Commercial surrogacy in India: The presumption of adaptive preference formation, the possibility of autonomy and the persistence of exploitation

Abstract

India’s proposed 2016 Bill on the regulation of surrogacy is its latest attempt to respond to criticism regarding the lack of protection given to those entering into a commercial surrogacy arrangement. Adaptive preference theorists presume that a decision made in an oppressive environment, which is inconsistent with the woman’s well-being, is not autonomous and that she is therefore exploited. This article challenges this presumption, arguing that some decisions may be suspected as adaptive preferences but they may nevertheless be autonomous. However, it is contended that even if the choice is autonomous, there may still be exploitation given the imbalance of bargaining power and the nature of the service. Rather than a blanket ban on commercial surrogacy, it would be better to reduce exploitative conditions by establishing adequate protection and safeguards for the commercial surrogate and others who are party to the arrangement.