The XX Factor

Surrogacy Is a Mess

Thai surrogate mother Pattaramon Chanbua during an interview at the Samitivej hospital.

Photo by Nicolas Asfouri/AFP/Getty Images

On Dec. 23, a pair of fraternal twins were born to a Thai surrogate named Pattaramon Chanbua. The boy was born with Down syndrome and a congenital heart defect, according to the Associated Press. The girl was born healthy. Chanbua says the biological parents, Australian nationals, knew about the boy’s genetic abnormalities when the twins were in utero and wanted Chanbua, a 21-year-old food vendor, to abort. She refused. After the children were born, the Australians took their daughter home, reportedly without paying Chanbua the full fee they had promised. They also left Chanbua with their biological son. She named him Gammy. (The Australian couple is now denying that they abandoned Gammy, and, to make matters messier, the Australian press reports that the father was jailed for three years in the 1990s for molesting two children.)

Though there are additional thorny legal issues involved in this case because Thailand’s rapidly growing surrogacy is totally unregulated, it reminded me of a situation that happened in the United States last year. A woman named Crystal Kelley was carrying a baby for a Connecticut couple. The surrogacy contract she signed, according to CNN, said that Kelley would have an “abortion in case of severe fetus abnormality.” The fetus was abnormal, Kelley refused to abort, and then she fled to Michigan when she was seven months pregnant. In Michigan—unlike Connecticut—the law doesn’t recognize surrogacy contracts, so the person who gives birth has her name on the birth certificate. Kelley ended up giving the baby up for adoption, and the biological parents struck a deal with the adopted parents and got visitation rights.  

Surrogacy is a legal minefield. And I haven’t even mentioned citizenship issues yet: There are somewhere between 50 and 65 Israeli babies born to Thai surrogates who cannot leave Thailand because the Israeli government won’t give the infants citizenship, for example. I asked Joan Heifetz Hollinger, an affiliate of Berkeley Law School’s Center for Reproductive Rights and Justice, if we are going to keep seeing these legal messes for decades to come.

In a word, yes. “It is a mess, and it isn’t just the question of a child who’s born with some sort of defect or abnormality,” Heifetz Hollinger told me over the phone. There are endless other questions that what few laws exist internationally don’t cover. “There are issues across the board with regard to health care of the surrogate and whether the surrogate can or should be required to undergo tests, including fetal diagnostic test or an amnio.” If a surrogate decides to keep a baby against the commissioning parents’ wishes, are they responsible for that baby? If the surrogate raises the child, can she sue the biological father for child support?

It’s a particular mess in Thailand right now, Heifetz Hollinger says, because it’s currently a boom country for surrogacy, but, in another legal gray area, surrogacy is not explicitly legal or illegal there. (In the case of Chanbua, the Thai Ministry of Public Health is now reportedly saying that by being a surrogate, she violated their human trafficking laws.) A lot of couples who had previously used Indian surrogates are now using Thai surrogates, because some Indian provinces are starting to make restrictive laws around surrogacy, doing things like banning foreign gay couples and single people from using Indian surrogates.

In Thailand, the state recognizes the surrogate as the legal mother, according to the U.S. Embassy (though, again, surrogacy isn’t exactly legal). But the biological father can be listed on the birth certificate as well—only if the surrogate is unmarried. If the surrogate is married, her husband is listed as the father. The biological mother will never be the legal mother, according to Thai law, though she can be listed as the mother on a U.S. Embassy document called a Consular Report of Birth Abroad. Parents can also formally adopt their biological children, per the embassy, but that’s a process that can take months.

There are no easy answers here, only questions, often ones that are so complicated that you could not make them up if you tried. “One of the reasons we have so little consensus in this country or in the world, in terms of legality and the most appropriate ways to regulate [surrogacy], is there’s not consensus in the moral and ethical dimensions,” Heifetz Hollinger says.

Still, Heifetz Hollinger points out that we only hear about the surrogacy situations that get complicated. We don’t hear much at all about the thousands of babies born to surrogates who are treated and paid well for their work of helping an infertile family (you can read one of those stories here). I can understand the emotional desperation of an infertile or same-sex couple that really, really wants children and feels that surrogacy is the only way to get them. But is it worth entering into this potential legal limbo in order to do it?  

Would-be parents in other countries are now coming to the U.S. to use surrogates here, because even though there are still legal difficulties, it’s a lot more of a sure thing in states like California than it is in Thailand (though it’s also more expensive, which is why couples go to places like Thailand and India). As Heifetz Hollinger puts it, “We’re wild, and lots goes on underground here as well, but there is legal gestational surrogacy here, and there are fairly reputable agencies and hospitals that cooperate.”