/09589236.2025.2490844Links to an external site. (2025)
Prabha Kotiswaran, Dangerous Sex, Invisible Labor: Sex Work and the Law in India, Princeton University Press (2011).
[00:00] Prabha Kotiswaran: And in the context of surrogacy and art, I think these two laws, the irony of these two laws is that we, the country has experimented with every possible regulatory option there has been on surrogacy and art. We went from saying every, you know, all forms of commercial surrogacy and egg donation are fine to now to saying that it could only be performed by a close relative to now saying that it has to be highly altruistic. So we are at the other end of the spectrum right now compared to, if you look at countries around the world, we are really at one end of the spectrum. Very, very restrictive laws here.
[00:36] Kim Krawiec: Hey. Hey, everybody. Welcome to the Taboo Trades podcast, a show about stuff we aren't supposed to sell but do anyway. I'm your host, Kim Kravic. My guest today is Prabhupa Kotaswaran, a professor of law and social justice at King's College London. Her main areas of research include criminal law, transnational criminal law, feminist legal studies, and sociology of law. Professor Kodeshwaran is the author of numerous books and articles including Dangerous Sex, Invisible Sex Work, and the Law in India, published by Princeton University Press in 2011, which won the SLSA Hart Book Prize for Early Career Academics. She joins us today to discuss two recent articles linked in the show notes below on egg donation and surrogacy in India. Hey guys, thanks for joining me.
[01:40] Buddy Palmer: Hey, professor, excited to be here.
[01:42] Kim Krawiec: Why don't we start by having you guys introduce yourselves to our listeners?
[01:46] Gabe Andrade: Yeah, thank you. So I'm Gabe Andrade. I'm a three year old here at uva and I'm very much interested in the topic that we're discussing today because Buddy and I took Repugnant transactions last semester and talked a little bit about surrogacy and just kind of the effect that it has in the different regulations worldwide. And we wanted to learn a little bit more about it.
[02:06] Buddy Palmer: As Gabe mentioned, I'm Buddy. I'm also 3L here at UVA Law and taking Repugnant transactions last year was really a highlight of our experience here at uva. And we were really excited to jump right back into a topic that we previously discussed. And this was a great opportunity for that.
[02:21] Kim Krawiec: I'm so happy to hear you guys making a plug for repugnant transactions. Okay, so I think that you both mentioned a little bit of why you chose this episode. I mean, you both volunteered to be co hosts for this. Were there reasons beyond your introduction to it last year and Repugnant Transactions that made you interested in this topic?
[02:41] Buddy Palmer: I mean, I think, I think our introduction last year was a little bit more general and we focused a lot on the United States and our regulations. And I felt like in this class particularly, we've gone a little bit more worldwide and I think diving into a very specific culture's ideas on surrogacy and a donation was something that we were both really interested in and sort of expanding outside our comfort zone. And hearing from one of the leading scholars in the area was certainly at the top of our list, I think.
[03:07] Gabe Andrade: Yeah, for me it was more that I had written about surrogacy in India, but very briefly for our final paper last year. And, you know, I really wanted to dive a little bit deeper into that, understand the intricacies of it more. And like Buddy said, talk about, you know, know, this topic with one of the world's leading experts.
[03:24] Kim Krawiec: Yeah, we're really lucky to have her on today and the, the entire, the rapid changes that they've been through in terms of their approach to, I'm going to call it reproductive labor, as she does. Right. So it's been really staggering and I'm excited to get her take on sort of what's led to some of that. So we have a lot of questions for Prabha today, and I know that you guys have questions, your classmates have questions. What is it that you're hoping to get out of our discussion with her today?
[03:55] Buddy Palmer: I particularly am really interested in the regulations that have been passed just in the last 10ish years and sort of how the legal, the strict legal frameworks have come about after some more liberal ideas in the past. And now we're entering sort of a more conservative era in the lawmaking of India. So I was really interested to hear her take how that sort of come about and sort of the social and political reasons for that sort of shift.
[04:19] Gabe Andrade: I'm very much interested in the cultural aspects in India itself, as well as hearing about how she thinks that some of the specific provisions in these different acts affect the individuals in that country, how it could be better mediated, and I guess, you know, the effects that it could have not only in the country but worldwide.
[04:36] Kim Krawiec: Anything else from either one of you that you are hoping to learn or want to say before we get started?
[04:42] Buddy Palmer: I don't think so. I'm just excited to start.
[04:44] Gabe Andrade: Yep.
[04:45] Kim Krawiec: Okay, great. Let's join the others. Hi, Prabha, thanks for joining us today.
[04:54] Prabha Kotiswaran: Thank you for having me, Kim.
[04:56] Kim Krawiec: So can we just start by getting you to introduce yourself to our listeners?
[05:01] Prabha Kotiswaran: Sure. So I am professor of Law and Social justice at King's College London. And I got my first law degree from the National Law School of India University in India and then studied in the us. I have a master's and an SGD from Harvard Law School and now I teach in the uk.
[05:19] Kim Krawiec: We are here to discuss some of your work on what I am going to call, using your terminology, reproductive labor. And I just want to tell you I wish that I had seen this paper. I struggled myself with a paper on repugnant work and I did not include reproductive labor in it. Not because I didn't think it fit, but just because I of space constraints. But I just want to say that your thinking on this is highly compatible with mine and I like anybody who thinks like I do. So, but give us a little bit of background into the set of papers that you've done about reproductive labor in India.
[05:57] Prabha Kotiswaran: Great, thank you. So actually, you know, the papers are part of a larger project on what I call the laws of social reproduction. So for my dissertation, many, many years ago I had looked at producing a materialist feminist theory of sex work. And you know, I'd done fieldwork about 15, 20 years ago. And at that point there were two sort of main, you know, I don't need to rehearse the sex wars, but basically there were the radical feminists who thought of sex work as nothing but violence against women. And then you had pro sex worker rights groups who argued that, you know, it was a form of livelihood and one could have a sex positive attitude towards sex work. And what was missing, I thought was a materialist feminist theorizing of sex work which basically would think more deeply about the political economy of sex work. Think about issues like regulation, exploitation, the intended and unintended consequences of particular regulatory moves. Because at that point the impression seemed to be the radical feminists thought just hyper criminalize, you know, get rid of the customers and everything will be fine. You remove the demand and ergo the sector will disappear. Whereas those who are in favor of sex workers rights basically said you just repeal the anti sex work criminal laws and everything will be great. And actually that is not the case because for various complex reasons, I won't go into it, it doesn't play out that way in reality. So the idea was to really think about law in a more sociological manner, to think about, to do empirical work, to look at layers and layers of different sets of legal rules, not just the criminal law, but different legal rules as well as social practices and market practices, to see exactly how they all interact with each other in this Very densely plural social field. And in the course of doing that work on sex work, that was the time also when there's a very famous case of erotic dancing or called bar dancing, you know, so it wasn't really erotic in the Western sense of the term. You know, women were not stripping or anything. They were, you know, they were wearing Indian clothes and dressing, like, fully clothed and dancing to, you know, Bollywood music. And this was a phenomenon in the state of Maharashtra in India, and the conservatives there banned it. And this led to a furore and litigation in the Bombay High Court. And the decision there spoke about how, you know, you could think of sex work as being dress extra commercial, whereas dance dancing had a very long, hallowed tradition in Indian culture. So therefore, you know, dancers had a right to livelihood, but not sex workers. And this really troubled me as a feminist because I thought, this is a zero sum game that we could do without. There is really no need to exceptionalize certain forms of women's labor. And that led to thinking about commercial surrogacy, because India was just beginning to be the hub of transnational commercial surrogacy at that point. And also to think about more, you know, socially accepted forms of women's work, such as paid domestic work and, of course, unpaid domestic work. So the idea was to think about all these forms of reproductive labor along a continuum, sort of a marriage market continuum, to say, what does the law do here? You know, the law obviously regulates these forms of labor, but from very different starting points. But those starting points actually shape the way that the work is actually performed in these sectors. So that's really how I came into thinking about commercial surrogacy and paid egg donation in a more serious fashion.
[09:28] Kim Krawiec: Great. Thank you so much for that background. Well, we are going to get into a lot more specifics of the papers during the next hour. I'm going to turn it over to Gabe and Buddy now. They're going to run the show from here.
[09:40] Buddy Palmer: Hi, Provost. Thank you so much for being here. We're super excited about today. I think for the first question, I'm going to kick it over to my co host, Gabe.
[09:48] Gabe Andrade: So you've written that the ARTA and the SRA in their current form, alter the risks and rewards of egg donation and surrogacy in ways that disadvantage economically vulnerable groups. Could you expand on how India's socioeconomic structures, especially caste, class, and regional disparities, shape these outcomes?
[10:04] Prabha Kotiswaran: Yeah, thank you. That's. That's a wonderful question, actually. So this is an area of work where that's heavily mediated by India's elite. So even before you meet the egg donors, you have the gatekeepers who are the doctors who run the fertility clinics. So the class divide is inbuilt right from the get go, right? It's the. It's the clinics that essentially harvest women's reproductive labor. And there is a very strong class dynamic between them and the women who perform this kind of work. Now, unlike in other parts of the world, particularly say in the US where you might see, you know, clinics soliciting, you know, university students to come donate eggs, for example, in the Indian context, these women tend to be relatively poor, but again, we shouldn't assume that they're so poor that they're poverty stricken and therefore not up to the biomedical standards that the clinics require. So they can't be people who are completely deprived nutritionally, for instance. So they need to have a certain level of health, but also tend to be poor enough that they have to, you know, perform this kind of reproductive labor. And this is where class, caste and regional variations all intersect and overlap with each other. And certainly at the heyday of transnational commercial surrogacy, you could see entire websites of these clinics that would put out the profiles of the women in terms of their caste, because that mattered a lot, and religion. So these tend to be relatively poor women. And even if you map this onto sort of the space of the city. So for example, we did some of our field work in a major metropolitan city. So if we really tracked where the clinics were located and where the women came from, they tended to come from all the sort of suburbs of the big city into the clinics, which were right at the heart of the city. And when we asked them what kinds of occupations they were engaged in, we found women typically were in the informal economy, you know, domestic work, garment work, you know, various kinds of quite precarious forms of work. A very small minority of them were well educated enough, like they were graduates, as we call them. They had a degree, a university degree, but even then they were working in sort of the BPOs, you know, the business processing outsourcing units. Right. So not. Although we did meet a woman who we met an egg donor who was working for a multinational company. But they're not high up in those corporate setups. And correspondingly, their husbands also worked in these kinds of sectors. You know, they were either car mechanics or they were drivers or construction workers and so on. So they tend to be very much from the lower socioeconomic groups, the poorest socioeconomic groups in the Indian context. And it completely seeps into the way that they are treated by the doctors. So we know there is unequal bargaining power, but it's overlaid with this kind of social distance between the two. And I did a fair bit of fieldwork, so it's not there in these articles. But earlier on when we had transnational commercial surrogacy, their doctors would really think about these women like they would think about their domestic workers. You kind of, they're integral to your household. But there's always a deep sense of suspicion and a very paternalistic attitude towards them. So this is something that has not changed.
[13:18] Gabe Andrade: Thank you for that. So with the next question, Buddy's going to take us a little bit deeper into the policymaking side of this.
[13:24] Buddy Palmer: In my own research into India's Parliament, as early as I could find, it seems that women hold roughly or less than 20% of the seats in both the Lok Sabha and also the Raja Sabha. And so with that major underrepresentation of women lawmakers in India, what do you feel generally is the most effective way to appeal to those older, more powerful men and help them sort of realize their empathy for surrogates and egg donors of their own country? And are those deep seated traditionalist ideas that have especially come about in the last decade or so too much to overcome at the present moment? And if so, do you think that there's any sort of hardcore scientific research that could change minds other than what has already been presented?
[14:08] Prabha Kotiswaran: It's a very complicated question, hard to answer. No, no, no, don't be sorry. I think it's wonderful. It's really good to think about it in these terms. So I guess I just want to say the outset that you're absolutely right. You know, the representation of women in Parliament is rather weak and continues to be the case despite many sort of female friendly schemes that many political parties rule out, you know, in every election. That said, I don't want to present. It's not a very homogeneous crowd, right. So the, the, the women themselves can't necessarily be understood to be empathetic towards women's interests because they come from the elite and often from political families. By, conversely, I think the men are not necessarily all much older or highly privileged. Now these, a lot of them do come from, you know, they're truly representative of the country, so, and at times have taken very progressive positions on various issues. So if you look at, for example, a discussion of the Transgender Rights act in Parliament, you found almost every political party being highly progressive in, you know, recognizing the rights of Trans people that said so also. And in the context of surrogacy and art, I think these two laws, the irony of these two laws is that the country has experimented with every possible regulatory option there has been on surrogacy and art. We went from saying all forms of commercial surrogacy and egg donation are fine to saying that it could only be performed by a close relative, to now saying that it has to be highly altruistic. So we are at the other end of the spectrum right now compared to, if you look at countries around the world, we are really at one end of the spectrum. Very, very restrictive laws here. And interestingly, in, you know, in this trajectory, in this movement of legal positions, the acts themselves have been in front of various parliamentary committees. So this, these are one of those rare laws which went through three parliamentary committees, all with completely different intuitions on what should be the law. So the first parliamentary signing committee actually was completely against this idea of altruistic surrogacy and said that it had to be compensated. If you forced women surrogates to be close relatives in the kind of traditional patriarchal family system we have in India, it would be highly coercive. You know, those women would be coerced into being surrogates for their families. So there was a very deep appreciation of the realities of, you know, what, what women go through in India. So very progressive, I would say, to then going to later parliamentary committees which simply did not think of the issue in that way. And this was all post 2014. So actually it's not necessarily that the conservatives came into power in 2014. So this was all after they came into power. You see a very wide variation in the way that people thought about the issue. So I just want to be a little bit careful about designating certain members of Parliament as progressive and some not. That being said, I think despite the democratic nature of these consultations that the parliamentary committees had, the women's voices were missing. I think this is the problem because as I mentioned earlier, the clinics are the gatekeepers to the women. And unless the clinics decided to bring the women to the parliamentary committees, they were invited, but the women didn't really come. Unless women are able to present their case before the parliamentarians, one can't really get an understanding of what they thought. And I think this has been the major tragedy. And I think it's. It's also not just what, what women who surrogates are egg donors thought about the laws. It's also a deep disconnect between law and medicine. Right so if you look at, you know, despite such incredible oversight of the two laws, we've now ended up with laws that actually don't make any medical sense. And this is why the doctors are very, very unhappy. So easy example would be the law requires you to only take seven sites from the woman's body. Now, doctors immediately said that it would be dangerous to leave the eggs in the woman's body and just take out seven, and the woman could actually die if you didn't aspirate all of the mature follicles or whatever. So, you know, so they would take them all out, but only use seven. So there's a way in which that the lawmakers did not appreciate the science behind it. And that was the problem. Where earlier iterations of the laws came from the medical profession, the later versions, as they went through successive oversight in Parliament, they lost that connection with medical realities. So that's where we are at.
[18:41] Kim Krawiec: Just to point out that in defense of India, this is a worldwide phenomenon, I think the disconnect between law and medicine.
[18:49] Prabha Kotiswaran: Good to know.
[18:51] Buddy Palmer: That's great. Thank you so much for that insight. Next, our colleague Sari has a question about the role of the political climate.
[18:57] Prabha Kotiswaran: Hi, Prabha. Hi. In your article, you note that India's assisted reproductive technology and surrogacy laws have become increasingly restrictive, partly due to concerns about exploitation. To what extent do you think this conservative shift is also influenced by the broader political climate, particularly the rise of Hindu nationalism under Modi's government? Do you see an ideological impulse to preserve so called traditional Hindu values, thus shaping how the state regulates family reproduction and women's bodies? And if so, might this impulse make it more difficult to adopt progressive legislation that recognizes diverse family forms or reproductive choices? Yeah, that's a really, really good question, Sari. And I think it's something that requires a lot of investigation and research, and I only have some tentative ideas. So a lot of scholars do think that the shift in regime makes a big difference to the way that we conceptualize the family and who has the right to form a family. Right. But I think just having looked at various arenas of law reform in India since 2014 and even before that when the Congress was in power, I'm not able to see a distinct shift. So, in other words, the sexual politics of the new conservative regime are very hard to actually decipher. So the rss, which is the parent organization behind the bjp, for example, has welcomed, certainly doesn't want, you know, LGBTQ sort of adult consensual sex between gay couples to be criminalized. Right. At the same time, they would not want necessarily gay marriage. Right. So it's very, it's actually very difficult to say at what point they would. They're rather inconsistent, let's put it this way. They're rather inconsistent in on many of these issues. And so I do think that we just need to complicate the many strands of thinking that go into the passage of these laws. And I'm not entirely persuaded what with strands were more dominant. So on the one hand, you know, we are pronatalists, right? I mean, there's a very deep desire in Indian culture to have children who are genetically linked to you for various religious reasons. So under those circumstances, really art is a boon and surrogacy is a boon. And we should really be allowing as many couples as possible to, you know, have families. We also have major crisis. Well, it's not yet crisis proportions yet, but there has been a decline in the fertility rate in the country, particularly in the southern states where women are more educated. So in fact, now the southern states are, you know, wanting women to have more children. Right. So, so it's, it's, it's kind of very difficult to figure out precisely where the impetus of these laws are coming from. And at one point when the conservative government did mandate, or at least were thinking of mandating that only women who are close relatives become surrogates, people thought that that thinking was coming from the law on organ donation, for example, that, you know, to prevent the hyper commercialization of this should come from within the family. But they very quickly realized that this would be completely unworkable. So then they opened up to say it doesn't have to be a close relative. I mean, and then there is a whole strain of with amongst. In the medical community, there is a sense that the surrogacy clinics became too successful and made a lot of money compare. And that was undermining the business interests of the art sector. And that therefore it was the art sector that wanted this ban on surrogacy so that it didn't affect their economic interests. And of course, you have to remember that there are many public interest lawyers in the Indian context. And in fact, the ban on surrogacy came very dramatically almost overnight in 2015 when these public interest lawyers went to court and said that we should stop the exploitation of Indian women. And the government suddenly said, yes, we will stop. And that's also driven by the international shaming of India as a destination for transnational commercial surrogacy. So we felt like why are Indian women doing this form of labor for, you know, those outside? So all I'm trying to say is that there is very. There are just many, many, many different explanations for why the laws may have landed in the way that they did. But it is true that there is generally a sense that, you know, if you read the laws themselves, there is a sense in many, many provisions that women are vulnerable, that they are deeply liable to be exploited. Therefore, we need to protect them and that we will protect them by not commercializing surrogacy or egg donation. There's even a very strange provision in the laws that say that there's a presumption that a woman was forced to be a surrogate by her family members just to make sure that the specter of exploitation never suffers. So, and this is true of many other laws that the governments have passed. If you look at the laws against sexual violence, they're highly carceral, they're highly paternalistic. The age of consent has also been brought down, and there is now currently a move to raise it up back to 18. You know, and there's a whole discussion around what this does to, you know, violence against women and questions of rape and so on. So it's. It's very hard to know exactly where the conservative government is on many, many different issues. Yeah, so that's. That's sort of my response to your, to your question.
[24:37] Kim Krawiec: Prabhupada. Can I just follow up, because you brought up the sort of shame that India might have felt about being an international destination. And do you know what percentage, even roughly, of surrogacy services were in fact used by foreigners? My sense is that. That it was a lot, but that's also. That may just be because that's what got news coverage. And so I don't know.
[25:01] Prabha Kotiswaran: I totally agree. Yeah. So this is the most incredible thing. So this is one of the issues that gets outsized press coverage. Right? So actually, if you go to the clinics and see how many surrogate babies, you know, how many babies have been born from surrogacy, actually the number is in the thousands. So for a country of India's size, where actually every other issue is. Relates to, you know, millions or hundreds and thousands of people, this is a fairly small issue, just numerically speaking. It doesn't mean it's not important, especially because there are high levels of secondary infertility in the country, you know, which reaches. Affects millions of couples in the country. But, yeah, I think, you know, I would put those numbers even at the height of transnational commercial surrogacy at only a couple of thousand children who are born out of surrogacy. And I think even at that point, although the narrative is of, you know, baby farms and all kinds of exceptionalist narratives around how women were being exploited. I mean, I'm not saying they were not exploitative. I've been to surrogacy hospitals and is deeply problematic that the women couldn't see their children for, you know, six or seven months, that they all routinely had C sections. There were lots of things that were very problematic about it. But I do think that there was something about the role of the clinics who mediated the relationship between the foreign clients and the parents and the surrogates domestically. The relational work, to quote, you know, Viviana Zelizer, was so incredible because they had to bridge this, you know, these two groups of people coming from very, very different universes almost that the reputational risk was very high if something went wrong. So things did go wrong. I mean, there, there were egg donors who, underage egg donors who died, there were surrogates who died. But given the number of surrogacies that took place or the egg donations that took place, they were not actually that high, I think, because I think there was a lot of self regulation in a certain sense and because the risks, the reputational risks were very high for the clinics, the ones working internationally. Great, thank you.
[27:05] Gabe Andrade: So Catherine's going to close out this section by touching on the role of religion.
[27:09] Prabha Kotiswaran: Hi, thank you so much for being here. This is a fascinating conversation. In the US you can't debate reproductive justice without religious values and morals being part of the conversation. So I'm interested in hearing more about how religion in India affects public perception and individual experience of arts. Is this kind of work controversial under any of the most common religions in India? And is there work that has to be done on a societal level to shift these impressions to make some of your proposals viable? Yeah, no, that's a great question. One that's very perplexing actually. It's something that, you know, many of us have thought about for some time and I think it's not. I mean, if you just look at the sort of debates on abortion in India, for example, it's not. The key for discussion is not in terms of religion. We are a country that's also partly because of the fact that we were considered to be overpopulated at one point and the state mandated sterilization, for example, during the emergency years. And there was a very strong policy of having only two children and not Having more children than that. And in fact, we are often told that the government hospitals, that government hospitals resorted to surrogacy, to reverse sterilization. You know, so that is the starting point for us in the Indian context. So, yeah, I mean, I mean, culturally, I think this kind of reproductive labor is affected more by sexual stigma rather than religious mandates. You know, we are a country where, you know, if you look at the abortion laws and the interpretation by the courts, you can have late term abortions, you know, for 24, 26 weeks. I mean, for, for long periods of time. The courts have been fairly liberal about it. It's a country where we've had a very strong son preference. There's been. There was, you know, a lot of sort of female fetus side, and we had to bring in laws to prevent that from happening, this female infanticide, you know, so, so we've, we've been through all that as a society. And it's also a country where, you know, having children who are biologically related to you, preferably sons, is very deeply desired. So I think it is in that context that we have to think about surrogacy and egg denotion. So people would actually be very pronateless that they would, you know, want you to have more children. And given the rate this, this fertility decline, you know, I think in the coming years, you know, it would be something that the governments would want women to have more children. So I think a lot of. And of course there's, you know, people often talk about all the sort of Hindu mythological documents in the Mahabharata that there is evidence for this kind of thing. So. But that's not something people discuss when they, you know, in the, in the public sphere. That's not what we discuss really. So I guess the short answer would be not really. The, the religious aspect of it is not something that's the first prism through which we understand this, this particular issue. If anything, the desire for your own children is very, very strong. And I think, you know, that's where then the issue becomes, you know, if you have a lot of children who could be adopted, who are orphaned, you know, why are we privileging certain forms of medically mediated reproductive technologies that not everyone has access to? Why don't we make sure that we, you know, so there is that kind of liberal, you know, those are the kinds of debates that we have when it comes to art, because it's still the privilege. You know, very few can actually afford to have art and resort to surrogacy.
[30:40] Buddy Palmer: That was great. Thank you for that. So that concludes our first section. Now we're going to shift a little bit from the political and cultural context to your research itself. And for that, I'm going to hand it over to Rachel Duffy.
[30:51] Gabe Andrade: Hi.
[30:52] Prabha Kotiswaran: Thanks so much for being with us today. I was wondering if. So your research for your two papers involved in depth interviews with a lot of egg donors as well as a lot of field work with fertility clinics, were there particular legal or ethical challenges in doing so, given this ban on compensated egg donation? And if so, how did you navigate these challenges? Yeah, that's a great question. And this has been really a huge source of concern for us, not just because we are researchers, but we've also filed an intervention petition application before the Supreme Court, you know, arguing for compensation for egg donors and surrogates. So it's been quite complicated. So I think initially. So, you know, we've been working on this topic for a long time and actually a lot of the field work that's been done in the articles that you read was conducted by my postdoctoral colleague, Dr. Madhushree Jaina, who actually went to a lot of these clinics and did the field work. So. But all along, we have found even when transnational commercial surrogacy was at its height, clinics were very open to researchers. They've been very open to researchers all along to, you know, partly, especially if you're based abroad, because I think this was a way for them to advertise their services. So they've been extraordinarily open. So actually, if you look at a lot of the ethnographies, you'll find quite a few of them being done in the state of Gujarat in Anand, where Dr. Naina Patel is this, you know, celebrity fertility doctor who, you know, always kept the doors open for, for researchers, although she had a very particular narrative about surrogacy. So that has continued even after the ban. And it's actually a bit perplexing why doctors would allow us in because obviously we would be documenting something that's patently illegal. But per se, we didn't have a duty to report this. So in the Indian context, the only time we have mandatory reporting obligations is when there is, you know, some evidence of, you know, child sexual abuse. But for the most part in other instances, we don't have an obligation to report anything that's illegal in this sense to the authorities. So. And the doctors also have a very strange idea about co produced research. Right. So this co production is a very popular buzzword for researchers. But the Doctors simply assumed that they would give us access and then they would become co authors on all our papers. That was a whole other. A set of issues that we had to deal with, which we had to firmly but politely say no. Sometimes I couldn't say no. So I have another piece that I have actually with not just a doctor, but his, many of his family members, you know, that that was published in a journal for obstetricians and gynecologists. But they were open, they were keen to open the doors because they wanted us to document the adverse impact of the new laws. I think this was primarily why they let us in, because they were struggling. The donor cycles had fallen dramatically. They were at, when we did the research, they were at a point when they were still figuring out whether the government would enforce the new draconian laws. They were testing the waters to see what would happen. And then of course there were some clinics who were completely hands on. They just didn't want to, they just didn't do this work. They stopped doing, certainly not surrogacy, but even, you know, donor cycles would. They just refused to do it because they want, didn't want to get into trouble. And then there were clinics that were happily, you know, willing to do it. And that was one of the clinics who, who gave us access. Now when we started talking to the women themselves, actually we discovered that they didn't know that compensation for egg donation was illegal. You know, once they found out from us, then of course we wanted to ask them what they, they thought about the laws. And we've presented that in a way that actually respects their resistance towards these laws rather than couch it in terms of something illegal being done. But we could tell very clearly the different points at which, you know, the way in which the transactions had shifted so that ever the law enforcement authorities were to find out about any of these practices, you couldn't trace the chain back necessarily to the clinics, but in fact to the women themselves who are getting the cash transactions and a whole bunch of agents and intermediaries who used to be maybe surrogates or egg donors who could then, then be in trouble. The other sort of legal ethical issue that came up was when the. So there was very quickly after the laws were passed, there's a young fertility doctor who filed a public interest litigation in the Supreme Court. And we decided to file an intervention application. We tried very hard to find surrogates and egg donors who would contest the provisions of the law which ban compensation on the basis that this would amount to forced labor. But actually, historically, because the clinics have given us access to women, there have never actually been, they've never been mobilized. There's no association necessarily independent of the clinics. So although the clinics are very open to our research, they were unwilling to introduce us to women who could be petitioners in the case. So if they had filed a writ petition on their own, it would have been a much stronger case in court. But because they were not forthcoming, we had to do it. And at the point that we did it, our research was not published yet. But there was always a question of, we had this research, we knew that the law had been violated. So the question was, are we going to the court with clean hands? And the litigation has taken so long that the article has now been published. So there have been various conundrums along the way, but the case is still ongoing. And we really hope that the court will side us on this and that they will uphold some reasonable form of compensation.
[36:40] Gabe Andrade: So thank you, Rachel, for that wonderful question and thank you, Prabha, for that response. So we're going to kick it over now to Maeston, who has a question about how these donors consider their futures. Hi there. So in interviewing these women, did they have a plan for their income when they turned 35 or as you discussed, like, maybe younger than that and they're no longer really eligible to participate in the system? Is there evidence that these women are being compensated enough that this really makes like a long term financial impact for them, or are these payments like just enough to kind of stem these acute cash flow struggles and then when they get cut off, there's a lot of things that could go wrong?
[37:17] Prabha Kotiswaran: Yeah, thanks, Misal. I think it's the latter. I think you're exactly right, that this is, as the economists call it, just, you know, smoothens the consumption patterns, nothing more. And of course, this has become particularly bad because of COVID And there's a lot of indebtedness because of COVID which is what, you know, because we were interviewing women after Covid, you know, that was the major reason without jobs, you know, women were resorting to egg donation. But, you know, so the amounts, they get paid about 30,000, 40,000. That doesn't actually take you very far. In a city like a big city where we interviewed them even, even when women were surrogates, you know, and they used to get paid 300, 400,000 rupees from like 2000 to 2015. Their thinking always was that those, the first time you did surrogacy, it would be useful for building A house for the family. And the second time it would be to ensure the children's education. But even there we didn't always find that those big payments were being used to, you know, have them like build a house or to actually take care of their children's education. It never met that need really. So you know, an egg donation is paid a lot less. So you're right, it's, it's. And they do. But I don't think, although they think of it as a livelihood and have done it a couple of times, I don't think they're thinking because they were not aware about the law. So they're not thinking, oh we can do this till 35. So that's. That long term vision is really not part of their thinking process.
[38:35] Gabe Andrade: So Buddy's going to ask our question for our colleague Bradley, as he was unfortunately not able to make it. And this question's about how donors frame their own experiences.
[38:45] Buddy Palmer: So Bradley mentions that your paper highlights two particularly striking narratives used by egg donors. One is the reframing of their reproductive material as biological waste that can be productively repurposed. He quoted the eggs are wasted anyway, any every month, so why not use them to help someone and earn something. And two, the way donors are forced to navigate stigma because egg donation is socially conflated with surrogacy, leaving them vulnerable to moral judgment from neighbors, non medical communities. So his actual question is given these narrative frames, one that emphasizes practical, almost ecological logic of converting that waste into livelihood and the other which exposes the social misunderstanding that fuels the stigma. Do you think that increasing public awareness of donors own interpretive frameworks could shift policy debates toward recognizing egg donation as some legitimate labor deserving compensation? Or are these entrenched moralistic narratives about reproduction likely to overpower those lived experience based narratives?
[39:41] Prabha Kotiswaran: Yeah, that's a great question. So actually I think for a very long time the two narratives have been intertwined. So one narrative is that, you know, women are giving families the gift of a family, like, you know, a gift of a child. Right. So this was what was driving even at the time of compensated surrogacy. The clinics always advertise this as, you know, women are giving, you know, a couple the gift of a child. So this is coming from the, the altruistic inclinations of the women and that was often used to discipline women as workers. So I think Amrita Pandey has written about this that, you know, if you were, the clinics want you to be a good mother, but they don't want you to Be a good worker, because if you. If you kind of claim higher compensation, then you're a. You're a good worker, but a bad mother because you're not being altruistic enough. So this tension is. Has been there for a long time. And as alongside the stigma, so that's also used as a disciplining function to say that if you're truly a good mother, you wouldn't be making such demands. You wouldn't be so commercially inclined. So I think that narrative continues to be there. You know, women also think they're helping somebody out. They're helping out a woman who can't have a child on her own. So that narrative remains, you know, in the public view, but because it's been banned, maybe it's something that clinics advertise, but it's not there in the public discourse. And unfortunately, because women had no voice in the legislative bodies. You know, although there are many feminist ethnographies of surrogacy and egg donation, those don't necessarily filter through the legislative process. But we are hoping that, at least in court, we have a second opportunity to present some of these views of women themselves. And hopefully the court will also be interested in hearing their voices. But because so much of this is banned, it's also the reporting from the press is often in the sensationalist mode that, look what we found. We found a clinic where this is happening illegally. And then women don't want to talk. You know, so we had this problem, too. So when we were trying to collect petitions for the litigation, you know, it was very difficult, actually, because their husbands would pick up the phone, they would not let us talk to them, and they didn't want to identify themselves. So ultimately, because of the stigma, we couldn't bring their voices to court or have them file a petition at the end.
[41:49] Gabe Andrade: And so now that we've discussed your fieldwork, let's turn to how the law structured these practices. And with that, we're going to start with Rachel Greenbaum.
[41:56] Prabha Kotiswaran: Hi. Thank you for being here with us today. So the absence of an ARTA mandate on counseling for egg donors seems to be a large power imbalance, especially considering that the clinics are required to provide it for the intending couples. Do you think that this is an intentional hole in regulation? If not, and perhaps it's just a mere oversight, why do you think their ability to receive counseling was overlooked if the point of tighter regulations is to create a safer environment for donations? Yeah. You know, as I said, although these laws were scrutinized by several parliamentary Committees and had been in the making, I don't know, like, you know, 20 years. Unfortunately, by the time the law was passed, a lot of these nuances were overlooked. You know, so to begin with, the default sensibilities to ignore the voices of women, right. The. The. Is to prioritize the rights of the intending parents, the couples, rather than the women themselves, Given that they're. They come from marginalized communities, they have no way of representing their interests. So in a certain sense, they are just forgotten. They've always been forgotten in the lawmaking process. And I think I would put it down to sheer indifference towards the rights of the surrogates and egg donors and the fact that there was nobody to really represent their interests at any point in time. Although the statute itself doesn't have the requirement for counseling in the delegated legislation, you have forms that do talk about counseling of the egg donors and the surrogates. And because there is a certificate that is required as to the eligibility of the surrogates, there is some for the surrogates, certainly you need counseling, but for the egg donors, it's hidden in the. In the delegated legislation. So because of these sort of mismatches between the statute and the delegated legislation, courts are having to step in. There are many other such inconsistencies that the courts are now fixing. But the problem is it's been three years since the laws came into force, and they're still slowly fixing, you know, several provisions of the law where there's a discrepancy between the delegated legislation and the statute.
[43:53] Buddy Palmer: Thanks, Rachel. That was a great question. Now I'm going to hand it over to Kendall. We'll follow up with a question about the differences in the ARTA and the SRA criteria.
[44:01] Prabha Kotiswaran: Hi, Prabha, thank you for joining us today. I noticed discrepancies between several criteria in the ARTA versus SRA guidelines. For example, the age ranges for intending couples seeking egg donation, which is around.
[44:13] Kim Krawiec: 21 to 55 years old for men and 21 to 50 for women, versus.
[44:17] Prabha Kotiswaran: Intending couples seeking surrogacy, which is around 26 to 55 for men and 23.
[44:22] Kim Krawiec: To 50 for women.
[44:23] Prabha Kotiswaran: And the ARTA only allows medically infertile couples to receive an egg, whereas a.
[44:27] Kim Krawiec: Couple or divorced or widowed single woman can, seeking a surrogate need not be infertile, but can't have any surviving biological or adopted children.
[44:36] Prabha Kotiswaran: I'm curious what factors you think account for some of these differences. Thank you. You've done a close read of the laws. I wish the Lawmakers had done that too, but unfortunately not. So. So I think the, the variation between the ART and the surrogacy acts in terms of the age restrictions is because, anyway, this is how the government explains it is that surrogacy is considered to be a subset of art. So it's the last option for couples, you know, so they should be trying ART first. And surrogacy, given its history in India, should be the last option for couples to resort to. So the thinking there is that you try art and by the time you're ready for surrogacy, you know, you'd be a bit older. So that is why you see the G between the art and the surrogacy age ranges. I think in terms of the medical indication, actually, if you look at the Surrogacy act, there is a requirement for. There is a medical indication that's required. So there is a certificate of eligibility and a district medical board has to certify that you have a medical need. So actually the law has various. And I can share the. So we actually did a couple of primers on the laws because they're so technical and so complicated. But, you know, if you're missing a uterus or if you have some kind of chronic condition or you've had repeated miscarriages, you need to have those medical indications before you go for surrogacy. But you're right in the sense that, you know, under the ART Act, a single woman can resort to art. And I think the thinking here is to align it with the adoption laws. So in the Indian context, a single man cannot adopt a child, you know, a girl child, and there's some restrictions around that, but a woman can. So I think it's to make it somewhat equal. But when it comes to surrogacy, I think because it's considered to be something that should be resorted to in rare circumstances, I think it's. You only allow ever married women, or rather, you know, divorced or widowed women who might otherwise seem to be. Seem to not have a family, right? They're married, but they don't have a family. And I just want to remind you the context in India is that 92% of, of women are married. Our divorce rate is about 2%. And so this compulsory heterosexuality and, you know, the average number of children is two, although that's reducing now in many states. So the idea seems to be that your life would be incomplete if you didn't have children. So it's a way of. Because the marital bargain didn't materialize in the form of children, you know, you are allowed to resort to surrogacy. So those are some peculiar kind of reasons why you see the discrepancy between the two laws. But, of course, this has been challenged in the pil, where cohabiting couples, you know, single men and women, the LGBTQ community, who otherwise have. Under the trans rights, you know, they. They have a lot of beneficial provisions, but not the right to form a family under these laws. So all of this is. Will come up. Will have to be scrutinized from a constitutional lens, and we are hopeful that some of these provisions will be struck on.
[47:31] Gabe Andrade: So now we're going to shift it over to Denise, who has a question about one of the SRA's more puzzling provisions.
[47:38] Prabha Kotiswaran: Hi, Prabha. Thank you so much for being here. I was curious. You noted that the Surrogacy Regulation Act 2021, prohibits couples who already have a living child, biological or adopted, from commissioning a surrogate. And I was wondering, do you have an idea of why that is? Was it a concern about overpopulation or maybe a worry about protecting a limited resource, which would be these women who are willing to be surrogates for those who might need it most, which some people might consider to be people who don't already have children? Because I'm struggling to make sense of that provision. It's not the first two reasons. In terms of the limited number of surrogates, we actually do have a lot of women who would want to be surrogates. I think it's a rebound from the ban on international surrogacy. Once we decided in 2016 that, you know, we didn't want anyone to have access to just anyone to have access to, you know, commercial surrogacy. And we wanted to make this an exception, Right? So we were very close to saying there should be no surrogacy at all. And then we said, we will make an exception and allow for altruistic surrogacy, but for very, very, very few people. So very restricted basis, you know, and only certain couples who could do this. So, for example, at that time, if I remember right, I think there were some Bollywood stars who already had children. I think it was Shah Rukh Khan, who already had two children through his wife, who wanted a third child and used a surrogate. And the External Affairs Minister was furious when she introduced the bill in Parliament, and she said, we won't allow what's called social surrogacy for people. This is not just, you know, if you're a wealthy person, you can just simply commission surrogacy and have children. This is truly only for couples who have a real need for it. So it was just outrage at how far we had gone, I think, with allowing not just transnational commercial surrogacy, but also domestic commercial surrogacy for a lot of people who had already formed families. So, yeah, I mean, this. These are the. This is the reason why you. You find that provision in the law.
[49:46] Buddy Palmer: That's great. Thank you all for that one. Cindy's going to wrap up this section with a question about potential court challenges.
[49:52] Prabha Kotiswaran: Hi, Prabhupada, thank you so much for joining us today. You briefly mentioned this when answering Kendall's question, but I wanted to follow up because also in your article, you mentioned that the SRA limits access to surrogacy to married heterosexual couples with a medical indication, necessitating gestational surrogacy, while explicitly excluding single men, never married women, cohabitating heterosexual couples, and also LGBTQIA persons. So if the courts were to strike down the SRA because of those discriminatory exclusions, would they strike down the entire statute, including the requirements for altruistic donation, or would the court only strike down the portion of the statute and retain the ban on pavement? That's a great question. Yeah, Yeah. I think because we have sort of a doctrine of severability, they would only strike down the specific provisions, and they are generally very loathe to question, you know, legislative intentions. Right. So there's all these sort of principles of statutory interpretation kick in, and there's a presumption of constitutionality. There's a presumption that Parliament knew what they were doing when they passed these laws. So actually, over the past two years, I've been listening, you know, ever since we filed our intervention application, we've had a bench of two judges. The main judge is a senior judge called Justice Nagaratna, who's been listening to the petitions. And it's very clear that very hesitant to change, to strike down what's in the laws. That said. So we haven't actually come to hearing some of these huge challenges. We are still actually working our way through sort of transitional provision. So very recently, there was a challenge from couples who, who initiated the surrogacy process prior to the coming into force of the two laws. So when they initiated the process, they were within the age range for the laws, but they had finished the gamete donation, they had finished the fertilization, and they had the frozen embryos. But when Covid Hit they couldn't go ahead with the surrogacy. And by the time the laws came into force, when they went for the certificates to the the local bodies, they were told that they passed the age limits and they couldn't go ahead with the surrogacy. So they went to court and challenged this. And the court actually, in a very beautiful decision recently, held that at the point when they initiated the surrogacy process, they had a fundamental right to surrogacy under Article 21, which is the right to life provision of the Constitution. And therefore, there was a vested right in their favor. And that therefore, once the laws were passed, they couldn't be deprived of that right. But then again, they limited it to only those couples who were at the literally at the threshold of going to a surrogate. So those kinds of couples are allowed to go ahead with the surrogacy. Similarly, there was another provision which, as I said earlier, was out of sync with the medical logic. So it required that there was a notification that said both parents have to donate their biological material, their gametes, and sometimes one parent couldn't. So the court struck it down in that very limited case and said, no, where a woman doesn't have the ability to produce gametes, she should be allowed gamete donation for surrogacy. So we are still, unfortunately, working our way through these sort of transitional provisions and ironing out some of the discrepancies. So the big questions are yet to be taken up, and we hope they'll be taken up soon, but it's unlikely that they'll strike down the entire law. You know, it'll just be particular sections of it.
[53:27] Kim Krawiec: So, Prabha, it sounds like, based on your discussion then, that there are lots of challenges to the law on a variety of different fronts, and some of them are being successful. But it sounds like the court is limiting its opinion as much as possible. Are there any parts of the law that you are sort of optimistic about in the sense that the challenges will succeed, or are you not in the prediction business?
[53:58] Prabha Kotiswaran: Yeah, you know, I. Actually, that's a great question, because a judge is a very difficult person to figure out. I suppose all judges are, but she gives us hope on some days, then the other day she makes us cry. So, I mean, there are times when, you know, for example, a lot of single women have filed constitutional challenges right, on the surrogacy question, and there are times when she has said, well, if you're 52, you know, what took you so long to decide to be a mother why didn't you do this earlier? For example? That's on one day. On another day, she says she has told us, actually, in our oral arguments. Well, you know, you're absolutely right. You know, having a baby, birthing a baby is all labor, and she should be paid. The woman should be paid something for her labor. So we are cautiously optimistic, as people like to say. But obviously, on the LGBTQ provisions, you know, there was a lot of hope because prior to this, we had a constitutional bench looking at marriage equality, and that, you know, that case didn't go the way we wanted it to go. So I think that. So till marriage equality is made possible, it'll be harder for lgbtq, for the community to actually insist on the right to surrogacy. So, yeah, I mean, there are developments in other areas of the law, but I think certainly we can align it with existing law around adoption, around the Transgender Rights act, to make it compliant. And certainly, we hope, you know, Article 23, which is a prohibition on forced labor, we are very hopeful that she will. And given this most recent judgment, which talks about the right to life and the fact that it's a law that must be interpreted beneficially rather than in this very draconian fashion, gives us some hope.
[55:34] Kim Krawiec: Great. Thank you.
[55:36] Gabe Andrade: Thank you so much. And last but not least, to wrap it up, Reid has a question about looking back over the evolution of India's surrogacy and the art laws.
[55:45] Buddy Palmer: Hi, Prabhu, thanks for coming out today. Giving you a chance to hopefully tie together some of the things you've been talking about. Do you think that at any point, India had the right legal approach to art and surrogacy?
[55:58] Gabe Andrade: Would you support a return to the.
[56:00] Prabha Kotiswaran: Laissez faire days of the mid-2000s, or.
[56:03] Buddy Palmer: Do you see your work as calling for an entirely new way to address these technologies?
[56:08] Prabha Kotiswaran: That's a wonderful question. Thank you so much, Reed. So, yeah, no, I don't think we've ever gotten it right so far, but I do think that the parliamentary committee, you know, in the. On the way to these laws, had some good ideas on compensated surrogacy. So. And also some provisions which were discussed early on in the 2000s around the need to recognize the rights of surrogates to form unions, for example, and something that came from women themselves. So actually, the ethnographers did some very fascinating work where they talked to women, and sometimes the women said, you know, we don't want the clinics to be intermediaries. We would rather run a surrogacy cooperative. For example, so there are ways in which they were visualizing the political economy of the sector and their own labor. So I think at the very least they should have some voice. There should be some way in which there is an association, there could be some compulsory registration into a union and definitely, you know, contracts that are protect the rights of the women rather than not. So I think hopefully once the constitutional challenge is taken up then, because as of now, you know, researchers can't talk to women who are getting compensation. In a certain sense it's difficult, or journalists can't talk to them and you know, and, and they can't come to court either because, you know, one of the big problems was that clinics said we can't have the women go to court because although the registry requires that you can only donate eggs once in your lifetime, because these laws are not being implemented, women might actually be going from clinic to clinic because it's the agents who take them to different clinics. So even the clinics don't know at any one point whether the women have violated the law by going to other clinics. So they can't actually come to court because of these very stringent prohibitions. But hopefully once some of these prohibitions are read down, we are hoping that there could be a law that's more focused on the rights of the women because they are the ones whose rights have been the most ignored in this statutory framework. And I think we can draw on other models around the world. So the uk, England and Wales also have been thinking about reforming the surrogacy laws and has some very good ideas on compensated surrogacy, which we've taken before the Supreme Court to say, you know, some kind of reasonable compensation that is agreed upon by the state. The state can set the levels and, you know, give more voice to the women and have contracts that reflect their rights. I think it's possible to, to get there.
[58:34] Kim Krawiec: Thank you so much. This has been a fascinating conversation and I think is going to be a very successful episode. Are there probably. Are there any last minute thoughts you want to leave the audience with?
[58:47] Prabha Kotiswaran: No, not, not really. I think I'm really glad that you engaged with these questions so deeply because it is highly frustrating to be working on, you know, very, very technical laws. Obviously all laws are technical, but these particularly so because often you have to talk to doctors and there are just so many nuances to every provision in the laws that, you know, all of you picked up on. And so I'm really, I'm really grateful for that. And I will leave you with a few resources on the primers. If you wanted to look at them, I can share a link to them. And do stay tuned. We will update you on what happens in court.
[59:22] Kim Krawiec: Yeah.
[59:23] Prabha Kotiswaran: Hopefully soon.
[59:24] Kim Krawiec: Wonderful. Thank you so much. And yes, we would definitely like the primers. That would be super helpful. Gabe and buddy, any last minute thoughts from you guys?
[59:32] Gabe Andrade: Just wanted to thank you for all of, you know, answering all of our questions and just being with us here today. It's been a really amazing conversation.
[59:38] Buddy Palmer: This was I know I'm not just speaking for Gabe and I, but for the rest of our classmates, this was such a treat. So thank you for taking the time. I really appreciate it.
[59:45] Prabha Kotiswaran: Thank you. Thank you all. Such great questions. Thanks.
[59:49] Kim Krawiec: Thanks. Bye.
[59:58] Prabha Kotiswaran: Sa.
