by Agata Ferretti

In Thailand, a homosexual couple is embroiled in a legal battle with the Thai government. The couple wants to leave the country with their surrogate baby daughter, because the surrogate mother, who is not biologically related to the child, is refusing to give the couple the child because she claims that she had not been informed that the couple was gay.

In January, this child had been entrusted to the gay couple (Gordon Lake, an American, and his Spanish husband, Manuel). Six months later, the surrogate refused to sign documents to allow the infant to get a passport. She says that she wanted to be a surrogate for an ‘ordinary family’ and a homosexual couple does not fit her idea of ordinary family. Thus, she is worried for the baby named Carmen’s wellbeing.

The couple, who already has a 23-month-old son Álvaro, born in India by a surrogate, claims they were clear about their homosexuality with the agency they used and cannot explain why the surrogate did not know they were gay. The agency they used was New Life, which has branches in eight countries.

While Carmen – who is the biological daughter of Gordon and an anonymous egg donor – was in the womb, the military overthrew the Thai government. The problem and the legal dispute in Carmen’s case has been high-profile since it was shortly followed by a series of surrogacy scandals that led to a ban on the industry.

The first case involving a 24-year-old Japanese businessman who had fathered 16 children, mostly through Thai surrogates, opened questions concerning a baby factory, with aspects related to human trafficking and the exploitation of children. The second, and most shocking case, was about a 6-month-old baby boy, Gammy, with Down syndrome born to a Thai surrogate mother, who his biological parents allegedly left with the surrogate, even though they took his twin sister back to Australia.

After that, in February, Thailand’s parliament passed legislation banning commercial surrogacy, putting a halt on foreign couples, and same-sex couple seeking to have children through Thai surrogate mothers. These cases have raised some issues about parenting and surrogate mothers in Thailand, since the nature of commercial surrogacy has been largely unregulated.

First, not having precise regulation complicates the process of informed consent, leading to misunderstandings and misinterpretations that are hard to solve and often exasperated by what is lost in translation, as in the above case of Carmen. Secondly, although in Thailand previous laws existed already making surrogacy illegal – unless the parents were medically unable to bear a child – the surrogate could not be paid. But those rules had long been ignored, and surrogacy boomed there, fueled by large sums of foreign cash paid to poor Thai women. For instance, the cost of a baby by surrogate in Thailand is less than $50,000, compared to about $150,000 in the US.

Think, for example, that it is estimated that as many as 2,000 children a year are born to surrogate mothers – mostly overseas – before being handed over to British parents. Plus, in most cases the birth mother is not the genetic mother but carries a fertilized embryo to full term for the parents: who the legal parents are in these situations can be hard to define. Furthermore, the fact that a large number of surrogate-born children are unregistered may be creating a ‘legal time bomb’ of sorts.

However, when wondering about how to regulate the complicated market of surrogate mothers, we should keep in mind the best interest of the child. Family court judge Lucy Theis said, ““The best interests of the child born to these arrangements is to have legal certainty and clarity. If no order is made, there is the psychological impact of [subsequently] discovering that the mother is not their [birth] mother. And there’s practical issues in terms of inheritance and other financial matters. The court’s paramount consideration is the child’s long-term welfare needs.”

To read the full Guardian article, click here.