A new danger is born as surrogacy moves to Cambodia

Forced from Thailand amid scandal, agencies setting up in Phnom Penh appear to have learned few lessons.

When Cambodia’s first fertility clinic opened its doors late last year, it was heralded as a medical milestone for a country where even the most basic health services are limited.

“The miracle of IVF in Cambodia [is starting],” managing director Samnang Hor told local media as the first couples began enrolling for treatment at the Fertility Clinic of Cambodia (FCC).

About a month earlier, fertility treatments were making news in Thailand for entirely different reasons: the baby Gammy scandal had just been exposed, marking the beginning of the end for the thriving commercial surrogacy operations that were based here.

The timing was unconnected but proved opportune; Bangkok-based agencies were quick to seize on the chance. And so instead of halting the march of the lucrative industry in Southeast Asia, the crackdown by Thai authorities, which saw the prohibition of all commercial surrogacy, served only to delay it momentarily.

In March this year, the first surrogacy programmes started in Phnom Penh, carried out by FCC on behalf of surrogacy agencies which had shifted their operations across the border.

“The Thai government banned it, so what’s happened is the Thai operators have jumped the border and set up in Cambodia where there are no surrogacy laws,” an international surrogacy expert with close ties to the industry told Spectrum on condition of anonymity.

But forced to operate in a murky haze of semi-legality, Cambodia is far from the safe haven the industry sought. Several insiders have expressed fears that both surrogate mothers and intended parents will be left vulnerable in the event of a crackdown by authorities — something viewed as unavoidable.

“Like Nepal and Thailand [previously], the situation is very precarious,” said Sam Everingham, the founder and director of Families Through Surrogacy, an Australia-based advocacy group.

“There is a high risk that pressure from international governments will lead Cambodia to introduce laws banning surrogacy.”

AN INDUSTRY CONCEIVED

Samnang Hor said surrogacy operations in Cambodia remain in their infancy, and insisted his clinic is committed primarily to altruistic treatments for locals.

“FCC was established and designed to respond primarily to infertile Cambodian couples, reckoning the mere fact that most infertile couples find it difficult or even cannot afford this specialised treatment overseas,” he told Spectrum.

But there are signs that a significant expansion in commercial surrogacy is under way.

The first agencies began moving to Cambodia around the start of this year and there are already at least a dozen based there.

More than 100 couples are believed to have enrolled in surrogacy programmes since March, a figure confirmed by both Mr Everingham and the industry source.

For his part, Samnang Hor claims only three surrogacy cases have passed through his doors, all of which were non-monetary. He accepted, however, that money might have been involved in some cases without FCC’s knowledge.

“Non-monetary compensation is stipulated in one clause [by FCC], even if [the surrogates] might have been compensated, which I don’t probe into,” he said.

Within the past two months, a second fertility clinic has opened — European Fertility Centre, which is partially owned by New Life, an international surrogacy agency that was one of the top players in Bangkok’s now defunct industry.

Samnang Hor said talk of rapid growth was still premature “because foreign couples don’t even realise that assisted reproductive technology exists and works in Cambodia”.

But that is changing; word is spreading fast, accelerated by last month’s crackdown in Nepal which effectively ended commercial surrogacy operations there, leaving dozens of families stranded.

“There are apparently 10-12 surrogacy agencies at least now operational in Phnom Penh,” Mr Everingham said.

“Some of these have shifted from Bangkok, many from Kathmandu as well as some global providers, and a few from the USA.”

The industry source placed the figure at closer to 20.

One of the largest is New Genetics Global (NGG), run by Thai national Karin “Josh” Kittithanon, who declined to comment for this story.

‘HIDEOUSLY DANGEROUS’

While Cambodia is now the base of operations for surrogacy agencies, ties with Thailand have not been completely severed despite the strict new laws which took effect in July. NGG’s website, launched in January, features profiles of available egg donors and potential surrogates for intended parents to choose from. Of the egg donors advertised, about a dozen are Thai. On New Life Cambodia’s website, the figure is much higher at about 65.

Multiple sources have also told Spectrum that some agencies are paying Thai women to work as surrogates and carrying out clinical procedures in Phnom Penh, circumventing the recent legislation.

“[The women] travel to Phnom Penh for embryo transfer, then back to Thailand for the gestational period,” Mr Everingham said. “It’s assumed births will take place in Cambodia,” he added, but noted that no births have yet taken place.

Nandana Indananda, a partner at Tilleke & Gibbins legal firm who headed one of the committees which helped draft the recent surrogacy law, said the cross-border operations have the potential to raise complex legal problems. But he believed that Thailand’s ability to control its citizens participating in the trade is limited to surrogacy arrangements undertaken within its jurisdiction.

“It is a question of whether any part of a commercial surrogacy arrangement … was conducted in Thailand. If not, this arrangement is arguably not illegal in Thailand under the current law,” he said.

“However, in a case that the surrogate mother is brought back during the gestational period, if she is to be taken care of by a medical service provider in Thailand who is part of the arrangement, such a medical service provider will [potentially] be liable under the law.”

He added that the intention of the legislation was that surrogate mothers would not be criminally liable unless they are actively advertising their services as a prospective surrogate.

If the baby is born on this side of the border for any reason, Mr Nandana said, the biological parents could also face problems trying to claim custody of the child if a commercial surrogacy arrangement was proven.

On the Cambodian side, the legal situation is even more precarious. While the practice is not strictly illegal, a complete lack of governing laws or regulations means there are no mechanisms in place to deal with disputes or other problems which may arise.

“You know what is going to happen; as soon as the problems start and people can’t get babies home, all hell will break loose, it will be Thailand all over again. I think it’s hideously dangerous,” the industry source said.

EXIT STRATEGY

When the furore over baby Gammy — who was born with Down’s syndrome to a surrogate mother and abandoned by his Australian biological parents — erupted in Thailand last year, fears were quickly raised that Cambodia would become the next base for surrogacy agencies. With the opening of FCC, the facilities were in place, and there was a view that rampant corruption would make a government crackdown easier to offset.

Phnom Penh, however, was quick to respond, declaring surrogacy illegal and threatening practitioners with imprisonment. Since no laws directly mention surrogacy, it was assumed the government would use human trafficking legislation to prosecute surrogacy practitioners.

Yet in reality, there has been no enforcement. More than six months since the first surrogacy case in Phnom Penh, the industry is advertising openly and operating in plain sight. Several NGOs contacted by Spectrum said there was a broad awareness that the practice was happening, even though details about the operations were scarce.

More than a dozen attempts to contact government figures in Cambodia seeking comment went unanswered.

Within the past two weeks, Families Through Surrogacy has issued a warning on its website urging prospective parents “not to engage in surrogacy in Cambodia in the absence of laws protecting surrogates and intended parents”.

But a memo written earlier this year by New Genetics Global’s Mr Karin and sent to staff and prospective clients seeks to address some of those concerns.

The only laws which could potentially be applicable to surrogacy, Mr Karin argues, are Articles 332 and 333 of the Criminal Code. But both are designed to counter human trafficking and Mr Karin believes they are worded in such a way that would render them inapplicable to surrogacy cases.

The process of taking custody of a child born through surrogacy is also easier than it was in Thailand. Because the biological father is given equal parental rights as the birth mother, there is less chance of a serious dispute. Under Thai law, the biological father did not appear on the birth certificate and was forced to appeal to the courts for paternal rights.

But formal consent is still needed from the surrogate mother to relinquish custody of the child.

Amid concerns that contracts signed between the agencies and the surrogates are unlikely to have any legal standing, there are fears that a dispute could arise. The precedent has already been set — a same-sex couple has been stranded in Bangkok for more than eight months because the surrogate they employed refuses to relinquish custody of their child.

This interpretation of the law is, at present, largely theoretical. With the surrogacy industry in Cambodia only six months old, no babies have yet been born, so the exit strategies will not be properly tested until early next year.

Three lawyers in Phnom Penh who were approached by Spectrum for comment declined to offer their professional opinions, saying the area was too complicated.

NO PROTECTION

Setting up surrogacy operations in Cambodia has proved more challenging than it was in Thailand, particularly when it comes to recruitment. The concept is foreign to many locals and carries social stigmas that make it unattractive to some women.

“To advertise for surrogates in Cambodian media is not possible as the culture has no understanding of surrogacy,” Mr Everingham said. Instead, agents are relying on word of mouth as well as direct recruitment, usually targeting women in poorer rural areas.

The industry source said, “In Thailand you could [previously] Google ‘surrogacy in Thailand’ and come up with 50 clinics and agents offering surrogacy services. Surrogacy advertising for Cambodia is more covert, most likely due to the experience of Thailand.

“The surrogates are coming from direct recruitment from within Cambodia by middlemen who go into villages and promote the good pay offered by the agents.”

With the chance to earn about US$10,000 in nine months, it offers a seemingly easy ticket out of extreme poverty. Yet whether due to client demand or local supply, it appears the local recruitment drive is not enough.

As well as Thai women being employed as surrogates, “a few Indian clinics who were shut down in Nepal are planning to fly in Indian surrogates to live in Cambodia during treatment and pregnancy, give birth in Cambodia, then travel home”, the source said.

Wherever the women come from, there are concerns that they are not adequately protected if things go wrong, raising the risk of exploitation.

“Surrogates are given absolutely no protection whatsoever,” said the source. “The surrogacy contract they will sign with the intended parents has no legal validity and it is not enforceable. When surrogacy shut down in Thailand, surrogates were left without treatment and without payment. History proves surrogates are the last to be cared for when things go wrong.

“If the government comes in and shuts this down, it is likely we will see hospitals refusing to give treatment to pregnant surrogates as happened in Thailand and Nepal.”

Mr Everingham said there were genuine fears among advocates that the rush to outlaw surrogacy in many countries, including Thailand, was pushing the industry further toward unstable regions where the chances of exploitation are higher. “This is an undoubted trend and a huge concern in regard to the availability of best-practice surrogacy,” he said.

‘WHILE THE GOING’S GOOD’

In the meantime, intended parents are being forced to place enormous amounts of trust and money in an industry where some operators appear to value short-term profits over longevity.

“The industry does practise some level of self-regulation, to inform potential surrogates fully of the process in order to establish informed consent,” Mr Everingham said.

Yet standards differ wildly. Some agencies, like New Genetics Global, are upfront about the potential risks and advise clients accordingly.

“It should be stated that as intended parents, you are looking into surrogacy options in Southeast Asia in order to defray associated costs. With these savings certainly comes a higher element of risk,” Mr Karin wrote in the internal memo.

“If you wish to have the risk completely eliminated, then you should be seeking surrogacy services in a country where the industry is 100% legal, such as the USA (where you may pay twice as much).

“It is ultimately up to you, the client, to determine how you would like to proceed.”

New Life Cambodia, however, takes a more illusory approach.

“Cambodia is surrogacy service friendly and the service is supported by the government and the society,” its website says, claiming surrogacy is the “second powerful reason that pulls tourists” to the country after its rich culture.

“Surrogacy services are not entangled in complicated legal issues.” 

It is this type of misinformation and lack of regulated standards that is driving fears that desperate couples are being lured into a trap.
“It is clear from conversations I have had with numerous intended parents that agencies are glossing over the potential problems,” said Mr Everingham.

“To be clear, agencies operating in Cambodia tend to be driven to ‘get in while the going’s good’ — that is, to maximise client enrolments while they can, regardless of the longer-term viability of surrogacy in Cambodia.”

The industry source said couples are often blinded by a mix of genuine ignorance and desperation, but is fearful that efforts to legalise surrogacy in countries like Australia are being hampered by the bad practices of rogue operators in places like Cambodia.

“People are so desperate to have children and so naive they believe whatever they are told and ignore their own embassy,” the source said.

“I cannot tell you how [negatively] this affects the international surrogacy community as a whole, even places where it is legal and things are regulated and go well.”

Sanphasit Kumprabhan, a prominent children’s rights activist who helped draft Thailand’s surrogacy laws, called for a regional approach.

“I think Asean needs to consider what is going on and have the same standards, not just on this but on all population matters,” he said.

“There must be a standardised system, or else the Asean community means nothing.”

TAKING RESPONSIBILITY

There is a general consensus among surrogacy advocates that the only way to to end the uncontrolled country-hopping and ensure the safety of everyone involved is to properly regulate the industry, rather than outlaw it.

In Thailand, Mr Sanphasit said, that is unlikely to happen soon given the legislation that passed in July.

But Samnang Hor, from the FCC clinic, said Cambodia needed to address the issue in the near future.

“Regulations are integral to controlling and preventing this industry from becoming commercial,” he said. “In my humble opinion, as long as it’s an altruistic one and based on medical grounds, it should be permitted like in developed countries such as the US. It saves lots of desperate families.”

Mr Everingham said intended parents also had to accept part of the responsibility and encouraged them not to fall prey to misleading information.

“The best way to address this issue is to strongly encourage commissioning parents only to engage in jurisdictions which have laws in place protecting surrogates, intended parents and children,” he said. “Secondly, source countries — such as Australia — need to do much more to facilitate access to surrogacy within their own borders.”

Ros Sopheap, executive director of Gender and Development for Cambodia, said although her knowledge of the surrogacy industry was limited, she felt that in its commercialised form it would only spell trouble for Cambodia.

“It is a very new issue in Cambodia and it seems that not many people are aware about it, especially women who are living in the remote areas,” she said.

“I hear many stories from Thailand and India which are not convincing me to have it in Cambodia, as our technology is not as advanced as in developed countries. More than that, it is a business and again it is the powerful people that will get the benefits.”

New generation: Fears Cambodia would be the next stop for the commercial surrogacy industry were raised after the case of Baby Gammy last year.

About the author

Writer: Dane Halpin