When Thailand’s parliament passed a law banning most forms of surrogacy late last month, its main motivations were clear. Last year, two major scandals brought to a head long-standing concerns that Thailand wasn’t doing enough to protect the women hired to bear children for other people and the children born through surrogacy. Last July, Thai media reported that an Australian couple had hired a Thai surrogate to bear twins but abandoned one of the babies — a boy — because he had Down syndrome and a congenital heart problem. International media quickly confirmed the couple had left “Baby Gammy” with his surrogate mother and took his healthy sister back to Australia, sparking widespread outrage.
The second scandal materialized less than a month later, when reports emerged that a 24-year-old Japanese man, Mitsutoki Shigeta, had paid at least 11 women in Thailand through multiple surrogacy agencies to deliver at least 16 babies. His goal, he told the worried staff of one agency, was to father 10 children per year well into old age. The director of the concerned agency reported that Shigeta said he hoped to build a loyal base of children to vote him into office in Japan; others suspected he intended to traffic them. A Thai orphanage is now caring for the babies. Shigeta, his whereabouts unknown, is suing to get them back.
These extreme cases and the Thai government’s response suggest the many legal and ethical gray areas around international surrogacy, a process that requires balancing the hopes of parents who couldn’t otherwise have biological children with concerns about exploiting impoverished surrogate mothers and the children they bear.
Gestational surrogacy, which involves implanting an egg fertilized through in vitro fertilization in a surrogate, has only been possible since the late 1970s. Different countries have responded with dramatically different policies governing the circumstances under which the procedure is legal; the rights and obligations of prospective parents, surrogates, and children; the surrogate child’s nationality; and who is the child’s legal parent.
Most people seeking surrogacy abroad come from China, Australia, and the many European countries that have banned or severely restricted the practice. That causes frequent complications, as when the French Embassy in Ukraine (where surrogacy is legal) refused to grant citizenship or travel documents to the surrogate twins of a couple from France (where surrogacy is illegal), leaving them in indefinite limbo. With no global framework like the Hague Convention on Intercountry Adoption governing surrogacy, individual countries’ restrictions have led to a whack-a-mole approach to regulating the industry.
“Cross-border surrogacy is very difficult to regulate and police,” said Sam Everingham, founder of Families Through Surrogacy, an organization that helps prospective parents navigate surrogacy’s ins and outs. “The surrogacy industry players are aware of this and constantly stay one step ahead of the regulatory environment. Large surrogacy operators tend to target countries with weaker governments, a lack of regulation, and absence of law surrounding surrogacy arrangements.”
That increases the risk of exploitation. In 2011, Thai authorities shut down a Taiwanese operation in Bangkok that appeared to have been forcing several Vietnamese women to bear children for other people. Last year, a surrogate mother who carried one of Shigeta’s children told the Associated Press that the surrogacy agency, New Life, told her the baby was for a married couple, rather than for the single young man whom she met only after giving birth to his child. New Life denied the surrogate mother’s claim and said it stopped working with Shigeta when he requested a third surrogate, at which point the staff reported its concerns to Interpol. Interpol later said it hadn’t received the notice.
Organizations like New Life say they don’t exploit but only help poor women. “We think that both the parties are helping each other, with the parents helping the surrogate mothers to fulfill their dreams,” said Sophie Ukleba, a patient coordinator at New Life’s headquarters in Tbilisi, Georgia, another country that permits surrogacy. New Life runs branches in countries from India to Ukraine to Mexico, and depending on the location, Ukleba said, surrogates receive $10,000 to $15,000 out of the $30,000 to $38,000 fee paid to New Life per surrogacy. The remainder goes to medical costs and agency fees. In Georgia, one surrogacy fee could allow a woman to buy a one-room flat outside the capital — and better provide for her own children, according to Ukleba. “We’ve not really seen a surrogate mother say they’ve been used,” she said.
New Life monitors surrogates’ physical and mental health during their pregnancies and for a few months after they give birth, she added. The agency requires that surrogate mothers “have a previous experience with pregnancy” and be between 25 and 35 years old. It also places upper and lower age limits on prospective parents.
Thailand’s new law, however, imposes much stricter limits. The legislation, which awaits royal approval before likely coming into effect, allows surrogacy only for heterosexual couples where at least one partner is Thai. They must have been married for at least three years and be able to prove they and their relatives are infertile. The surrogate must be Thai and over 25 years old, and the arrangement must be “altruistic” rather than “commercial,” meaning the surrogate may not be paid other than for related medical expenses. The law also bans agencies arranging or advertising surrogate services and calls for up to 10 years in prison for anyone involved in commercial surrogacy.
Some worry the law might drive the market underground. Others say it’s just overkill. Cathie Sanchez, a consultant with the Fertility Choices Group seAsia, which offers surrogacy services, told Foreign Policy that surrogacy in Thailand clearly needs better regulation of agencies and clinics. But the new law “is obviously an overreaction by the military government to the events last year and not really justified,” she said, referring to the recent scandals that have rocked the Thai surrogacy industry.
The new restrictions hit same-sex couples and prospective single parents especially hard. Of the approximately 6,000 babies delivered via commercial overseas surrogacy in each of the past few years, hundreds were born in Thailand. Last year, Sanchez’s Fertility Choices Group estimated that about 35 percent of its clients there were gay men. While commercial surrogacy is legal in India, another major surrogacy destination, a government memo in late 2012 excluded non-married and same-sex couples from eligibility. Remaining legal options for these groups are “very limited,” with Mexico, the United States, and now Nepal as the main options left, said New Life’s Ukleba.
Given the restrictions in Thailand, Sanchez said she’s now mainly seeing clients go to India, Europe, and U.S. states like California. Costs in the United States were once prohibitive for many prospective parents, forcing them to seek riskier options elsewhere, but U.S. fees have fallen significantly in the past year, she said. (Policies toward surrogacy vary between U.S. states, as between countries. Some allow it, some ban it, and others restrict it based on factors such as prospective parents’ marital status and orientation.)
Other common destinations for legal surrogacy include Russia, Greece, Mexico, and Nepal. But Sanchez cautioned against Mexico for safety reasons and Nepal due to surrogacy’s tenuous legal status there. Russia recently has been considering limiting or banning the practice as part of its swing toward conservative social policies. And amid fighting in Ukraine, that country’s until-recently-booming surrogacy industry has experienced a major slowdown, especially in the east, said Dmytro Pugach of the Kiev-based Ukrainian Surrogates agency.
Since the Thai ban, New Life is focusing on expanding its services in Nepal and potentially Cambodia, where surrogacy is “kind of not regulated at the moment,” Ukleba said. Cambodia has no laws on surrogacy. Nepal recently allowed surrogacy services for foreigners but has yet to clarify many legal issues around the practice, including the issuance of birth certificates, said Everingham of Families Through Surrogacy. Nepali women are not allowed to be surrogates, so Indian women have been crossing into Nepal for that purpose, he said.
When asked about the potential for exploitation in such unregulated environments, Ukleba said New Life staff currently “don’t really see any kind of threats” because even without government regulations, the agency has its own policies to ensure all parties are treated fairly. “We always try our best to make sure we have the same standards in each and every country where we are based,” she said. But she acknowledged that due to patient confidentiality, New Life couldn’t coordinate with other agencies to prevent another person like Shigeta from contracting several surrogates at once.
Asked whether New Life had learned anything from the recent Thai scandals, Ukleba said the agency is particularly alert to couples who already have several children but are seeking more. The agency recently turned away a couple that had eight children and was looking for a surrogate, she said. New Life can always turn prospective parents away if it feels “something is not right,” she added.
But even when something isn’t actively wrong, Everingham said, “cross-border surrogacy is a far-from-an-ideal means to parenthood, given the immense pressure it places on intended parents financially and emotionally.”
He said it would be better for countries in Europe and elsewhere to remove domestic restrictions so that hopeful parents could have access to well-regulated surrogacy services at home. Still, with many European bans firmly in place since the 1990s or early 2000s and China ramping up enforcement of its ban since 2009, it looks like things are, if anything, moving in the other direction.
Photo credit: SAM PANTHAKY/AFP/Getty Images