For the surrogacy industry in Thailand, business has been booming since India closed its doors to homosexual couples last year. In a bid to protect surrogates, children and commissioning parents, the Thai parliament is now poised to pass a Draft Surrogacy Act. Yet for many gay couples who have been forced to abandon their plans in India – at times mid-way through pregnancies – entering into surrogacy agreements is fraught with anxiety.
Until last year, ‘hiring a womb’ was a straightforward process in India. Since the law changed in January 2013, only heterosexual married couples can apply. Therefore many potential parents have decamped to the clinics of Bangkok. “Our business has increased three-fold in the past 12 months,” said Richard Sanchez, international patient consultant at the Bangkok-based Fertility Choices Group Southeast Asia. “Around 35% of our intending parents are gay men.”
However, legal changes loom in Thailand, and a Draft Surrogacy Act, approved for parliament’s consideration by cabinet in 2010, would prohibit commercial surrogacy and the act of brokering a surrogacy arrangement through a third party. The exact details, to be outlined by the Thai Medical Council, are unclear and, as Sanchez noted, Thailand is not expected to follow India in banning homosexual couples from agreements.
“We expect any legislation passed would reflect the tolerant nature of the Thai society,” said Bill Houghton, director of Sensible Surrogacy, an agency founded by a gay couple that has provided surrogacy services in Thailand and India. “The proposed legislation specifies that surrogacy will only be for married couples, but we expect that gay marriage will be approved in Thailand – if not approved, then accepted – and couples that come from countries where gay marriage is legal, those marriages will be accepted too.”
The cost of making a baby in a specialised Bangkok surrogacy clinic costs on average $40,000 compared with more than $100,000 in the US. But there are compromises. In a typical Thai commercial surrogacy agreement, an egg from a donor – who is not the surrogate – and sperm from one of the fathers is fertilised in vitro and then implanted into the surrogate.
According to Thai law, the surrogate mother, who has no genetic relationship to the baby, must have her name on the child’s birth certificate. She is also the legal guardian, as a child born out of wedlock is deemed to be the legitimate child of the mother. The father has no parental rights, even if he is listed on the birth certificate. The legislation therefore rules out lesbian couples, complicates matters for transgender clients and raises questions about legal guardianship for gay couples.
“In Thailand it’s more of an adoption process,” explained Geoff Moss, vice-president of Planet Hospital, a global broker of medical procedures in 18 countries. Moss said about 90% of surrogacy clients in Thailand are gay couples. “When the baby is born, you have to get the surrogate to relinquish all rights to the baby.” Prior to the procedure, surrogates are screened by independent doctors and enter into contracts outlining their intent to allow the child to be adopted by the biological sperm donor – the father listed on the birth certificate.
Although clinics play down this part of the process, it has caused legal problems across the world, as the contracts are not always legally binding, due to different laws in different countries.
At a meeting of the Hague Conference on Private International Law (HCCH), the world organisation for cross-border co-operation in civil and commercial matters in 2010, concern was expressed over the uncertainty surrounding the status of children born as a result of international surrogacy. This led to a commissioned preliminary report in which the most prevalent issues related to legal parentage and the nationality of children born to surrogate parents.
Comparisons were also made to the complexity of international adoption, where many developing countries – Cambodia, for example – set up a structural ‘supply’ of children available for adoption abroad to meet a structural ‘demand’ for children in economically advanced countries, and inter-country adoption spiralled out of control, forcing several states including Cambodia, Vietnam and Nepal to ban it completely.
“It hasn’t happened at our clinic, but it is something people worry about.”
According to data from five agencies specialising in international surrogacy and referenced in the HCCH’s preliminary report, there has been rapid growth in the market, with an increase of nearly 1,000% when comparing the number of arrangements in 2006 to those in 2010. The data, from Aberdeen University in Scotland, said that one of the five agencies reported a 6,000% growth in profits over the 12 years they had been in business.
In a paper published in the Journal of Medical Ethics in 2012, Dr Louise Ramskold from the North Middlesex University Hospital and Dr Marcus Posner from the Royal London Hospital explored the issues surrounding payment and raised the question of whether it is ethical to support “allowing ‘rich couples’ to rent a ‘poor woman’s womb”.
While the option of entering into a surrogacy agreement may be a lucrative option for poor women in Thailand, the paper points out that the decision could also be seen as coercive – that is ,the “price of refusal is too high” and “consent [is] an act of desperation”.
Furthermore, the perceived unequal bargaining power between the two parties could be seen as exploitation. “If the surrogate wants to leverage you for more money, theoretically she could,” said Moss. “It hasn’t happened at our clinic, but it is something people worry about.”
In Thailand’s current setup, fear surrounds the relinquishing of the surrogate’s rights to the baby they have carried – for both parties. “A lot of Thai women are afraid that the client will not take up the baby and they will be stuck with the baby,” said Moss. “The funny thing is, our clients are worried about the surrogate taking off with the baby.”
While Planet Hospital and Fertility Choices stated that the handing over of a child for adoption is not an issue, taking a child to the parents’ home country is potentially problematic. For example, many clients at Fertility
Thailand, a Bangkok-based fertility consultancy, are from Australia, where restrictions on adoption and surrogacy for same-sex couples have fed demand for Thai surrogates.
Although three Australian states prohibit commercial surrogacy and the acquiring of a child through a surrogate abroad, the Department of Immigration and Citizenship reported Australian citizenship applications on behalf of minors in Thailand rose 54% since 2008. Australian surrogacy advocates, speaking to the Sydney Morning Herald newspaper in September last year, said this proved that the threat of two years’ imprisonment and fines of up to $245,000 have done nothing to quell demand.
For gay couples returning to Australia with their child, one concern is the legal guardianship of their progeny. Due to the birth-certificate legislation in Thailand, only the biological father’s name is stated. As the commercial surrogacy industry is so young, it is unknown what may happen if that father dies, leaving the remaining father with no legal rights over the child.
For couples wanting a child though, the procedures offered by and professionalism of organisations in Thailand outweigh the risks. “We are seeing less scrupulous businesses are taking advantage of the desperation of not only the poor women who want to become surrogates but also the very desperate parents who are, in many cases, at the end of their emotional and financial rope,” said Houghton. “Anything the government can do to help safeguard them would be a great help.”