Chaos in commercial surrogacy tourism

For those in the medical tourism industry, the issue of “surrogacy tourism” or commercial surrogacy is not an issue of morality. Whatever one believes, that every woman has the right to motherhood or that women are being commoditized, the truth is that there is a need for surrogacy services and people will take chances with the law in order to have children.

Worldwide, an estimated 6,000 babies were born last year via commercial surrogacy tourism. In Thailand alone, 1,000 babies are born annually to surrogates on behalf of foreign couples and individuals.

Yet seemingly overnight last month, police in Thailand shut down clinics, stopped parents with newborn infants from getting on flights out of the country, and sent some newborns off to orphanages.

Surrogacy services in Thailand have been available to all couples, foreign and domestic, gay or straight, and single men and women. Qualified practitioners have performed unauthorized surrogacy procedures for many years at several clinics, hospitals, and even medical schools.

[See also: Medical tourism and retail clinics: disruptive innovations or opportunity?]

Quite unexpectedly, a birth rights law passed by Thailand’s parliament early this year set off a perfect storm of reaction and response to surrogacy tourism in the country.

The new law, meant to clarify local domestic concerns, unwittingly immediately placed into legal limbo 50 infants newly born of surrogate mothers to Israeli couples. The Israeli embassy in Bangkok believed the law placed new restrictions on the citizenship of the babies and it could no longer grant travel documents to them.

The “Baby Gammy” scandal

Weeks later, an enterprising young journalist came across an online advertisement seeking surrogates, and decided to do a news report on what it might be like to hire out as a surrogate mother. By chance, she interviewed the surrogate mother of twins born in surrogacy to an Australian couple. One of the twin infants suffered from Down’s syndrome, and the surrogate mother claimed that the couple had rejected the infant and only took home to Australia the twin’s healthy sister.

While the surrogate was willing to care for the boy, “Baby Gammy” as he became known, she said the couple refused to pay for the boy’s healthcare expenses. In fact, she claimed, the parents wanted her to abort the baby – against the law in this Buddhist country where all life is sacred.

The reporter’s story sparked a national outcry and pleas of help for the surrogate who later said she kept the baby because she feared he would end up in a state institution.

Meanwhile, Australian news media raised questions about the fitness of the father after finding court records showing that he was convicted and imprisoned for 22 counts of child sexual abuse in the 1990s.

Commercial surrogacy chaos

In the fallout from the “Baby Gammy” kerfuffle, Australian and American parents and their infants were refused exit at the airport by Thai passport authorities, and more than a dozen Australian and American couples were stranded in Bangkok unable to complete travel documents that would allow their newly born or about-to-be-born surrogate infants to take them home to their new countries.

Babies were being plucked from the care of surrogates and nannies and taken to a state orphanage outside of Bangkok, fertility specialists are scrambling to get their names removed from medical tourism websites and Thai surrogates have gone into hiding and stopped going for pre-natal checkups fearing they will be penalized by the new law.

Foreign diplomats appealed to the military junta to consider the rights of infants as the police shut down fertility clinics, and hospitals refused to allow surrogate mothers to give birth while doctors are being summoned for questioning.

Lawyers and politicians have been arguing the legalities of surrogacy and have hurriedly written a new law for consideration by the military junta, but parents are still sitting in Thai hotel rooms and rental apartments waiting for permission to take their new babies out of Thailand.

Is anyone breaking Thai law?

No one has broken the law, because there was, and still is, no law. Yet.

This month a new law regarding the practice of surrogacy has been presented to the military junta for consideration. Reports indicate this law will be passed, and will likely come into effect within six months. The new law tackles both the rights of parents, babies and surrogates as well as stomping out “agents.”

Meanwhile, surrogacy tourism has all but shut down in Thailand. Existing contracts with confirmed pregnant surrogates are expected to be fulfilled, with all concerned expressing the desire to ensure both the babies’ and the parents’ legal rights. Some doctors quietly add they fully expect the business of surrogacy to start up again once the current situation calms down.

In Thailand, some ten years ago, a law had been proposed to parliament but had not been enacted. When, in 2011, Thai doctors were involved in a case of Vietnamese women being used as surrogates in Thailand on behalf of a Taiwan agency, the law was discussed again.

The Medical Council of Thailand had certain strictures against commercial surrogacy but these were ethical and moral considerations, not legal ones. Doctors deemed to have violated MCT rules could be held accountable to the point of having their licenses taken away – an extremely harsh consequence that is reluctantly and seldom dispensed. The Thai doctors involved in the Vietnam case are still under investigation by the MCT.

The costs of commercial surrogacy

Surrogacy tourism, like other medical travel services, is commonly promoted to be a “fraction of the cost” of commercial surrogacy in the U.S. Commercial surrogacy does not necessarily cost the oft-quoted $70,000-$150,000. A bonus of Obamacare gives a surrogate who in the past may not have had medical insurance the chance to sign with one of the state health insurance exchanges, minimizing the medical portion of the cost. With this in mind, cost of U.S. surrogacy has been quoted as low as $38,000.

In Canada and the U.S., more importance is given to legal contracts, screening of the surrogate for her physical and emotional health and her criminal background. Life insurance may be provided to the surrogate. The agency often plays a more direct role in participating in arrangements and services and charges for its participation. The total cost reflects these added services, legal and professional fees.

Surrogacy tourism in Georgia may be as little as US$16,000, in India $28,000 and in Mexico $40,000. This covers the three main costs of surrogacy, medical expenses including fertility treatments, payment to the surrogate, and agency fees. How much one pays is largely determined by the chosen medical destination.

In Thailand, the cost of surrogate services by one respected Australian agent is less than US$45,000 with a built-in fee for services of about $3,500. However, another agency operating in Thailand charges $60,000-80,000 even though its costs are the same as the Australian agent because they both use the same clinic and doctor. Reportedly, this agency did not pay its surrogates the full amount that the contracting parents had agreed and kept the money itself.

In part 2 of this article, Julie Munro will address the legal and financial aspects of commercial surrogacy tourism in greater detail.