The Wild, Wild West of Thai Surrogacy

The horrific case of an abandoned baby with Down syndrome has exposed the lawless world of international surrogacy. If there are any rules, no one knows what they are.

Damir Sagolj/Reuters

The case of baby Gammy grows more baffling each day. What was initially a black-and-white story of wealthier, culturally insensitive Western parents taking advantage of an impoverished young Thai woman has been complicated over and over again. Details are still fuzzy and the only thing clear is that Thailand is a Wild West of unclear regulations, legal loopholes, and sporadic government crackdowns.

Baby Gammy first garnered international attention as a tragedy. Pattharamon Chanbua, a 21-year-old woman from a poor village in Thailand, acted as a surrogate for David and Wendy Farnell, a couple from Western Australia. Chanbua became pregnant with twins, one of whom was a boy with Down syndrome. She claims the Farnells asked her to abort the son. When she refused, the Farnells were reported to have abandoned the baby and only took his healthy twin sister. The world was aghast. Even the Vatican weighed in, condemning the case as proof of our “throwaway culture.”

But via a family friend, the Farnells completely refuted Chanbua’s claim. The Farnells were told Gammy was going to die within a day and Chanbua wanted to give him a traditional Thai funeral. According to them, it became a messy legal battle just to get Gammy’s sister home, and they allowed Gammy to stay once they had at least her.

Things have become only more complicated this week when Australian authorities confirmed that David Farnell had been convicted of molesting two girls under the age of 13 in 1997 and served three years in jail.

Yet, in the chaos of Thailand’s fuzzy laws for commercial surrogacy, Chanbua is the one facing arrest. Authorities are now investigating the woman Australia’s Immigration Minister Scott Morrison called a “saint.” The head of the Department of Health Services Support claims that providing surrogacy services to a foreign couple can be punished by up to 12 months in jail and financial penalties.

Gammy may be a single egregious case of commercial surrogacy, but it illustrates the growing international problems with an industry governed by unclear and sometimes conflicting regulations. For Thailand in particular, the country’s simultaneously increasing political turmoil and popularity as a commercial surrogacy hotspot has created a perfect storm.

India was once considered the go-to spot for commercial surrogacy, but Thailand is the emerging market, so to speak. For Australians, Thai surrogate services increased 500 percent in the last year alone, according to the Australian Broadcasting Company. That’s at least partially because India has limited its $400 million surrogacy industry by effectively banning same-sex couples and single people from participating in it. As of last July, surrogate couples must obtain a special visa that shows they are a heterosexual couple that has been married for at least two years.

Until recently, Thailand was one of the most unregulated locales for commercial surrogacy. That also made it appealing for couples barred from the (relatively) regulated world of Indian commercial surrogacy. “Thailand is perceived as being cheap, quick and hassle-free,” said Stephen Page, an Australian lawyer with an expertise in surrogacy, in an email to the Daily Beast. “Australians in particular were drawn to Thailand because it is close, and surrogacy laws in Australia are so complex and difficult that surrogates are not available and nor are egg donors.”

But the risks of going to Thailand were well-established prior to the Gammy case. Jenni Millnank, a law professor at Sydney’s University of Technology, predicted in 2013 that Thailand would prove to be a problematic country for commercial surrogacy due to its lack of clear laws regarding parentage. "The main problem is the uncertainty over the parental status of the intended parents and the lack of process for transferring parental status from a surrogate to the intended parents," she told the Australian Broadcasting Company.

And these fears were proven a reality in January when it was revealed that nearly 65 Israeli couples in Thailand were blocked from bringing their babies homes, some for months on end. Israel hesitated to issue passports to the infants because a Thai law passed late in 2013 granted a surrogate mother full custodial rights. The Israeli consulate was initially loath to get involved with commercial surrogacy, saying removing the babies form Thailand could be construed as kidnapping.

In the past week, Thailand has taken severe measures to transform its international image as a surrogacy free-for-all, but it has come no closer to providing legal clarity for surrogates nor prospective parents. In response to the case of baby Gammy, Thailand has launched a new series of regulations to strictly reduce the surrogacy industry by limiting who can qualify as a surrogate and under which circumstances “Thailand declared it will only be available to heterosexual couples with a medical need and a blood relative to carry the baby,” Sam Everingham, the president of Surrogacy Australia, tells the Daily Beast. “There will be no paid surrogacy and no sex selection.”

However, a spokesman for Australia’s Department of Foreign Affairs and Trade confirmed, “There is no specific legislation which explicitly regulates surrogacy in Thailand.”

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Rather, there are nebulous decrees that can potentially be enforced by the Thai authorities. Nothing is particularly clear because Thailand is in the middle of political upheaval and governed by martial law. In documents shared with The Daily Beast, a Thai lawyer stated that many of the regulations stemmed from pronouncements made by the Medical Council of Thailand that weren’t “technically law,” but against the organization’s code of ethics for doctors. The lawyer states in the document that:

“This is a matter of Thai authorities having a particular interpretation of law, which seems to be wrong, and applying medical ethics as if it was law…. At this time the government of Thailand is run by the military, who can issue decrees with immediate effect, it does seem that henceforth, surrogacy will be limited to the scope identified as ‘legal’ by the Thai authorities.”

A military junta rarely lends itself to establishing legal clarity, but it is certainly not the answer with an issue as emotionally fraught as commercial surrogacy. So far, the Thai military has only made things worse. On Tuesday night, the Thai military raided the IVF clinic where Chanbua was impregnated with Gammy and his twin. Four infants in the clinic who were being watched by a nanny while their parents reportedly finalized the departure details were taken into custody by Thai authorities. In total, nine infants have reportedly seized by the military in the crackdown.

Not only has this crackdown hurt families and surrogates, it hasn’t actually rectified the legal problems authorities purportedly want to fix. “There have been loopholes in the past in Thailand. There will be in the future,” says Everingham. “Parents may say they have a relationship with the surrogate when they don’t or say they haven’t paid when in reality, money has been exchanged.”

And the reality is, it’s not just Thailand’s problem. The Western nations that are increasingly relying on less developed countries for surrogates as the practice is banned or too expensive in their own homelands also bear responsibility. “There is no global surrogacy system,” says Page. “That’s the problem. When surrogacy is enabled in any country, then the laws of that country apply.”

Page says there is a dire need for greater regulation of “unscrupulous operators” within the commercial surrogacy industry who exploit incredibly vulnerable populations, from people so eager to be parents they are willing to pay thousands of dollars to young women who often come from impoverished, rural backgrounds. “Commercial surrogacy needs to be properly regulated,” says Page, “preferably with judicial oversight, to be able to work properly, and the clinics and agencies are transparent and held to be honest (or driven out of business).”

The Hague will hold a convention on commercial surrogacy next month, but Everingham worries that a singular international response will not work. It could be exceedingly difficult to create a universal set of legal guidelines to apply to prospective parents around the globe, especially since current surrogacy laws not only differ from country to country, but state to state. For example, in Australia, commercial surrogacy is illegal in all states, but only some of the states say it is illegal to go abroad to engage in commercial surrogacy.

“In our experiences, international conventions don’t work,” says Everingham. “The Hague convention on adoption was somewhat of a disaster.” Ultimately, the complex stipulations under that agreement “pushed a whole lot of Australians off of adoption and drove them into surrogacy.”

Everingham says it is essential for surrogacy agencies to be better monitored. “There is often a failure of regulations within those countries and no accreditation.” But he also points out that parents need to be better educated about the surrogate mother’s background and have open lines of communication. “There’s a failure of parents engaging overseas to understand the cultural norms. There should be counseling of parents upfront.”

Unfortunately, that is rarely the case in the commercial surrogacy industry. When couples are desperate for children and see a way to have one, especially a seemingly cheaper and faster way, they don’t weigh the risks when the reward is so great. The case of baby Gammy may be a wakeup call not only to the international community, but also to those considering commercial surrogacy.

“I think it’s going to deter some couples,” says Everingham, but he doesn’t think that is necessarily a bad thing. “You should only go ahead if you’re determined and you’ve done your research first. It’s the kind of arrangement that needs commitment, both emotional and financial. It’s good to make clear this can be a risky business.”