Baby Gammy Case Highlights Pitfalls of Surrogacy in Thailand

Angela Savage is currently conducting research on commercial surrogacy for her PhD in Creative Writing at Monash University. Here, she draws on her reading to reflect on the case of baby Gammy, which has dominated news headlines in recent days.

Image by [miguelb](https://www.flickr.com/photos/mig/), Flickr.

(Image: miguelb / Flickr)

Is commercial surrogacy a form of child trafficking? In her book Being and Being Bought: Prostitution, Surrogacy and the Split Self, Swedish feminist academic Kajsa Ekis Ekman says that is. She has an unlikely ally in Thailand’s military junta, which moved last week to crack down on the country’s unregulated surrogacy industry, threatening to use human trafficking laws to prosecute those who make illegal use of fertility technology.

In Australia, the crackdown is bound to be associated with the now infamous case of baby Gammy, reported in the media here last week. Born to a Thai surrogate who refused to abort the foetus after tests showed he had Down Syndrome, Gammy, now seven months old, was allegedly abandoned by his Australian parents, who took home his healthy twin sister.

In an unregulated industry where both the financial and emotional costs are high, there is considerable scope for exploitation and abuse.

But the circumstances surrounding the case are far from clear cut. And it’s only the latest in a series of incidents that have raised concerns about this controversial industry.

In 2011, Thai police rescued 13 Vietnamese women, seven of them pregnant and two who’d just given birth, from horrific “baby farms” in Bangkok run by Taiwanese nationals. The surrogates, some of whom may have been raped, were confined to compounds and had their passports confiscated in gross violations of their human rights.

The case prompted the then government of Yingluck Shinawatra to draft legislation outlawing surrogacy for commercial purposes in Thailand. However, the country’s broader political crisis, which culminated in a military coup in May this year, meant the bill to regulate assisted reproductive technologies (ART) took a low priority.

Last week, the military government announced a review of the legislation. According to the Thai press, this was a response to reports of Chinese nationals using in vitro fertilisation (IVF) procedures in Thailand for the sex selection of embryos, which is prohibited under Thai law.

More broadly, it appears that commercial surrogacy, which once took place discreetly in specific IVF clinics, has become big business in Thailand, involving a growing number of local and foreign brokerage agencies and, in the process, crossing a line in terms of what is acceptable to Thai sensibilities.

Surrogacy brokers advertise a range of services, including surrogate selection and ‘screening’, sourcing egg donation, liaison with ‘IVF partners’, ante natal care reporting, and assistance with legal and immigration paperwork. Agents may recruit and also house surrogates, and some are known to prevent surrogates and intended parents from having direct contact.

In an unregulated industry where both the financial and emotional costs are high, there is considerable scope for exploitation and abuse.

The circumstances surrounding the birth of baby Gammy provide a case in point. The Thai surrogate mother, Ms Pattaramon Chanbua, is a twenty-one-year-old mother of two other children, the eldest of whom is reported to be six years old. This means Ms Chanbua was pregnant at fifteen, possibly younger, and unlikely to have completed high school. She says she was motivated to become a paid surrogate to help her family pay off debts.

In all likelihood, there would have been a contract between Ms Chanbua and the intending parents from Australia, prepared by an agent, which included clauses outlining the course of action in the event that abnormalities were detected in a foetus. Whether the details of the agreement were accessible to Ms Chanbua is a moot point; when Down Syndrome was detected in the male twin she was carrying, she refused the Australian couple’s request to abort the foetus, saying she was ‘afraid of sin’.

If there is a place for ethical surrogacy between Asia and Australia, it is certainly not within existing arrangements …

Thai Buddhists consider abortion to impede rebirth and contravene prohibitions against the taking of human life. Abortion is illegal in Thailand in all but a few specific circumstances, which does not include detection of Down Syndrome.

After the twins were born, it was alleged the biological parents abandoned boy, taking only his healthy twin sister back with them to Australia.

One detail that leapt out at me as I pored over media reports on the case was that the surrogate and intended parents never met. Ms Chanbua said it was the agent who promised her an additional payment to have twins; who asked to abort the pregnancy; and who, after the babies were born, took the healthy girl twin to the intended parents, leaving the boy behind.

Was it possible the agent had taken advantage of both parties, leading the intending parents to believe the affected foetus had been aborted, at the same time blaming the intending parents for not paying the Thai surrogate extra to deliver twins?

Just as I was speculating that the intended parents may not have even known of baby Gammy’s existence, news came to light that the Australians were told only of the birth of a healthy girl. The father blamed the surrogacy agency – which has since closed down – for the appalling situation.

However, Ms Chanbua has since claimed that both twins were in hospital for a month before the Australian parents took the girl home, and that the father, while aware of the boy, had ‘never touched Gammy at all’.

Further complicating the case are reports today that the father served jail time in 1998 for the indecent assault of a child under 13. This raises questions about the responsibility of the Australian authorities in relation to the conduct of its citizens engaged in international commercial surrogacy arrangements.

If there is a place for ethical surrogacy between Asia and Australia, it is certainly not within existing arrangements; even advocates of surrogacy support reform and regulation. The enactment of legislation currently in draft form would ban commercial surrogacy and third party brokering in Thailand. But a legal framework can only offer so much protection when demand remains high.

It is worth remembering that prostitution is also technically illegal in Thailand.

Theorists like Ekman argue there will never be justice in a system ‘in which wealthy people use poor people as breeders’, and market forces are ‘pivotal to the child’s very existence’. Others argue that while demand from the West continues, women in countries like Thailand and India should be entitled to choose surrogacy as a pathway out of poverty for themselves and their families.

As I reflect on the anguish and injustice that reverberates from the baby Gammy case, I’m reminded of the words of surrogate Offred in Margaret Atwood’s novel, The Handmaid’s Tale:

Maybe none of this is about control. Maybe it isn’t really about who can own whom, who can do what to whom and get away with it, even as far as death… Maybe it’s about who can do what to whom and be forgiven for it. Never tell me it amounts to the same thing.

Portrait of Angela Savage

Angela Savage is an award-winning Melbourne author.