Family Law

One Country Protests For Access To Surrogacy, Another Arrests Surrogates

This area of the law is still quickly evolving in many sharply disparate directions throughout the world.

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Last week, I wrote about the 60,000 Israelis who gathered in Rabin Square in Tel Aviv, among other places in Israel, to protest the lack of LGBTQ access to surrogacy for Israeli families. For those who read my column, you are likely familiar with the wide range of treatment of surrogacy around the world. So while the Israeli public is clearly mobilized on this issue to fight discrimination, in other parts of the world, countries are doing much more to stifle surrogacy options. Some countries go so far as to criminalize the practice.

Arresting (Or Rescuing) Pregnant Women?

Multiple news sources claims that, earlier this summer, the Cambodian government arrested 33 pregnant Cambodian women for acting as surrogates (i.e., carrying someone else’s genetic child for them), and charged them with human trafficking. To be fair, other news sources say that while 33 pregnant women were indeed found during a police raid and believed to be part of a surrogacy operation, they were not arrested, but instead “rescued” by authorities. And that only five people — all of them non-pregnant people — were in fact arrested in this situation. These sources say that the five individuals who were arrested were ringleaders of an illegal surrogacy and human trafficking operation.

Given the fairly specific quotes in the Phnom Penh Post of a government official saying “it was the opinion of the court that the arrested women intended to hand over their children in exchange for money” and referring to 32 arrested surrogates, I am guessing that the surrogates (all 32 or 33 of them) were, indeed, initially arrested. And then, perhaps for PR or other reasons, altered to “victim” rather than “criminal” status. At least for now.

If the surrogates themselves are being arrested or charged with crimes, that would be a new and unfortunate development in the crackdown on surrogacy. Although there are multiple arguments against surrogacy, a common one is the assertion that it exploits women. There is a real concern in certain countries that poor women are being economically coerced to use their bodies as surrogates. If this is the situation — and 33 pregnant women living in the same house does point in that direction! — the surrogates are among the victims. Charging the victims with crimes doesn’t seem like the right move.

These are, of course, not the first arrests or charges for Cambodia. In a well-publicized 2016 case, an Australian woman was arrested and tried for running a surrogacy operation. She was sentenced to 18 months in prison, and is currently serving that time.

Is there a Trend?

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Taken as a whole, the data points are confusing. In the U.S., of the handful of jurisdictions that had laws banning surrogacy arrangements, three have flipped that stance in the last 18 months: Washington, D.C., Washington State, and New Jersey. These states enacted new statutes permitting regulated surrogacy within their borders. That seems like a pretty positive pro-surrogacy trend toward accepting and supporting surrogacy, with guidelines and regulations. At least in the United States.

However, much of the rest of the world has been headed in the other direction. India, Thailand, Nepal, Mexico, and, of course, Cambodia, all shut down surrogacy for foreigners. Turkey has taken its anti-surrogacy stance a step further, with a proposed law that affects intended parents seeking to use a surrogate, even if that arrangement does not take place in Turkey. Those individuals could face criminal penalties, including imprisonment. These data points indicate a very negative trend.

In more lukewarm waters, much of Europe continues to struggle with, and prohibit surrogacy within its borders. However, multiple cases in Europe have ended with intended parents in surrogacy arrangements (generally undergone in another country, such as the United States or Russia) achieving recognition as the legal parents of their child in their home European country. One winning argument has been that it is the right of the child to have a legally recognized relationship with his or her parents.

One takeaway is that this area of the law is still quickly evolving in many sharply disparate directions throughout the world. For those delving into the legal waters of surrogacy, local counsel with expertise in assisted reproductive technology law is key. And while we don’t currently appear headed in that direction, we can hope that the future will bring more uniformity internationally in a manner supportive of hopeful families and their children.

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Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at [email protected].

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