International Surrogacy as Disruptive Industry in Southeast Asia

INTERNATIONAL SURROGACY AS DISRUPTIVE INDUSTRY IN SOUTHEAST ASIA

MEDICAL ANTHROPOLOGY: HEALTH, INEQUALITY, AND SOCIAL JUSTICE

Series editor: Lenore Manderson

Books in the Medical Anthropology series are concerned with social patterns of and social responses to ill health, disease, and suffering, and how social exclusion and social justice shape health and healing outcomes. The series is designed to reflect the diversity of contemporary medical anthropological research and writing, and will offer scholars a forum to publish work that showcases the theoretical sophistication, methodological soundness, and ethnographic richness of the field.

Books in the series may include studies on the organization and movement of peoples, technologies, and treatments, how inequalities pattern access to these, and how individuals, communities, and states respond to various assaults on well-being, including from illness, disaster, and violence.

Jessica Hardin, Faith and the Pursuit of Health: Cardiometabolic Disorders in Samoa

Carina Heckert, Fault Lines of Care: Gender, HIV, and Global Health in Bolivia

Alison Heller, Fistula Politics: Birthing Injuries and the Quest for Continence in Niger

Joel Christian Reed, Landscapes of Activism: Civil Society and HIV and AIDS Care in Northern Mozambique

Beatriz M. Reyes-Foster, Psychiatric Encounters: Madness and Modernity in Yucatan, Mexico

Sonja van Wichelen, Legitimating Life: Adoption in the Age of Globalization and Biotechnology

Lesley Jo Weaver, Sugar and Tension: Diabetes and Gender in Modern India

Andrea Whittaker, International Surrogacy as Disruptive Industry in Southeast Asia

INTERNATIONAL SURROGACY AS DISRUPTIVE INDUSTRY IN SOUTHEAST ASIA

ANDREA WHITTAKER

RUTGERS UNIVERSITY PRESS

New Brunswick, Camden, and Newark, New Jersey, and London

Library of Congress Cataloging-in-Publication Data

Names: Whittaker, Andrea (Andrea M.), 1967– author.

Title: International surrogacy as disruptive industry in Southeast Asia / Andrea Whittaker.

Description: New Brunswick, New Jersey : Rutgers University Press, [2018] | Series: Medical anthropology | Includes bibliographical references and index.

Identifiers: LCCN 2018011717 | ISBN 9780813596846 (cloth) | ISBN 9780813596839 (pbk.)

Subjects: LCSH: Surrogate motherhood—Social aspects—Thailand. | Surrogate motherhood—Moral and ethical aspects—Thailand. | Surrogate motherhood— Cross-cultural studies.

Classification: LCC HQ759.5 .W485 2018 | DDC 306.874/309593—dc23

LC record available at https://lccn.loc.gov/2018011717

A British Cataloging-in-Publication record for this book is available from the British Library.

Copyright © 2019 by Andrea Whittaker

All rights reserved

No part of this book may be reproduced or utilized in any form or by any means, electronic or mechanical, or by any information storage and retrieval system, without written permission from the publisher. Please contact Rutgers University Press, 106 Somerset Street, New Brunswick, NJ 08901. The only exception to this prohibition is fair use as defined by U.S. copyright law.

The paper used in this publication meets the requirements of the American National Standard for Information Sciences—Permanence of Paper for Printed Library Materials, ANSI Z39.48-1992.

www.rutgersuniversitypress.org

Manufactured in the United States of America

For my daughters Claire and Rachel and those who wish to create families

CONTENTS

Foreword by Lenore Manderson

Preface

List of Abbreviations

Notes on Language and Transliteration

Introduction

1 The Growth of Disruptive Commercial Surrogacy in Asia

2 Merit and Money: The Moral Economy of Surrogacy

3 The Best of Intentions

4 Facilitation

5 Digital Umbilical Cords

6 Rotten Trade

7 Baby Gammy

8 New Destinations, New Markets

Conclusion: The Future of International Surrogacy

Acknowledgments

Notes

Bibliography

Index

FOREWORD

LENORE MANDERSON

Medical Anthropology: Health, Inequality, and Social Justice is a new series from Rutgers University Press, designed to capture the diversity of contemporary medical anthropological research and writing. The beauty of ethnography is its capacity, through storytelling, to make sense of suffering as a social experience, and to set it in context. Central to our focus in this series on health and illness, inequality and social justice, therefore, is the way in which social structures and ideologies shape the likelihood and impact of infections, injuries, bodily ruptures and disease, chronic conditions and disability, treatment and care, social repair and death.

The brief for this series is broad. The books are concerned with health and illness, healing practices, and access to care, but the authors illustrate too the importance of context—of geography, physical condition, service availability, and income. Health and illness are social facts; the circumstances of the maintenance and loss of health are always and everywhere shaped by structural, global, and local relations. Society, culture, economy, and political organization as much as ecology shape the variance of illness, disability, and disadvantage. But as medical anthropologists have long illustrated, the relationships of social context and health status are complex. In addressing these questions, the authors in this series showcase the theoretical sophistication, methodological rigor, and empirical richness of the field, while expanding a map of illness and social and institutional life to illustrate the effects of material conditions and social meanings in troubling and surprising ways.

The books in the series move across social circumstances, health conditions, and geography, and their intersections and interactions, to demonstrate how individuals, communities, and states manage assaults on well-being. The books reflect medical anthropology as a constantly changing field of scholarship, drawing on research diversely in residential and virtual communities, clinics, and laboratories, in emergency care and public health settings, with service providers, individual healers, and households, with social bodies, human bodies, and biologies. While medical anthropology once concentrated on systems of healing, particular diseases, and embodied experiences, today the field has expanded to include environmental disaster and war, science, technology, faith, gender-based violence, and forced migration. Curiosity about the body and its vicissitudes remains a pivot for our work, but our concerns are with the location of bodies in social life, and with how social structures, temporal imperatives, and shifting exigencies shape life courses. This dynamic field reflects an ethics of the discipline to address these pressing issues of our time.

Globalization contributes to and adds to the complexity of influences on health outcomes; it (re)produces social and economic relations that institutionalize poverty, unequal conditions of everyday life and work, and environments in which diseases increase or subside. Globalization patterns the movement and relations of peoples, technologies and knowledge, programs and treatments; it shapes differences in health experience and outcomes across space; it informs and amplifies inequalities at the individual and country levels. Global forces and local inequalities compound and constantly load on individuals to affect their physical and mental health, and their households and communities. At the same time, as the subtitle of this series indicates, we are concerned with questions of social exclusion and inclusion, social justice and repair, again both globally and locally. The books challenge readers to reflect not only on sickness and suffering, deficit and despair, but also on resistance and restitution—on how people respond to injustices and evade the fault lines that might seem to predetermine life outcomes. While not all of the books take this direction, the aim is to widen the frame within which we conceptualize embodiment and suffering.

In International Surrogacy as Disruptive Industry in Southeast Asia, Andrea Whittaker brings together the concerns of embodiment and suffering as illustrated through the outsourcing of reproduction. Assisted reproductive technology, in vitro fertilization, and gamete donation have expanded rapidly during the past few decades, with increasing propensity for reproductive medical procedures to take place across borders. The increasing affordability of international transport, the transmission of bio-information through the internet, and the movement of expertise globally allow people to pursue family making, increasingly, when and where it suits them. Thus people side-step national laws, biomedical constraints, and prohibitive charges and pursue secrecy and efficiency as they manipulate their desire for biologically related families. But even the most sensitively timed assisted reproductive technology (ART) procedures, the best doctors, and the most sophisticated clinics do not cover all eventualities. For a growing number of individuals and couples, for whom biological parenting remains the grail, the answer is surrogacy.

Surrogate pregnancy is not new, but it was once largely a private arrangement, framed by affective (often kinship) ties between gestational and intending social mothers. But the desire to establish or continue a biological family, social convenience, and its way around medical difficulties in conception and pregnancy to term have led surrogacy to become an increasingly common reproductive option. The institutions, procedures, and drugs now available in support of advanced reproductive technology have increased the success of the implantation of an embryo (or two or more) into the womb of another woman as surrogate, sometimes with the ova and sperm of the intended parents, sometimes with others’ gametes. As with other reproductive pilgrimages, for legal, economic, and technical reasons, surrogacy is for many people an offshore venture. In Thailand, where Whittaker focuses her story, ART is a well-established industry, taking advantage of the internet, social media, and the infrastructure of tourism for leisure as well as medical travel.

At the same time, employment as a surrogate mother and opportunities to donate ova provide poor women with new opportunities to generate an income. In Thailand, as in India and other settings marked by economic and social inequality, the organization of surrogacy into a commercially lucrative industry took advantage of this. Women’s reproductive capacities become exploitable as a resource as a form of labor. Whittaker offers us a rich account of the assemblages and markets of affect—the overwhelming desire for a biological child or children—with technology, economic inequality, and commercial greed. It is a story of brokers, travel agents, clinics, lawyers, spotters, accommodation providers, hospital and embassy staff, intended parents, surrogates, and ova providers. Parental hopes find willingness in the desperation of poor women, and doctors, nurses, brokers, and others make money from this convergence.

This is a continuing story. Whittaker describes how the exposure of some of the most extreme cruelties of surrogacy has forced legal changes, including in Thailand. But when surrogacy is pushed out of some countries, its commerce crosses borders, reappearing in settings where government intervention is ineffective and where reproductive women are among the poorest. These assemblages of technology, kinship, and capital are deeply disturbing. As Whittaker illustrates, others’ dreams are pursued and often realized through the exploitation of inequality and the perpetration of social injustice.

PREFACE

This is a story of unease. For anthropologists, it is always an awkward task to document and question the ways of life of other people. On a topic such as surrogacy, the tensions become acute: it is a subject that inevitably divides people who take various ethical positions on the issue. Listening to the personal stories of people whose desire to form a family has led them to choose overseas surrogacy, who can say it is wrong that they grasp an opportunity to pursue the joys of family life? There is a danger that discussions of overseas surrogacy descend into validations of only one type of family, or denials of the agency of the surrogates involved. As I hope will be evident in this book, one cannot deny the legitimacy of people’s claims to form a family, the real suffering they undergo, and the enormous efforts and difficult decisions they make to seek families through surrogacy, nor their own ethical concerns on the issue.

But as a social scientist, it is my job also to think beyond the individual scale, and consider more broadly the development of an industry at a regional scale. The use of the word industry in this context is offensive to some, but as I will argue later, I think it is appropriate as a means of describing the various integrated businesses and service industries that rapidly grew to provide surrogacy across Asia. I pursue the analysis of the overseas surrogacy industry on a number of scales as a means to explore the complexities of this issue. I do not wish to criticize the individual parents or surrogates who have most generously opened up and provided their most intimate and precious details of their personal decisions around surrogacy. But it is valid to raise concerns about how the industry that has evolved is organized and operates.

My personal experience in undertaking this research over many years has been marked by constant challenges to my own understandings, as I have come face-to-face with the real people behind the stereotypes of surrogates, intended parents, facilitators, and doctors. The desire to undertake this research first emerged following my earlier research on IVF in Thailand in 2009, as I became aware of the growing interest in the country as a destination for foreigners seeking IVF procedures including surrogacy. It was further piqued when, in 2010, a work colleague announced that he and his partner were pursuing surrogacy in India at a time when legislative changes made travel for overseas surrogacy by Queensland residents illegal. He had read my early writings on surrogacy and wrote an email to me shortly after the birth of his twin sons. Offended at my previous writing on surrogacy in Thailand, which called for greater regulations, he accused me of moralizing on what had been a carefully planned decision in his case, as he and his partner had tried to balance their desires with their own ethical concerns. His criticisms included accusations of colonialist stereotyping of all Indian surrogates as poor women without agency, and denying them a legitimate and lucrative opportunity to earn a significant amount of money that could be life changing. In his email, he accused me of setting myself up as a feminist moralizing judge over personal reproductive decisions. Of course, his email upset me; it reminded me that academic writings are read by and have real implications for their readers and subjects. In my response, I echoed what I am writing here—that as an anthropologist my role is to describe and analyze at a social scale. My work is intended not to vilify individual actions but rather to describe an industry and its social implications and perhaps to suggest how it might be improved for the protection of all those involved. It is my hope that it does not cause distress for the children, families, parents, or surrogates involved, but instead affirms the complexity of this issue and the many rights and responsibilities that must be balanced.

Having said this, however, I do not resile from criticizing the real harms associated with surrogacy that have been documented in Asia. In this book, I discuss cases of criminal activity, trafficking, and child abandonment that represent rare but real instances of damage to people and, more broadly, to the reputation of all who seek to form families through surrogacy. Of course abuses occur in every industry, yet to deny their existence does little to advance the development of equitable, safe, and ethical surrogacy. And it is important to understand how various incidents have been pivotal in the regulation of and political reactions to the industry in the region. They are included in this book not as salacious details but as marking turning points in public discourse and political action on the issue.

Yet I also document the very real joys, wonderments, and delights experienced by families formed through surrogacy. It is difficult to convey the care and love evident among the families I have been privileged to meet at surrogacy conferences, in clinics, and through interviews. These families come in all shapes and sizes, and it should never be forgotten that their children were so very wanted, to the extent that their parents went through enormous efforts to conceive them. The families themselves should not be defined by the technique used for the conception and birth of their children; the reality is that the experience of surrogacy is but a starting point for a lifetime of care and love. Nevertheless, families formed through surrogacy face a set of unique challenges, such as the personal decisions they must make around how to tell their children about their birth, whether and how to incorporate the role of the surrogate as fictive kin, and a number of legal complications regarding the citizenship of their children and legal recognition of their parentage. The degree of complexity depends upon the nationality and citizenship of the parents, the nationality of their surrogate, and the country or even state within which they undertake surrogacy. This book addresses some of the consequences of the legal labyrinth for families involved in the study.

Finally, in this book I primarily explore the international surrogacy industry as it emerged in Thailand and Southeast Asia. I describe a particular time and place, and therefore I do not intend to describe the forms of the industry in other parts of the world. Even so, the insights I provide can be used to compare how the industry has developed elsewhere. As other anthropologists have shown, the introduction of IVF technologies has taken different social forms in various cultural and social settings, and so too with surrogacy. Undertaking surrogacy in Laos, Ukraine, or the United States is a different phenomenon in each case, within specific social, cultural, and economic contexts.

All mistakes are mine, and I hope this book reflects my curiosity, empathy, and respect for my informants.

ABBREVIATIONS

NOTES ON LANGUAGE AND TRANSLITERATION

Throughout this text and for clarity, Thai script is used for Thai words. Transcriptions of Thai words used throughout this text follow the transcription system below. Under this system, tones and long vowels are not indicated. Exceptions to this system include place names, personal names, and authors’ names where the transcription follows that customarily used. For consistency in the list of references, Thai authors are listed by their last names.

INTERNATIONAL SURROGACY AS DISRUPTIVE INDUSTRY IN SOUTHEAST ASIA

INTRODUCTION

All of society is now permeated through and through with the regime of the factory, that is, with the rules of the specifically capitalist relations of production.… In the factory society the traditional conceptual distinction between productive and unproductive labor and between production and reproduction which in other periods had dubious validity, should today be considered defunct. (Hardt and Negri 1994, 9)

The last twenty years have witnessed the growth of an international commercial surrogacy industry across Asia. In this book, I describe and analyze the organization and nature of this industry through the perspectives of the people most involved in it. I argue that in Asia, an aggressively marketed model of surrogacy emerged first in India, then traveled across to Thailand, Nepal, and, more recently, Cambodia and Laos. The model of commercial surrogacy that emerged in Asia was disruptive, with a number of characteristics in common with other post-Fordist disruptive industries. It superseded older, more bespoke forms of commercial surrogacy arrangements and created mass availability, rapid accessibility, and new demands for surrogacy services.

Since 2014–2015, controversial cases involving criminal trafficking, the abandonment of children, and legal complications involving children being left stateless have led to the closure of commercial surrogacy and restrictions on all forms of surrogacy in a number of Asian countries. The closure of commercial surrogacy to foreigners in India, in particular, led to the growth of new destinations. International surrogacy moved to Thailand, Nepal, and Cambodia, only to later be banned in all these countries. In this book, I concentrate upon the various elements of this industry—an assemblage of clinics and assisted reproductive technologies (ARTs), medical staff, facilitators, intended parents, communication technologies, ova donors, surrogates, and advocacy groups—and how these came together to form the commercial surrogacy market in Thailand and across Southeast Asia. I use this as a means to reflect more broadly upon the nature of this post-Fordist trade in reproductive potentials.

The economist Klaus Schwab (2017) asserts that our current world economy is undergoing profound transitions. He terms this the industrial revolution 4.0, in which the advent of new technologies, including reproductive and biotechnologies, is resulting in new models in the ways businesses are organized, in how value is generated, and in how our economy is organized, causing profound changes in our economic systems and social structures. He describes these technological shifts as disruptive, a term coined by management scholar Clayton Christensen (Bower and Christensen 1995; Christensen 2003), who defined a disruptive innovation as one whereby a smaller company creates a new market and value network among overlooked segments of the market, frequently at a lower price, and thereby eventually disrupts an existing market and values, displacing previously established ways of doing things. In this book, I use the term disruptive industry to describe the emergence of a new business model and value market of international surrogacy that emerged and spread across Asia from 2002. The transformative novelty of this industry model is dependent on a range of sociotechnical processes within the IVF clinics involved, as well as the social context and regulatory environment, and how it has been mobilized, embraced, valued, and consumed by those involved.

The development of innovative industries based upon new technologies, subcontracting, and on-demand readiness is a hallmark of the profound changes occurring in the world economy and the new relations emerging between capital and people. In the quote opening this chapter, Hardt and Negri (1994) spoke of the factory society and the dissolution of distinctions between production and (social) reproduction. In the post-Fordist economy described in this book, not only have the factory walls dissolved, but reproduction is production. These changes have coincided with various forms of neoliberal deregulation, increased individualization, and decreases in social welfare and state responsibilities. At the same time, consumers can now easily source commodities across the globe through the internet and affordable international travel. In turn, the advent of various biotechnologies is further transforming the means of production as bodies themselves become sources of value—not just through their labor value. These changes have provided the context for the development of the international surrogacy industry. Throughout this book, I argue that the organization and practices of this disruptive surrogacy model create differential vulnerabilities for those enmeshed within its re/production logic: the intended parents, surrogates, and children.

SURROGACY

Few topics have attracted so much academic and popular interest as surrogacy. Although various forms of traditional surrogacy arrangements have long existed, gestational surrogacy and ova donation became possible only following the development of ARTs. In traditional, partial, or genetic surrogacy, a woman uses her own ova to be fertilized through some form of artificial insemination, intercourse, or in vitro fertilization (IVF), and then carries the resulting pregnancy to birth for others. She is the genetic parent of the offspring. In gestational or host surrogacy, the surrogate has no genetic relation to the embryo implanted in her womb. With the advent of gestational surrogacy, an infertile couple now can use any combination of donated gametes or their own gametes and have the resultant embryo implanted in the womb of a surrogate to carry the pregnancy and give birth to the child, who is then handed over to them. IVF technologies have thus allowed various new forms of gestational surrogacy for people who previously had no opportunity to have genetically related children. Surrogacy may be used to enable couples who are unable to gestate a pregnancy for medical reasons, such as the absence of a uterus in a woman, the inability to carry a pregnancy, or recurrent failed implantation and recurrent miscarriage and single males and same-sex male couples to have children. The fact that the gestational surrogate has no genetic relationship to the resultant child makes it more attractive to surrogates and intended parents, as it is presumed that there will be fewer emotional ties to that child.

Although the first gestational (and commercial) surrogacy took place in 1985 (Utian et al. 1989) at the Mount Sinai Medical Center in Cleveland in the United States,¹ it was not until the 1990s that gestational surrogacy arrangements began in Asia. The use of surrogacy is highly controversial in many countries due to a range of ethical, religious, and legal concerns, and as a result many countries ban or greatly restrict the forms and conditions under which surrogacy may take place.

According to the International Federation of Fertility Societies’ (IFFS) 2016 survey of sixty-five countries, gestational carriers are permitted by statute or guidelines in twenty-four countries (eight do not allow traditional surrogacy arrangements). Thirty-six countries reported that gestational surrogacy was not allowed, and respondents from seven countries were not able to answer the question (International Federation of Fertility Societies 2016). Commercial surrogacy is banned in most European countries, Australia, China, Taiwan, Japan, Turkey, and some US states. Other countries, such as Brazil, Israel, and the United Kingdom, have partial bans. In some jurisdictions, only altruistic surrogacy, in which the surrogate receives no form of payment, is allowed. In others, regulated and limited forms of compensation are allowed but below a level at which it could be considered a commercial exchange. There are relatively few jurisdictions that allow commercial surrogacy in which the surrogate receives payment for her service. Currently, these include certain states of the United States, Ukraine, and India. Elsewhere, countries with little or no regulation have become hubs for an international commercial surrogacy trade, and until recently this included Thailand and Cambodia.

THE ETHICS OF INTERNATIONAL SURROGACY

The advent of international gestational surrogacy provoked various responses questioning the ethics of surrogacy and means of regulation (Van Niekerk and Van Zyl 1995; Parks 2010; Donchin 2010; Gupta 2006; Humbryd 2009). The debates centered around issues related to the commodification of women’s bodies and exploitation in surrogacy arrangements versus notions of reproductive freedom (Berkhout 2008). Eight ethical concerns associated with the transnational surrogacy trade have been identified (Deonandan, Green, and Beinum 2012). These concerns are focused on the challenges of informed consent given that most commercial surrogates are poor and in some cases illiterate; the manipulation of custodian rights under law to favor the surrogacy trade; questions over the quality and conditions of surrogate care; the limited medical care offered to surrogates post-delivery; the question of appropriate remuneration for surrogates within a context of global economic disparities; the common practice of multiple embryo transfers and selective reduction; the lack of a medical advocate for surrogates given the financial conflict of interest for clinics; and the issue of whether free choice is possible under conditions of economic coercion. Ultimately, the ethical questions revolve around questions of autonomy and exploitation—whether there can be any justification for exposing a surrogate to the social, psychological, and medical risks of surrogacy, and how an ethical transaction can take place given the vested interests of clinicians and commissioning parents (Deonandan, Green, and Beinum 2012, 3).

Marxist and radical feminists describe surrogacy as the ultimate example of patriarchal medicalization, commodification, and exploitation of women’s bodies and as demeaning to motherhood and human dignity, with some likening the commercial transaction to a form of prostitution or slavery (Arditti, Klein, and Minden 1984; Corea et al. 1987; Dworkin 1983; Klein 2008; Raymond 1995; Rothman 1988, 1989). In contrast, liberal feminist approaches respect surrogacy as another reproductive choice for women. Often based upon empirical studies with surrogates, they highlight how women involved in the surrogacy process view their bodies, act as agents negotiating the surrogacy, and assert positive interpretations of the experience of surrogacy (Goslinga-Roy 2000; Ragoné 2005; Roberts 1998; Teman 2001, 2003, 2010).

ANTHROPOLOGICAL STUDIES

Anthropological accounts of international surrogacy suggest that the experience of surrogacy is complex and appears dependent upon the social and legal context in which it takes place, the level of social acceptability of surrogacy, the social and emotional support available for all parties, and the nature of the contract between the surrogate and commissioning parents. For example, writing of surrogacy within the context of ardently pronatalist Israel, where state-sponsored ARTs are readily available, Teman (2001) argues against depictions of surrogacy as a form of alienated bodily labor, suggesting that women are able to appropriate their medicalization in positive and empowering ways. She describes an intense hybridised fusion that occurs between surrogates and intended mothers, creating a sense of shared embodiment of the pregnancy (Teman 2003, 2010).

In other settings, however, authors have noted how surrogacy relationships reproduce class and race hierarchies, especially in contexts where gestational surrogates often come from poorer or racially different backgrounds from that of the commissioning parents (Ragoné 2000). For example, in the United States, gestational surrogates tend to be from poorer, black, and ethnic backgrounds (Roberts 1995). Writing of an open surrogacy arrangement in the United States, Gillian Goslinga-Roy (2000) analyzes how biogenetic discourses and class ideologies deny the surrogate’s attempt to develop an intimate relationship with the commissioning parents, who she argues are unable to perceive the surrogate as anything other than a womb. She provides a nuanced analysis of how class and race structure the embodied experience. Such differentials of class and race are particularly marked in international surrogacy arrangements (Vora 2012).

Susan Markens (2007, 2012) describes how gestational surrogacy has been positioned within two tropes—the plight of the infertile couple and baby-selling frames—each producing different understandings of the surrogate body as either altruistic or commoditized, and calling for different types of social intervention accordingly. In relation to international surrogacy, the additional trope of