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The story of baby Gammy and his "surrogate" mother, Pattaramon Chanbua, hit headlines around the world last week. Six-month-old Gammy, born with Down syndrome and a congenital heart condition, was conceived as a result of a commercial surrogacy arrangement between Chanbua, a Thai national, and an unknown Australian couple who abandoned him at birth.
Chanbua, a 21-year-old mother of two other children, was offered 350,000 baht (approximately US $11,000) to be a surrogate. She told an Australian ABC reporter that her family was struggling to pay off debts when she and her husband agreed to the arrangement:
The money that was offered was a lot for me. In my mind, with that money, one, we can educate my children, we can repay our debt.
When she became pregnant with twins, Chanbua was promised an additional 70,000 baht (approximately US $2000). Then, at four months into the pregnancy, doctors discovered that one of the babies had Down syndrome.
According to reports, the Australian commissioning couple (the genetic parents of the children) said they did not want a baby with Down syndrome. “They told me to have an abortion but I didn’t agree because I am afraid of sin,” Chanbua reports.
An abortion would have been illegal under Thai law unless the mother’s health was at risk.
On the birth of the children, Chanbua was paid the original amount, but not the extra money. The Australian couple took Gammy’s twin sister home with them, and left Chanbua and her family to care for Gammy. This put her in a desperate situation, unable to pay for his medical needs.
The Thai newspaper Thairath published Gammy's story last week, and an online campaign to raise money for his treatment was launched shortly afterwards. The story has been met with outrage and compassion from hundreds of people who have now donated close to $200,000.
A spokesman for Australia's foreign affairs department has expressed "concern" about the reports and said it is in consultation with Thai authorities over surrogacy issues.
The Thai government quickly announced that it will now be illegal to pay for surrogacy in Thailand, and that the practice can be undertaken only in circumstances in which the surrogate is related to the intended parents, and the intended parents are medically infertile. People who remove children from Thailand without the approval of the government would also be subject to Thai anti-trafficking laws.
Some agencies and lawyers who facilitate surrogacy arrangements have responded primarily with concern that hundreds of would-be-parents may be left unable to satisfy their longing for a family. They suggest that it would be better to permit commercial surrogacy in Australia.
These responses stand in stark contrast to the many people who see Baby Gammy’s plight as highlighting the extent to which commercial surrogacy arrangements can exploit and commodify women and children. Chanbua entered into the arrangement because her family was desperate and in debt. This was no "win-win" situation, whatever the outcome: rather, it was one in which surrogacy brokers and a relatively wealthy Australian couple took advantage of another family’s dire circumstances. Baby Gammy’s situation only serves to emphasize the extent to which money influenced and drove the transaction.
In my country, Australia, all states and territories prohibit commercial surrogacy arrangements. New South Wales, Queensland and the Australian Capital Territory also prohibit travelling to other countries to engage in such practices. The Australian government lists such prohibitions in its reports to the United Nations as forming part of our laws against the sale and trafficking of children and of meeting our obligations under international law. Some people who are travelling abroad and engaging in commercial surrogacy are breaking laws.
Should Australia as a consequence of such incidents now change its laws to permit commercial surrogacy? I would respond to this question with a resounding “no.” While careful regulation of altruistic surrogacy arrangements allows an alternative avenue to having a family, introducing profit into such arrangements places women and children at risk. Baby Gammy is but one example of this. His twin sister—who may never know that he exists or the circumstances of her birth—is another. Pattaramon Chanbua is a third.
The majority of nations that have established laws on surrogacy prohibit commercial arrangements. However, because a few permit surrogacy (for example, India, Guatemala, Russia, the Ukraine, and some U.S. states), brokers, lawyers, and clinics continue to encourage people wishing to have children to "forum shop" to "realise their dreams.” The result has too often been complex situations for children, commissioning person(s), and women working as surrogates. In some cases, problems have arisen about legal parentage and citizenship for children; this has been the primary focus of many recent news stories.
But we should not lose sight of the significant international human rights issues reflecting social, economic and racial disparities between surrogate mothers and commissioning person(s), involving the exploitation and commodification of women and children. These are clearly illustrated by the baby Gammy case.
One Australian surrogacy facilitator referred to the “market” in remarks about baby Gammy that were reported in a major newspaper. The use of this term is telling in itself. While this case has raised the need for further discussion, let me suggest that the discussion should not address how to support such a market, or to introduce or broaden the market to Australia. Rather, it should focus on how to protect the rights and welfare of children and women in line with established global human rights standards. In my view, this includes taking a strong stance against commercial surrogacy.
Sonia Allan is Senior Lecturer in Law at Macquarie University. Her research focuses on wide-ranging health-related ethical, legal, human rights and regulatory issues. She has worked extensively in advocating for women and children in situations in which assisted reproduction has been used and researching the regulation of new biotechnologies. Her latest major work is The Patient and the Practitioner: Health Law and Ethics in Australia, co-authored with Meredith Blake (2014).