Recent press reports have highlighted the sad case of Gammy, a seven month old boy suffering from Downs Syndrome and a congenital heart defect, who was born to a Thai surrogate as a result of a surrogacy arrangement with an Australian couple. It has been hard to ascertain the true facts of just what took place between the Australian couple, the surrogacy agency and the surrogate mother, but whatever the facts, it illustrates some serious issues.

  1. It seems certain that the arrangement would not have been legal had it been in Australia. Couples cannot circumvent their domestic law by simply flying abroad and making their own deal.
  2. The role of the surrogacy agency seems extremely murky. It is unclear whether honest information was communicated between the Australian couple and the surrogate mother. The agency appears to have simply been a front to extract a fee. The agency has apparently now disappeared. Again this points to the great dangers of going outside the system to deal with third parties.
  3. In 2012 five Chinese nationals were arrested in Thailand and sentenced to jail for having trafficked fifteen Vietnamese women aged between 19 and 30 years to Thailand to act as surrogates. Again this points to the strong suspicion that the “agency” is simply a front for a criminal enterprise.

The recent military government in Thailand has promulgated new regulations which are meant to be complied with for any surrogacy arrangements in Thailand in the future:

  • The intended parents must be a heterosexual married couple.
  • The marriage must be medically infertile.
  • The surrogate must be a blood relative of one of the intended parents.
  • The surrogacy arrangement cannot be commercial.
  • There can be no gender selection of the embryo implanted in the surrogate mother.
  • Prior permission to leave Thailand with the child must be obtained from the Ministry of Foreign Affairs.

These regulations will effectively rule out foreign surrogacy arrangements. Unless there is a blood relation in Thailand it is impossible to see how for any practical purposes these regulations amount to anything other than a comprehensive ban on the practice.

It is time that the international community negotiated a uniform set of rules. Much of the world has been able to cooperate to join the Hague Convention on the International Aspects of Child Abduction. Many countries have established comprehensive rules on international adoptions. It has become urgent to put these on a similar footing worldwide to have clear consistent rules on international surrogacy and adoption.

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