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      Institutions in Crisis


                                                 Teaching Notes

         COMMERCIAL SURROGACY AND
          FERTILITY TOURISM IN INDIA
                                          The Case of Baby Manji

                                                             Kari Points




                       Japanese couple Ikufumi and Yuki Yamada traveled to India in late 2007 to
                       discuss with fertility specialist Dr. Nayna Patel their desire to hire a surrogate
                       mother to bear a child for them. The doctor arranged a surrogacy contract with
                       Pritiben Mehta, a married Indian woman with children. Dr. Patel supervised the
                       creation of an embryo from Ikufumi Yamada’s sperm and an egg harvested from an
                       anonymous Indian woman. The embryo was then implanted into Mehta’s womb.
                       In June 2008, the Yamadas divorced, and a month later Baby Manji was born to the
                       surrogate mother. Although Ikufami wanted to raise the child, his ex-wife did not.
                       Suddenly, Baby Manji had three mothers—the intended mother who had contracted
                       for the surrogacy, the egg donor, and the gestational surrogate—yet legally
                       she had none.

                       The surrogacy contract did not cover a situation such as this. Nor did any
                       existing laws help to clarify the matter. Both the parentage and the national-
                       ity of Baby Manji were impossible to determine under existing definitions of
                       family and citizenship under Indian and Japanese law. The situation soon grew
                       into a legal and diplomatic crisis. The case of Baby Manji illustrates the com-
                       plexity and challenges faced by institutions in the face of emerging technologies.

                       An overview of the Kenan Institute for Ethics’s Institutions in Crisis framework,
                       in which this case was created to illustrate, accompanies these teaching notes.


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Case Studies in Ethics: Teaching Notes                                                                                    dukeethics.org
      1.   Open class with reactions to the case:

               a.   What do you know about commercial surrogacy and fertility tourism?

               b.   Does anyone have personal or family experience with commercial surrogacy, or with traveling to
                    another country for medical treatment? Does this case resonate in any way with your experiences or
                    those you’ve heard about?



      2.   What triggered the crisis in this case? When did it occur?

           In the most general terms, a “crisis” may be defined as a moment when understandings of “what should be”
           can no longer be applied to the situation at hand. Participants in the Baby Manji case experienced a sense of
           crisis on a personal level, but the crisis was also experienced at the institutional level when both the available
           understandings of family and the existing legal structures related to family and citizenship were unable to
           accommodate the phenomena of commercial surrogacy. Having two countries involved exacerbated the sense
           of crisis.

           An important point to emphasize in the discussion is that institutional crises are complex, with multiple actors,
           causes and factors contributing to their development. We may limit our understanding of the case when we try
           to identify a single person or moment in time as the key to the crisis. A better approach may be to allow the
           layered complexity of the case to stand as it is.

           Possible responses:

               a.   The moment the contract was signed

               b.   The Yamadas’ divorce

               c.   Baby Manji’s birth

               d.   When Mr. Yamada applied unsuccessfully for identity and travel documents for the baby

               e.   When the case started to attract international media attention

               f.   When the NGO Satya accused Akanksha of child trafficking

               g.   When Dr. Patel refused to acknowledge Akanksha’s role



      3.   For whom was this case a crisis? What was at stake for the different institutions, groups, and individuals
           involved?

           Possible responses:

               a.   Akanksha Infertility Clinic and other such clinics

                         i. Contestation over the Baby Manji situation threatened the legitimacy of infertility clinics in
                            India. With a loss of legitimacy clinics would lose credibility with foreign clients and likely
                            be more heavily regulated by the government. Both of these events could result in lost income
                            for the clinics.




Case Studies in Ethics: Teaching Notes                            2                                                 dukeethics.org
                b. Medical tourism companies

                            i. Medical tourism companies have made significant profits from commercial surrogacy by
                               using sophisticated Internet-based strategies to market comprehensive services to prospective
                               fertility patients. Designed to bridge the distance between healthcare consumers in developed
                               countries on the one hand and healthcare providers and surrogates in developing and
                               transitional-economy countries on the other, these services depend on low prices and lack of
                               regulation in India to keep costs and hassles to a minimum.

                c.    Intended parents

                            i. Fertility tourists now come to India in search of surrogates from a wide range of countries,
                               including Britain, France, the United States, Canada, Singapore1, Japan2, Australia3, the
                               Middle East4 and Israel5. The discrepancy between access to treatment at home and access
                               abroad is perhaps the most significant contributor to the growth of fertility tourism in general
                               and commercial surrogacy in particular.

                            ii. Infertility patients are motivated to seek treatment abroad because costs are substantially
                                lower. Many patients have exhausted their domestic options by the time they consider
                                traveling abroad because of high treatment costs at home, often stemming from little or no
                                insurance coverage for infertility procedures. Commercial surrogacy in India (US $5,000-
                                $12,000) costs significantly less than in the United States ($40,000-$100,000).6

                           iii. Another motivation is the ability to circumvent legislation in their home countries that
                                precludes patients from receiving desired services. For example, eight US states (AZ, IN,
                                KY, LA, MI, ND, NE and NY) and Washington, DC, and all but six European nations ban
                                surrogacy outright, and many other states and countries discourage it.7

                           iv. Going abroad can also allow patients to skirt restrictions such as bans on services for
                               lesbians, gay men, older women or single people, and caps on the number of embryos that
                               can be implanted in surrogates at one time. Fertility tourism can also help patients surmount
                               administrative hurdles: Britain currently has a seven-year waiting list for donated eggs.8

                d. Surrogates and egg donors

                            i. Surrogates and egg donors earn significant fees from their services, and they consent to the
                               procedures by signing contracts.

                            ii. However, they also undergo invasive medical procedures such as intensive hormone
                                treatments and multiple-embryo implantation without access to legal protection of their
                                health and human rights. And the significant disparity in economic and social capital between
                                fertility patients on the one hand and surrogates and egg donors on the other brings into
                                question whether such consent can truly be considered fully informed.
      1
        Mukherjee, Krittivas. “Rent-a-womb in India Fuels Surrogate Motherhood Debate.” (Reuters, February 12, 2007). http://geneticsandsociety.org/
      article.php?id=3386.
      2
        “Surrogacy a $445 mn Business in India.” The Economic Times (August 25, 2008).
      3
        Haworth, Abigail. August 2007. “Surrogate Mothers: Womb for Rent.” Marie Claire. http://www.marieclaire.com/world/articles/surrogate-mo-
      thers-india.
      4
        Gupta, Jyotsna Agnihotri. 2006. “Towards Transnational Feminisms: Some Reflections and Concerns in Relation to the Globalization of Repro-
      ductive Technologies.” European Journal of Women’s Studies 13(1): 30.
      5
        Gentleman, Amelia. “India Nurtures Business of Surrogate Motherhood.” New York Times (March 10, 2008).
      6
        Galpern, op. cit., pages 11-12.
      7
        Ibid, 17.
      8
        Higgins, op. cit.




Case Studies in Ethics: Teaching Notes                                      3                                                         dukeethics.org
                e.   People born via surrogacy

                            i. Fundamental questions about the identity, parentage and nationality of people currently born
                               via commercial surrogacy remain unanswered. Even if these questions are addressed in new
                               legislation, the deeper issues that surrogacy raises remain. How does surrogacy complicate
                               the identities of such people, and what tradeoffs are involved for them in permitting surrogacy
                               contracts? How can their rights be protected when contracts are signed prior to their
                               conception? What access to birth, medical and legal records should people born via surrogacy
                               be entitled to over the course of their lives?

                f.   Indian government

                            i. A key factor complicating reform of the commercial surrogacy industry is the lack of capacity
                               in current Indian law to address emerging issues. This is an outgrowth of the government’s
                               enthusiastic promotion of a business climate that is friendly to the medical tourism industry,
                               which was founded on the outsourcing model pioneered in other industries in India. At both
                               the national and the state level, the Indian government promotes the country’s reputation as a
                               premier destination for medical tourism,9 because the industry serves as a driver of economic
                               growth as well as an income generator for the state in the form of tax revenue. The absence of
                               industry regulations attracts patients and keeps fertility treatment costs low.

                           ii. “The legitimising of reproductive processes, like surrogacy, means legitimising its outcome
                               too. Therefore, the law not only has to adapt to the new technology, but has to meet the
                               challenge of marrying the old with the new without unsettling what we hold dear.”10

                g.   Indian civil society

                            i. Satya, an Indian social justice NGO, filed for custody of the baby, claiming she had been
                               abandoned, a public gesture designed to draw attention to complex conflicting values about
                               family, technology and commodification of children. What investment does civil society have
                               in seeing these questions aired?

                           ii. Tension exists in industrializing nations between economic growth and human rights. Of equal
                               concern is the diversion of primary healthcare resources—including fertility treatment—away
                               from low-income women and families in favor of the tertiary care offered to wealthier patients
                               from India and abroad.11



      4.   What does this case tell us about our Institutions in Crisis framework?

                a.   An organization’s mission may be clearly stated, as Akanksha’s was (“provide infertility treatment to
                     patients using modern medical technology”), yet be too broad to be meaningful. And an organization’s
                     social contract is rarely spelled out.

                b.   Stakeholders may have contradictory understandings of the social contract, and it may be unclear who
                     can rightfully be considered a stakeholder. Excluded or marginalized stakeholders in this case could
                     include people born via surrogacy, egg donors, and the Indian public healthcare system, government
                     and public.

      9
         Mulay and Gibson, op. cit., page 85.
      10
         Makhija, Sonal. “New born challenges.” Daily News & Analysis (October 12, 2008).
      11
         Mulay and Gibson, op. cit., pages 91-92.




Case Studies in Ethics: Teaching Notes                                    4                                        dukeethics.org
               c.   Contested interpretations of the relationship of the organization to the stakeholders raise issues of
                    accountability. When missions fail to account for all of the stakeholders and their understandings of
                    the social contract, a crisis can arise. Is Akanksha accountable only to those who sign a surrogacy
                    contract? Or do they have broader obligations to the Indian legal and healthcare systems, to the people
                    born via surrogacy, and to civil society?

               d.   This case also illuminates the problems that can emerge when stakeholders have different
                    understandings of how long social contracts should be considered valid. Does Akanksha’s
                    responsibility to the intended parents, surrogates, egg donors and people born via surrogacy extend
                    beyond the nine-month gestation period? Do they have an obligation to provide ongoing healthcare?
                    Access to information and records? Help with legal issues?



      5.   Can we envision this case unfolding differently if other structures had been in place, or is this just
           inevitably messy terrain?

               a.   The case brought to light the inadequacy of the voluntary guidelines to address the family structures
                    made possible by emerging biotechnology. The draft legislation would address the concerns of a
                    broader array of stakeholders and expand the social contract beyond the gestation period. In what ways
                    would this address the complex questions the case raises about family, parenthood and citizenship?
                    In what ways would it fail to do so? Is it possible to redefine family under the law in such a way that
                    accounts for the new relationships this case creates?

               b.   Is the legal ambiguity of parentage in cases such as this only resolved by banning commercial
                    surrogacy, as many other countries have? What are the risks and benefits of such a ban?

               c.   What about disputes between the surrogate and the intended parents? Can the law ever adequately
                    respond to the question about which parents have the larger claim to the child?




Case Studies in Ethics: Teaching Notes                          5                                                dukeethics.org
      Overview of Institutions in Crisis Framework
      In response to a series of notable public scandals – accounting fraud at Enron, plagiarism at The New York Times,
      torture at Abu Ghraib, sexual abuse in the Catholic Church, and steroid use in baseball – the Kenan Institute for
      Ethics organized an interdisciplinary group of two dozen faculty and graduate students from across Duke University
      and the United States to examine ethical crisis and change. Based on interdisciplinary scholarship, we have
      developed a set of hypotheses about what makes institutions more susceptible to crisis and amenable to redress.
      We’ve identified five key attributes of institutional ethos: accountability, organizational structure, social contract,
      identity, and mission.

      Accountability refers to how explicitly or implicitly expectations are communicated and enforced within an
      institution’s hierarchy. Militaries with their strict, clearly defined chains of command have explicit accountability
      regimes while universities, which foster considerable organizational autonomy among professional spheres, tend
      toward more implicit accountability regimes.

      Organizational Structure ranges from hierarchical to horizontal. The Catholic Church, for example, is a hierarchical
      organization, while Islam often assumes a more horizontal or network form. Dissent – political or ideological
      – is more routine in network forms and may help diffuse crises before they reach a critical stage. In contrast, a
      crisis anywhere in a hierarchical organization represents a more systemic crisis. Hierarchical organizations, like
      organizations with explicit accountability regimes are, however, more amenable to speedy intervention following
      a crisis.

      Social Contract refers to the formal or informal relationship an institution has with its stakeholders. Military and
      business institutions, for instance, have formal social contracts with their stakeholders while higher education
      institutions have more informal social contracts with their stakeholders. Ethical crises – understood in part as
      violations of the social contract – are more readily observed in military and business institutions, and there are
      formal (if difficult to negotiate) channels for efforts to address such violations. In higher education, the social
      contract is loosely held amongst a variety of constituencies – students, faculty, parents, alumni, government
      regulators, civil society – which makes swift identification and remediation of an ethical crisis more difficult.

      Identity refers to an affective sense of belonging that institutions generate and perpetuate. Identity can be a
      more or less salient component of institutional culture and can span the spectrum from strong to weak. Business
      organizations typically have weaker affective identities than religious organizations. Islamic institutions in the
      United States, for example, represent a strong sense of communal belonging that is coupled with a decentralized
      and diffused organizational structure. This combination of strong identity and weak structure has enabled Islamic
      institutions to respond well to the tensions and strains of a post-9/11 America.

      Mission refers to the implicit and diffuse or explicit and detailed statement of being and purpose. What does an
      institution actually say it does? Business organizations tend to have explicit and detailed mission statements and
      deviations from the mission are more quickly observed and addressed. Higher education institutions, by contrast,
      tend to have implicit and diffuse mission statements such that while crises may arise less frequently they may also
      be far more difficult to confront and remediate.

      While moments of ethical crises offer opportunities for reflection, there is little consensus about the best strategies
      to create effective change in these moments. Indeed, organizations often do the very things that we know don’t work
      in moments of crisis. So, how do institutions learn to prepare for, respond to, or recover from ethical crises? Our
      cases seek to answer this question by illuminating how structural conditions make institutions both more or less
      susceptible to ethical crisis and more or less able to respond once an ethical crisis occurs.




Case Studies in Ethics: Teaching Notes                           6                                                 dukeethics.org

				
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