When Surrogacy Goes Wrong

In Surrogacy, nothing is black and white.  Those who turn to surrogacy to building their family have usually been through years of fertility treatment having spent thousands of dollars with nothing to show for their pain and suffering.  One woman who had a positive birth experience in Thailand via surrogacy stated "I don't think people understand when you can't have a family, how hard it is to get children. We were 12 years in the making …I think people think it's so easy to go through — but it's not." This is a story that we hear over and over again.  Most of our clients have been trying for a minimum of 3 years or far longer to have children.  By the time they come to us,  their emotions and finances are drained.  In many cases, adoption may take years and even then may fall through.

The case of Pattaramon Chanbua in Bangkok hit the headlines for all the heart-wrenching reasons that highlight the many issues of what can go wrong with surrogacy abroad.

When I refer to surrogates I am referring to gestational carriers.  These women are never carrying a child that is genetically related to them.

  • While laws vary from state to state we check with legal counsel prior to make sure that all surrogate candidates reside in a state and county that will honor the intended parents as the legal parents of record.  This ensures that the surrogate is not listed as the legal parent as is the case in many countries outside of the U.S. such as Thailand

  • Surrogates undergo a series of background checks to make sure that they are financially stable.  It is unethical for a woman to be a surrogate if she is receiving government subsidies or is suffering serous financial hardship because she may be overly influenced (exploited) to carry a child purely for financial reasons

  • In the U.S., the relationship between the future parent and the surrogate is an interactive relationship.  They often attended doctors appointments together, speak on the phone, email, and text several times a week.

  • Surrogates in the U.S. may benefit from the compensation to help their families but the main reason most choose to be surrogates is because they enjoy being pregnant and want to help someone who can’t carry a pregnancy.  They get great joy from helping others

  • Surrogates in the U. S. are psychologically evaluated by a licensed mental health professional

  • Home visits are conducted to make sure that the surrogate and her family live in a safe environment and that their families are supportive

  • In Thailand the woman who gives birth is considered to be the mother of the child even if the baby is not genetically related to her.  This puts both the gestational carrier and the child in a precarious position

  • In California, if a child is born to a surrogate and the intended parents have a change of heart they are still responsible for the child.  In California it is the intent of the intended parents that is upheld. There are clear contracts stating who the legal parents are and at the time of the birth the intended parents names go on the birth certificate not the surrogate’s.

  • Pattaramon appears to have had no legal counsel or representation to protect her from a situation like this which I’m sure was the last thing she or anyone expected to happen

  • In the United States, it is usually discussed well in advance if a surrogate would be willing to terminate a pregnancy if there were a serious birth defect

  • If a surrogate would not be willing to terminate she is not matched with a couple who might want the option to terminate under medical advice if a serous birth defect were detected I’m not saying that a situation like Pattaramon’s could never occur here but it is far less likely to because of the reason’s I’ve just stated.  There was the case of Chrystal Kelley, a gestational carrier who refused to terminate the pregnancy even though she had agreed to do so in her surrogacy contract. No one can force a surrogate to terminate.  It is her body but in her case she chose to keep the baby and then later gave the child up for adoption.  The biological parents have visitation rights with the adoptive parents.

The situation for Pattaramon is very different. Under Thai law, she is considered to be the legal parent of record and the biological parents are not compelled to take any responsibility for their child.  I understand why Pattaramon decided to be a surrogate.  It was a way to pay off family debt and to provide a better life for her children.  She went into the situation in good faith but there were no laws to protect her, no counsel to prepare her for all circumstances and make her aware of the worst-case scenario in which she has been cast.

There are no winners in this case, least of all Baby Gammy who is now at the center of an international row, separated from his twin and his intended parents. But this tragic case highlights why strict adherence to ethical protocols, in any country, is an absolute when it comes to gestational surrogacy.

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