Animating the Affect–Care–Labor Link in the Wake of “The Surrogacy (Regulation) Bill”: Care Ethics and Policymaking on Indian Surrogacy

Abstract

Abstract Starting from the early 2000s, India was one of the most sought-after destinations for commercial surrogacy. However, in 2015 the government decided to ban transnational commercial surrogacy, and recently “The Surrogacy (Regulation) Act, 2021,” which bans commercial surrogacy altogether and confines it to its altruistic form, has been enacted. Our article makes a philosophical intervention into the policy debate around this move by analyzing various draft versions of “The Surrogacy (Regulation) Bill” which culminated in the ban. We argue that the Bill fails to realize its ethical potential since it is vitiated by a number of conceptual fallacies. We expose the conceptual fallacies by unpacking the concept of care in gestational surrogacy through the lens of care ethics. The robust conceptualization of care serves as a critical vantage point for analyzing the Bill's distorted understanding of care (and especially the affect–care–labor link) in gestational surrogacy. Consequently, we conclude that regulation of commercial surrogacy with fair compensation and due consideration for the agency of surrogates holds far greater ethical potential than a blanket ban on commercial surrogacy and mandating that it be practiced only in its altruistic form.