The case of an Australian couple accused of abandoning their child with his Thai surrogate mother after discovering he had Down syndrome — and taking home his healthy twin — has turned global attention to the murky underworld of international surrogacy.
Such cases have raised ethical and legal dilemmas, which experts say are the inevitable consequences of an unregulated multibillion-dollar industry dependent on impoverished women in developing countries providing a “product” — a child — so desperately wanted by would-be parents in wealthier nations.
In Baby Gammy’s case, which made international headlines this month, the boy’s Australian parents are claiming that the Thai surrogate mother, Pattaramon Chanbua, refused to release the child into their custody and that they lacked the legal right to force her to do so.
Pattaramon said she was not initially informed that the child had Down syndrome even though the doctors, the agency brokering the surrogacy arrangement and the child’s parents knew when she was four months pregnant.
She said the agency waited until the seventh month to ask her — at the couple's request — to abort the fetus, which she refused to do because she believed it would be a sin. Instead, she asked the agent for 40 percent more money. In the end, she said she was paid only half the agreed price.
Since then, Pattaramon has raised more than $200,000 through an online fundraising campaign initiated by an Australian charity, after heavy media coverage. Among the details that have emerged about the situation was that man reported to be the father of Gammy is a convicted child sex offender.
Even before Gammy’s case entered the international spotlight, the legal challenges of transnational surrogacy prompted the Hague Conference on Private International Law, an intergovernmental organization, to begin investigating commercial surrogacy in 2011. Earlier this year, the organization issued a report with its findings and a set of recommendations for policymakers.
The report's findings are the subject of a three-day forum to be held this week at The Hague, where about 100 policymakers, scholars and activists from 27 countries will meet to discuss ways to improve international standards on commercial surrogacy.
Days after the Baby Gammy controversy erupted, another case emerged in Thailand, involving the discovery of nine surrogate babies who allegedly share one biological father, a 24-year old Japanese citizen. It remains unclear why the man chose to have so many children.
Another recent case involves an Australian couple convicted in a U.S. court in 2013 of making child pornography with a boy they adopted after paying a Russian woman $8,000 to be their surrogate in 2005.
But even in straightforward surrogacy arrangements, in which the would-be parents have unblemished records and the child goes to a loving home, the complexities of international surrogacy raise legal questions. Should a sperm donor be considered the legal parent? How does the law regard a mother who gives birth to a child who is genetically unrelated to her? Can a contract require a surrogate mother to submit to an abortion if the intending couple wishes? Is the child a citizen of the country where he or she was born or where the intending parents — the industry name for parents who seek a surrogate — reside?
All these considerations represent new frontiers in international law because existing laws simply don’t cross over into this area well. As one expert put it, paying a woman to carry someone else’s child “is not like renting out an apartment.”
A doctor from a clinic in New Delhi in 2012 holds a baby he helped develop.Jonas Gratzer / LightRocket via Getty Images
The first surrogate baby arrived in the 1970s, and laws governing commercial surrogacy have since developed differently in every nation, meaning a child resulting from a surrogacy arrangement is not necessarily be recognized as a citizen of the parents’ country.
Some nations tightly restrict surrogacy or ban it outright, while others have no surrogacy laws and provide no oversight.
In the United States, some states forbid surrogacy contracts. Others, including California and Illinois, have regulations to help enforce agreements.
Some countries, including India and Thailand, have fairly lax regulations and are popular destinations for parents from developed countries such as Australia and Japan who are looking for affordable surrogate mothers. In India alone, about 3,000 clinics offer surrogacy services, according to Sama, a New Delhi organization working on women’s health issues.
Despite the proliferation of clinics, there is no international consensus on how to establish legal parentage in the context of surrogacy arrangements. This can leave children exposed to potential risks, including abuse and denial of citizenship.
Establishing legal parentage is important because it is the gateway through which many of the obligations owed by adults to children flow, the Hague report said. Issues involved include the child’s immigration status and who has parental responsibility for the child.
A common scenario highlighted in the report involves a case in which a child is unable to leave state A, where he or she was born, for state B, the intending parents’ home country, because state B does not recognize commercial surrogacy — as is the case in Australia. As a result, state B considers the surrogate mother and her husband the child’s legal parents.
The child is thus effectively stateless, leaving him and possibly the intending parents stranded in state A. In some cases, diplomatic solutions have been negotiated between the countries, including state A issuing a one-time transit visa to enable the child to travel to state B.
This process, however, can be time-consuming and inconvenient for families. In one case cited by the report, children and their father were stranded in India for more than two years.
The report said such cases demonstrate the importance of multilateral rules determining the child’s legal status before conception.