18-Month Prison Sentence Handed Down For Heinous Crime Surrogacy
Advocates for families should not be treated in this way.
Last week, a Cambodian Court sentenced Australian nurse Tammy Davis-Charles to an 18-month prison term. Her crime? Involvement with surrogacy arrangements in Cambodia. As you may remember, I discussed Davis-Charles’s arrest in November 2016 after the Cambodian government outlawed surrogacy. At the time, the country criminalized surrogacy in the wake of a number of scandals in surrounding countries. (I will go the rest of my life assuming that my previous article persuaded Kim and Kanye not to go to Cambodia for their surrogacy.)
Davis-Charles was convicted along with two Cambodian associates. One was Samrith Chakrya, a nurse and interpreter. The other was Pech Rithy, a commercial ministry official. The three were convicted of helping to arrange illegal surrogacy relationships and of falsifying documents.
Before this, Davis-Charles had been living and operating as a surrogacy facilitator in Thailand. When Thailand cracked down on surrogacy for foreign intended parents, Davis-Charles moved to Cambodia. Cambodia’s law at that time was not clearly established.
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A Mysterious Controlling Organization. In her defense, Davis-Charles claims she consulted with three different local Cambodian attorneys who all assured her it was not illegal to provide surrogacy services under Cambodian law. She also claimed that she was just a small player, and that a Thailand-based organization recruited and sent her the surrogate women while she merely provided supporting care. She said that she and Rithy worked for a Bangkok brokering organization called Sy Management. Rithy, however, denied the claim. (I don’t know who’s lying, but the “Sy Management” story doesn’t sound implausible to me. In any event, who doesn’t love a story involving a mysterious international organization pulling the strings, but with its operatives denying its existence?)
No One Wants To Be The Example. No one doubts that Davis-Charles was arrested and prosecuted as an example to others. It is reported that there were more than 50 surrogacy agencies operating in Cambodia at the time the law came down declaring surrogacy illegal. Davis-Charles and her two associates have been the only arrests and convictions.
Cancer. As a supporter of (responsible) surrogacy, I have a lot of sympathy for Davis-Charles. Her work was to enable childless intended parents who couldn’t afford U.S. prices, and to let them achieve their dreams of expanding their families. The surrogate mothers who testified confirmed that they were not coerced into surrogacy, as some had feared.
Things have only become worse for Davis-Charles, who has stated to the court that she has lost everything. She is unlikely to see her young twin boys (born via a Thai surrogate) any time soon. She further lamented that she has cancer in her left eye and quickly deteriorating vision. (It is not clear what kind of health care Prey Sar, the Cambodian prison Davis-Charles now calls home, offers. I am guessing it’s no Mayo Clinic.)
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The Captain of the Titanic. Prominent Australian fertility attorney Stephen Page does not feel my same level of sympathy for Davis-Charles. As quoted in The Cambodian Daily, he explained that Davis-Charles had been warned by multiple sources, including the Australian Embassy, of the dangers of operating in this area in Cambodia. And yet “she continued to promote intended parents to come to Cambodia.” (Clearly, Page does not believe Davis-Charles’s defense that she was not recruiting parties for the surrogacy arrangements.) “It was as though she was the captain of the Titanic, who upon being told there was ice, decided instead to go full steam ahead…. Quite simply she was reckless not only for herself, but much more importantly the intended parents, the surrogates she induced to carry babies for foreigners and above all in the lives of the most vulnerable—the children. Tammy Davis-Charles knew the risks and blithely ignored them. I hope she never has anything to do with surrogacy and fertility services again.”
Page thought the allegations of falsifying documents was especially concerning and suspected that Davis-Charles’ illegal activities probably went further back than her time in Cambodia. “[Falsifying documents] is an issue that really worries me — for all concerned but especially the child who when growing up may want to know where they came from — and will never know, because the truth is not in the documents. Tammy was a promoter of surrogacy in Thailand before Cambodia. One wonders whether she falsified documents there too.” Very valid concerns.
The Handmaid’s Tale. I have been trying really hard to avoiding talking about The Handmaid’s Tale, Hulu’s latest sensation depicting a dystopian U.S. where fertile women are used against their will to carry children for others. As a supporter of surrogacy, I feel irritated by the articles by anti-surrogacy proponents, claiming we are already living in a Handmaid’s Tale world, with women being used against their will for surrogacy.
The Cambodian situation feels more comparable to The Handmaid’s Tale to me. As a woman, why can’t I carry a child for someone else if I choose? Can’t I decide what I do with my own body? Why should someone be arrested for helping me? I understand and agree with Page’s concerns about falsifying documents and endangering others, but I feel incensed with the growing laws dictating how a woman can use her body. Imposing prison sentences for to surrogacy facilitation marks a new, sad level. I hope for a successful appeal for Davis-Charles. And some quality medical care while in prison. And on a larger scale, I hope we do not see other “examples” being made of advocates for families.
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Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning, and Co-Director of Colorado Surrogacy, LLC, a surrogacy matching and support agency. You can reach her at [email protected].
