Surrogacy In Asia Is A Hot Mess
This increasingly complex cross-border industry lacks legal protections for everyone involved.
The desire to have a child can be all-consuming. While surrogacy presents a path forward for those unable to conceive and carry a child to birth the old-fashioned way, the costs of the process continue to rise. Unfortunately, many parents-to-be don’t have six figures of disposable cash, ready to spend on a surrogacy journey in the United States. That’s why in the past decade, many poorer, Asian countries have presented themselves as a viable, affordable alternatives for intended parents.
With lower costs, however, come added risks. And for readers of this column, you know that some peoples’ dreams have turned to nightmares as country after country in Asia changes its laws. Those countries have gone from complete non-regulation of surrogacy to outright prohibitions, and in many cases, even imposing criminal consequences. Still, the shifting legal landscape hasn’t eliminated surrogacy altogether. In some cases, it has led to an increasingly complex cross-border industry that lacks legal protections for everyone involved. (For a longer and well-stated description of events leading up to the current situation, see This Week in Asia’s recent article.)
Stuck Babies. Previously I discussed the “Baby Gammy” case, where an Australian couple left one of their surrogate-born twins — born with Down’s syndrome — in Thailand. Thailand swiftly cracked down on surrogacy after that incident. And because India and Nepal also enacted new restrictions, the hot new destination for surrogacy in 2016 became Cambodia.
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But that didn’t last either. In October 2016, Cambodia’s Health Ministry declared a ban on all surrogacy until the country’s legislature could address it. In conjunction with the Health Ministry’s declaration, the government also stopped issuing visas that permitted surrogate-born babies to leave the country. It was estimated that as many as 50 surrogate-born babies — born to non-Cambodian intended parents — were stuck in Cambodia.
In April 2017, the Cambodian Prime Minister finally announced an “exit strategy” for these parents. They are required to identify themselves to the government, and the Cambodian government has implied that they may be able to leave the country through neighboring Vietnam. Given the uncertain legal consequences, however, few intended parents have voluntarily come forward to attempt exit in this manner.
Imprisoned Brokers. As part of its crackdown on surrogacy, Cambodia even arrested surrogate “brokers,” who often matched intended parents with surrogates. One of those brokers was an Australian nurse named Tammy Davis-Charles. Davis-Charles was imprisoned for the offense of “human trafficking,” and allegedly falsifying documents pertaining to surrogacy in violation of the law. Davis-Charles has sat in a Cambodian prison for over six months. A ruling was expected mid-May, but it was then postponed indefinitely. After a brief release, Davis-Charles was sent back to prison on May 18 to endure what has been characterized as a living hell. In short, this ain’t no Bridget Jones Diary 2.
Sperm Smuggling. With limited options left in Asia, the hottest new country for surrogacy is Laos. It has everything. Clinics, potential surrogates, brokers previously operating in other Asian countries, smuggled sperm. Wait, smuggled sperm? It’s that thing where a man was arrested in Thailand attempting to smuggle vials of sperm to Laos for delivery to a fertility clinic. (If you couldn’t tell, I was channeling my inner Stefon from Saturday Night Live above.)
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Forget drugs! Genetic material is the new hot commodity of the black market. The man was allegedly on his thirteenth sperm-smuggling journey!
Cross-Border Law Skirting. Things continue to get complicated. This Week in Asia proclaims, “It is now not uncommon for a couple in one country to pay a surrogate in a second, via an agency in a third, for a child that will be born in a fourth, all in an effort to comply with the letter of the law in the various jurisdictions.” Depending on how the particular ban in any given country is worded — i.e., it may focus on the broker, the medical professional, or the citizenship of the surrogate — creative cross-border solutions are sometimes possible. And the legal patchwork appears to be making for some creative arrangements.
Quoting the wise words of Dr. Ian Malcom, “I’m simply saying that life, uh… finds a way.” If intended parents have the means, it should be a no brainer to come to an established jurisdiction like the United States. But for others, these complicated deals are still cheaper for now. Nevertheless, if further crackdowns occur, these arrangements will be both uncertain and even criminally dangerous for all involved.
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 babies@abovethelaw.com.
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