Cross-border surrogacy: the case of Baby Gammy highlights the need for global agreement on protections for all parties

Abstract

The case of Baby Gammy has made international news (1Topping A, Foster B. International surrogacy laws in the spotlight amid row over baby Gammy. The Guardian, August 4, 2014. Available from: http://www.theguardian.com/world/2014/aug/04/global-surrogacy-laws-debate-baby-gammy-thailand/. Accessed August 7, 2014.Google Scholar, 2BBC News Asia. Thai surrogate baby Gammy: Australian parents contacted. Available from: http://www.bbc.com/news/world-asia-28686114. Accessed August 8, 2014.Google Scholar). To summarize information from the news reports, a couple from Western Australia, 56-year-old David John Farnell and his wife Wendy, used a broker in Thailand to engage a woman as a gestational carrier. Reports have not specified whether Ms. Farnell contributed the oocyte or cited a reason she could not carry a pregnancy. The gestational carrier, a 21-year-old food vendor named Pattharamon Janbua, wanted to pay off family debts and educate her 2 young children. She became pregnant with twins, but at 4 months, the male twin was found to have Down's Syndrome, and the clinic asked Ms. Janbua to abort the pregnancy—at 7 months of gestation, by some reports. She refused, citing her Buddhist beliefs. She gave birth 2 months prematurely, and the twins were 6 months old when the story came to the attention of the news media. The intended parents had meanwhile taken the healthy, female twin back to Australia, leaving Gammy, the critically ill, male twin with Ms. Janbua, who said she would raise him as her own.Ms. Janbua said that she was not paid the full fee owed by the surrogacy brokering agency and could not afford medical bills to treat a cardiac defect and lung infection in the male baby. She also stated that in Thailand, after the birth, Mr. Farnell provided milk for the girl but had no interest in holding the boy or providing for him. Subsequently, more than $200,000 was raised via the Internet to pay for Gammy's medical expenses. At first, the intended parents claimed they did not know a twin boy had been conceived or born. Then they stated that they were told the baby was dying and Ms. Janbua wanted to give him a full Thai funeral. They also said they had to leave Thailand with their infant girl because of fears that they would be caught in conflict because of the military coup taking place at that time.As international outrage mounted, it came to light that Gammy's genetic father had been in prison twice, convicted of a total of more than 20 counts of child molestation that occurred over a 10-year period. His wife, whom he met on a Chinese Internet site that brokers international marriages, said she knew of his criminal record. The couple married in 2004. Her age at the time has not been reported in the media, but international marriage brokering sites have often been associated with human trafficking and domestic abuse of women. With concern over the potential for sexual abuse of the girl twin, child protective officers went to the couple's house. They were unable to locate the couple initially, but the local humane society confiscated the family dog, who had been abandoned in the yard for 3 days without food.The new Thai military government is rushing to change the country's laws to ban commercial surrogacy and establish criminal penalties for engaging in or arranging the practice (2BBC News Asia. Thai surrogate baby Gammy: Australian parents contacted. Available from: http://www.bbc.com/news/world-asia-28686114. Accessed August 8, 2014.Google Scholar). Police have raided the clinic that arranged for this birth and have threatened to prosecute the owner and physician. This legal change would leave in limbo at least 60 babies created for gay couples from Israel (who were already having trouble securing Israeli citizenship for their children); 9 babies apparently fathered with surrogate mothers by a Japanese millionaire who allegedly wants a generation of children to run his business in the future; and many other ongoing pregnancies using Thai surrogate mothers or gestational carriers (2BBC News Asia. Thai surrogate baby Gammy: Australian parents contacted. Available from: http://www.bbc.com/news/world-asia-28686114. Accessed August 8, 2014.Google Scholar). In addition, Thai clinics had recently been doing a thriving business with couples from mainland China, who would arrive with their own Chinese surrogate. Once a pregnancy occurred, all returned to China where the birth certificate could list the names of the intended father and mother (3Johnson I, Li C. China experiences a booming underground market in surrogate motherhood. New York Times, August 2, 2014. Available from: http://www.geneticsandsociety.org/article.php?id=7955&&printsafe=1/. Accessed August 7, 2014.Google Scholar).In Israel, most of Europe, and many US states, commercial surrogacy is illegal (1Topping A, Foster B. International surrogacy laws in the spotlight amid row over baby Gammy. The Guardian, August 4, 2014. Available from: http://www.theguardian.com/world/2014/aug/04/global-surrogacy-laws-debate-baby-gammy-thailand/. Accessed August 7, 2014.Google Scholar, 2BBC News Asia. Thai surrogate baby Gammy: Australian parents contacted. Available from: http://www.bbc.com/news/world-asia-28686114. Accessed August 8, 2014.Google Scholar, 4Rodino IS, Goedeke S, Nowoweiski S. Motivations and experiences of patients seeking cross border reproductive care: the Australian and New Zealand context. Fertil Steril 2014. 10.1016/j.fertnstert.2014.07.1252.Google Scholar). Some countries allow a woman motivated by altruism to carry such a pregnancy, without payment for her services. In addition, most countries limit the ability of same-sex couples or unmarried individuals to access surrogacy. Commercial surrogacy agreements are illegal in Australia. Three Australian states, although not Western Australia where the Farnells reside, have criminal penalties for couples who arrange a commercial contract for surrogacy anywhere.Thailand, along with India, Russia, Georgia, and Ukraine, have collected hundreds of millions of dollars annually in recent years for cross-border, commercial surrogacy as well as other assisted reproductive technology (ART) arrangements (5Engel M. Cross-border surrogacy: time for a convention?.in: Boele-Woelki K. Dethloff N. Gephert W. Family law and culture in Europe: developments, challenges, and opportunities. European Family Law. vol. 35. Intersentia Ltd, Cambridge, UK2014: 199-216Google Scholar). Contracts for commercial surrogacy are legal in 19 US states. International patients are common in the United States, but costs for a birth using commercial surrogacy range from $100,000 to $250,000, compared with $35,000 to $100,000 in other nations. In addition, US law offers some protection to the woman who carries the pregnancy. In India, gestational carriers are often isolated from their families in dormitories during the pregnancy, with daily visits from counselors who remind them that the baby is not theirs to keep. Surrogacy contracts are enforced by the courts if a custody dispute occurs (1Topping A, Foster B. International surrogacy laws in the spotlight amid row over baby Gammy. The Guardian, August 4, 2014. Available from: http://www.theguardian.com/world/2014/aug/04/global-surrogacy-laws-debate-baby-gammy-thailand/. Accessed August 7, 2014.Google Scholar). Reform legislation has been proposed recently in India, mainly restricting surrogacy arrangements to heterosexual couples living in a country where cross-border surrogacy is legal.As a psychologist who worked for years with donors and patients participating in ART, I often reflected that any fertile woman can get pregnant and raise her child as she pleases, unless someone presents evidence of abuse or neglect. However, once a woman, intended father, or couple has trouble conceiving a child or carrying a pregnancy, they not only need medical intervention, but also may have to pass a screening of their parental “fitness” and mental health. Yet, given the emotional and legal pitfalls of third-party reproduction, some scrutiny seems justifiable to ensure truly informed consent and to protect the well-being of all participants—donors and recipients of gametes, gestational carriers, and offspring.Cross-border reproductive services typically do not include such protections. Indeed, a debate is ongoing over the ethics of allowing a woman to earn as much as triple her usual yearly salary if she is willing to be a gestational carrier. Is this empowerment of third-world women who want a better life for their children and husband, or exploitation and commodification of impoverished women as wombs for rent? It is no surprise that third-world nations that have become centers for commercial assisted reproduction are also known for human trafficking and domestic abuse of women, especially in poor, rural areas.The report in this issue by Rodino et al. (4Rodino IS, Goedeke S, Nowoweiski S. Motivations and experiences of patients seeking cross border reproductive care: the Australian and New Zealand context. Fertil Steril 2014. 10.1016/j.fertnstert.2014.07.1252.Google Scholar), researchers from Australia and New Zealand, makes several relevant points. They analyzed anonymous questionnaires from 137 residents of Australia and New Zealand, recruited from Internet sites offering forums or information on cross-border reproductive services. Eighty respondents had considered such arrangements, 57 who had actually used cross-border ART. Results demonstrate that local laws prohibiting various types of ART, such as commercial surrogacy or gender selection for family balancing, or statutes restricting access to ART to only conventional, heterosexual couples, do not necessarily deter people from pursuing their dream of having a child. Those with the money and resources can go abroad and avoid long waiting lists, legal limitations, and nosy health professionals.It was striking that a majority of respondents rated cross-border reproductive services as medically sound (91.2%) and safe (89.4%), as well as reasonable in cost (85.7%). However, of the 57 who pursued treatment, only 57.9% felt their emotional needs had been satisfied. A mere third said that counseling was offered by the offshore clinic (31.5%) or had any type of legal advice (32.6%). Often, such advice took the form of counseling by clinic staff rather than a consultation with an expert attorney. In a global economy, an international approach to setting standards, similar to the 1993 Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption, may be the best chance to achieve the goals of informed decision making and protection for all parties involved in third-party reproduction. The lucrative market for “infertility tourism” will remain a barrier, however, to getting nations to sign on to such a treaty (5Engel M. Cross-border surrogacy: time for a convention?.in: Boele-Woelki K. Dethloff N. Gephert W. Family law and culture in Europe: developments, challenges, and opportunities. European Family Law. vol. 35. Intersentia Ltd, Cambridge, UK2014: 199-216Google Scholar). The case of Baby Gammy has made international news (1Topping A, Foster B. International surrogacy laws in the spotlight amid row over baby Gammy. The Guardian, August 4, 2014. Available from: http://www.theguardian.com/world/2014/aug/04/global-surrogacy-laws-debate-baby-gammy-thailand/. Accessed August 7, 2014.Google Scholar, 2BBC News Asia. Thai surrogate baby Gammy: Australian parents contacted. Available from: http://www.bbc.com/news/world-asia-28686114. Accessed August 8, 2014.Google Scholar). To summarize information from the news reports, a couple from Western Australia, 56-year-old David John Farnell and his wife Wendy, used a broker in Thailand to engage a woman as a gestational carrier. Reports have not specified whether Ms. Farnell contributed the oocyte or cited a reason she could not carry a pregnancy. The gestational carrier, a 21-year-old food vendor named Pattharamon Janbua, wanted to pay off family debts and educate her 2 young children. She became pregnant with twins, but at 4 months, the male twin was found to have Down's Syndrome, and the clinic asked Ms. Janbua to abort the pregnancy—at 7 months of gestation, by some reports. She refused, citing her Buddhist beliefs. She gave birth 2 months prematurely, and the twins were 6 months old when the story came to the attention of the news media. The intended parents had meanwhile taken the healthy, female twin back to Australia, leaving Gammy, the critically ill, male twin with Ms. Janbua, who said she would raise him as her own. Ms. Janbua said that she was not paid the full fee owed by the surrogacy brokering agency and could not afford medical bills to treat a cardiac defect and lung infection in the male baby. She also stated that in Thailand, after the birth, Mr. Farnell provided milk for the girl but had no interest in holding the boy or providing for him. Subsequently, more than $200,000 was raised via the Internet to pay for Gammy's medical expenses. At first, the intended parents claimed they did not know a twin boy had been conceived or born. Then they stated that they were told the baby was dying and Ms. Janbua wanted to give him a full Thai funeral. They also said they had to leave Thailand with their infant girl because of fears that they would be caught in conflict because of the military coup taking place at that time. As international outrage mounted, it came to light that Gammy's genetic father had been in prison twice, convicted of a total of more than 20 counts of child molestation that occurred over a 10-year period. His wife, whom he met on a Chinese Internet site that brokers international marriages, said she knew of his criminal record. The couple married in 2004. Her age at the time has not been reported in the media, but international marriage brokering sites have often been associated with human trafficking and domestic abuse of women. With concern over the potential for sexual abuse of the girl twin, child protective officers went to the couple's house. They were unable to locate the couple initially, but the local humane society confiscated the family dog, who had been abandoned in the yard for 3 days without food. The new Thai military government is rushing to change the country's laws to ban commercial surrogacy and establish criminal penalties for engaging in or arranging the practice (2BBC News Asia. Thai surrogate baby Gammy: Australian parents contacted. Available from: http://www.bbc.com/news/world-asia-28686114. Accessed August 8, 2014.Google Scholar). Police have raided the clinic that arranged for this birth and have threatened to prosecute the owner and physician. This legal change would leave in limbo at least 60 babies created for gay couples from Israel (who were already having trouble securing Israeli citizenship for their children); 9 babies apparently fathered with surrogate mothers by a Japanese millionaire who allegedly wants a generation of children to run his business in the future; and many other ongoing pregnancies using Thai surrogate mothers or gestational carriers (2BBC News Asia. Thai surrogate baby Gammy: Australian parents contacted. Available from: http://www.bbc.com/news/world-asia-28686114. Accessed August 8, 2014.Google Scholar). In addition, Thai clinics had recently been doing a thriving business with couples from mainland China, who would arrive with their own Chinese surrogate. Once a pregnancy occurred, all returned to China where the birth certificate could list the names of the intended father and mother (3Johnson I, Li C. China experiences a booming underground market in surrogate motherhood. New York Times, August 2, 2014. Available from: http://www.geneticsandsociety.org/article.php?id=7955&&printsafe=1/. Accessed August 7, 2014.Google Scholar). In Israel, most of Europe, and many US states, commercial surrogacy is illegal (1Topping A, Foster B. International surrogacy laws in the spotlight amid row over baby Gammy. The Guardian, August 4, 2014. Available from: http://www.theguardian.com/world/2014/aug/04/global-surrogacy-laws-debate-baby-gammy-thailand/. Accessed August 7, 2014.Google Scholar, 2BBC News Asia. Thai surrogate baby Gammy: Australian parents contacted. Available from: http://www.bbc.com/news/world-asia-28686114. Accessed August 8, 2014.Google Scholar, 4Rodino IS, Goedeke S, Nowoweiski S. Motivations and experiences of patients seeking cross border reproductive care: the Australian and New Zealand context. Fertil Steril 2014. 10.1016/j.fertnstert.2014.07.1252.Google Scholar). Some countries allow a woman motivated by altruism to carry such a pregnancy, without payment for her services. In addition, most countries limit the ability of same-sex couples or unmarried individuals to access surrogacy. Commercial surrogacy agreements are illegal in Australia. Three Australian states, although not Western Australia where the Farnells reside, have criminal penalties for couples who arrange a commercial contract for surrogacy anywhere. Thailand, along with India, Russia, Georgia, and Ukraine, have collected hundreds of millions of dollars annually in recent years for cross-border, commercial surrogacy as well as other assisted reproductive technology (ART) arrangements (5Engel M. Cross-border surrogacy: time for a convention?.in: Boele-Woelki K. Dethloff N. Gephert W. Family law and culture in Europe: developments, challenges, and opportunities. European Family Law. vol. 35. Intersentia Ltd, Cambridge, UK2014: 199-216Google Scholar). Contracts for commercial surrogacy are legal in 19 US states. International patients are common in the United States, but costs for a birth using commercial surrogacy range from $100,000 to $250,000, compared with $35,000 to $100,000 in other nations. In addition, US law offers some protection to the woman who carries the pregnancy. In India, gestational carriers are often isolated from their families in dormitories during the pregnancy, with daily visits from counselors who remind them that the baby is not theirs to keep. Surrogacy contracts are enforced by the courts if a custody dispute occurs (1Topping A, Foster B. International surrogacy laws in the spotlight amid row over baby Gammy. The Guardian, August 4, 2014. Available from: http://www.theguardian.com/world/2014/aug/04/global-surrogacy-laws-debate-baby-gammy-thailand/. Accessed August 7, 2014.Google Scholar). Reform legislation has been proposed recently in India, mainly restricting surrogacy arrangements to heterosexual couples living in a country where cross-border surrogacy is legal. As a psychologist who worked for years with donors and patients participating in ART, I often reflected that any fertile woman can get pregnant and raise her child as she pleases, unless someone presents evidence of abuse or neglect. However, once a woman, intended father, or couple has trouble conceiving a child or carrying a pregnancy, they not only need medical intervention, but also may have to pass a screening of their parental “fitness” and mental health. Yet, given the emotional and legal pitfalls of third-party reproduction, some scrutiny seems justifiable to ensure truly informed consent and to protect the well-being of all participants—donors and recipients of gametes, gestational carriers, and offspring. Cross-border reproductive services typically do not include such protections. Indeed, a debate is ongoing over the ethics of allowing a woman to earn as much as triple her usual yearly salary if she is willing to be a gestational carrier. Is this empowerment of third-world women who want a better life for their children and husband, or exploitation and commodification of impoverished women as wombs for rent? It is no surprise that third-world nations that have become centers for commercial assisted reproduction are also known for human trafficking and domestic abuse of women, especially in poor, rural areas. The report in this issue by Rodino et al. (4Rodino IS, Goedeke S, Nowoweiski S. Motivations and experiences of patients seeking cross border reproductive care: the Australian and New Zealand context. Fertil Steril 2014. 10.1016/j.fertnstert.2014.07.1252.Google Scholar), researchers from Australia and New Zealand, makes several relevant points. They analyzed anonymous questionnaires from 137 residents of Australia and New Zealand, recruited from Internet sites offering forums or information on cross-border reproductive services. Eighty respondents had considered such arrangements, 57 who had actually used cross-border ART. Results demonstrate that local laws prohibiting various types of ART, such as commercial surrogacy or gender selection for family balancing, or statutes restricting access to ART to only conventional, heterosexual couples, do not necessarily deter people from pursuing their dream of having a child. Those with the money and resources can go abroad and avoid long waiting lists, legal limitations, and nosy health professionals. It was striking that a majority of respondents rated cross-border reproductive services as medically sound (91.2%) and safe (89.4%), as well as reasonable in cost (85.7%). However, of the 57 who pursued treatment, only 57.9% felt their emotional needs had been satisfied. A mere third said that counseling was offered by the offshore clinic (31.5%) or had any type of legal advice (32.6%). Often, such advice took the form of counseling by clinic staff rather than a consultation with an expert attorney. In a global economy, an international approach to setting standards, similar to the 1993 Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption, may be the best chance to achieve the goals of informed decision making and protection for all parties involved in third-party reproduction. The lucrative market for “infertility tourism” will remain a barrier, however, to getting nations to sign on to such a treaty (5Engel M. Cross-border surrogacy: time for a convention?.in: Boele-Woelki K. Dethloff N. Gephert W. Family law and culture in Europe: developments, challenges, and opportunities. European Family Law. vol. 35. Intersentia Ltd, Cambridge, UK2014: 199-216Google Scholar). Motivations and experiences of patients seeking cross-border reproductive care: the Australian and New Zealand contextFertility and SterilityVol. 102Issue 5PreviewTo explore the motivations, clinical care, counseling, and support experiences of Australian and New Zealand participants considering or having participated in cross-border reproductive care (CBRC). Full-Text PDF