Family Law, Health Care / Medicine, Kids

I Want To Put A Baby In You: A Surrogacy Horror Story That Wasn’t Entirely True: Baby Gammy Revisited

You can't always believe what you read in the news, as demonstrated by recent revelations about a controversial case.

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Pattaramon Chanbua with Baby Gammy (image via AP/YouTube)

Pattaramon Chanbua with Baby Gammy (image via AP/YouTube)

First, I have a happy news update. I previously wrote here about Chrissy Teigen and John Legend, who conceived via IVF and used the controversial technique of pre-genetic diagnosis to choose the implantation of a girl embryo. On April 14, the couple welcomed their daughter Luna Simone Stephens. Congratulations to the new parents, and welcome Luna!

Now, we’ll move on to a surrogacy horror story. In 2014 and 2015, the world was appalled as news about the “Baby Gammy” case emerged. In the case, an Australian couple, David and Wendy Farnell, had entered a surrogacy arrangement in Thailand. The Thai surrogate, Pattaramon Chanbua, conceived twins, and one was diagnosed in utero with Down Syndrome. Media outlets reported that the Farnells came to Thailand after the birth and retrieved only the “healthy” baby, Baby Pipah, and abandoned her twin brother, Baby Gammy. The facts of the story took an even uglier turn when it was uncovered that David Farnell was a convicted child molester who had spent time in prison. Worse, Mr. Farnell faced allegations that he tried to access a trust fund set up for Baby Gammy’s medical expenses. Terrible!

Thailand’s Reaction: In the wake of the outcry over this disastrous case, the Thai government reacted by passing laws that completely shut down the previously thriving foreign surrogacy market. In February 2015, it became illegal for a foreign couple to employ the services of a Thai surrogate. Violators face up to 10 years in prison.

The Truth:  Last week, the Family Court of Western Australia issued an epic 274-page opinion in the case surrounding whether even baby Pipah should be permitted to stay with the Farnells. The alternative would be to send her back to the care of her surrogate birth mother in Thailand. Interestingly, the court’s findings of fact paint a very different picture than the one presented by news outlets.

To begin, Chanbua was too young to meet the Thai surrogacy agencies’ requirements. She falsified her identification, presenting to the agency a picture ID from an older relative. Then, once the pregnancy was underway, it appears that the Farnells and the surrogate were receiving very different information throughout the process. Upon learning that one of the twins had Down Syndrome, Chanbua was told that the Farnells wanted her to abort the child. The court, however, found that the Farnells never made such a request.

Later, upon the birth of the children, Chunbua herself was intent on keeping Baby Gammy. The court found that Chanbua had consulted a Thai fortune teller, who advised her that keeping the baby would bring her good luck. (I am now considering adding an anti-fortune-teller clause to all future surrogacy contracts.)

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Health complications after the birth meant that Baby Gammy needed to be hospitalized in Thailand. And civil unrest in the country led the Australian embassy to issue instructions to get out of Thailand immediately. The Farnells thus left with only Baby Pipah (1) because she was the only baby they were allowed to leave with; and (2) they were told that if they pushed further for Baby Gammy, they might lose both their babies.

The court’s factual findings make this case look like a story of a surrogate who turned on the intended parents. This is a far cry from the media’s portrayal of the controversy.

The Child Molester Allegations: On the other hand, it was completely true that Mr. Parnell is a sex offender. He had been released from an Australian prison in 1999, after being charged with over 20 counts of child molestation.

Nevertheless, the court held that there was no evidence that Mr. Farnell had committed any post-release offenses. Moreover, the court held that the risk to Baby Pipah’s well-being was greater if she were removed from her family, as opposed to the risk of Mr. Farnell harming her. Still, the judge’s order prohibits Mr. Farnell from ever being alone with Baby Pipah. (And naturally, Australia’s version of Child Protective Services will be keeping a close eye on the Farnells).

Additionally, the court found that the allegations that the Farnells attempted to access a trust fund set up for Baby Gammy were unfounded.

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Lessons Learned: Of course, lesson number one is that you cannot always believe what you read in the news. But the real issues for surrogacy are on a broader scale. Australia’s illegalization of commercial surrogacy has—aside from what you might think of the Farnells—left legitimate parents whose children were conceived through surrogacy in a legal gray area, without mechanisms to resolve inevitable disputes, and lacking legal rights to their children. Indeed, the case of Baby Gammy remains unresolved, more than two years since his birth.

The distaste for surrogacy generated by cases like this is understandable. Even the Australian judge described the surrogacy in pejorative terms, characterizing it as “when a woman’s body is rented for the benefit of others and where the unit of exchange is measured in the life of a new human being.”

Despite the controversy, a complete ban on surrogacy is not the answer. Indeed, in some sense, that is a key reason this situation arose. Carefully considered and thoughtful regulations—but not outright bans on surrogacy—would more effectively balance legitimate concerns about the flow of surrogacy tourism against the dreams of those desperate to realize their dream of a family.

Ellen TrachmanEllen 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. You can reach her at [email protected].

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