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Tuesday, September 22, 2015

Beyond the womb

Gordon Lake and Manuel Santos had a strong desire to be parents. With zero odds of a pregnancy, their only hope was a Thai surrogate.

The couple's dream to have a family, unfortunately, turned out to be a nightmare when their surrogate rescinded her agreement to hand over Carmen  -- born from Lake's sperm and another woman's egg  -- to the couple. To fight for parental rights Lake, who also fathered Alvaro, a two-year-old boy born through surrogacy in India, has been in Thailand since January.

"This is the most difficult time of our entire lives," conceded Lake, a 41-year-old American, in an email interview with Life. After months of struggles in Thailand, Lake decided to launch "Bring Carmen Home", an online petition on to support him and his family to take eight-month-old Carmen back to Spain, Santos' home country. The petition has more than 120,000 supporters so far. He also set up a Facebook page where people share words of encouragement and sometimes financial aid to cover the family's legal expenses.

"We have already been in Thailand for more than eight months and this has obviously taken a toll on us in many ways  -- our family, jobs and our lives," Lake added "We have been away from our family for so long and we have had so many extra expenses We just want to be home -- all four of us together."

Even though Carmen was born from Lake's sperm, Thai law grants custody of a child to its birth mother, regardless of any biological ties.

However, recently the National Legislative Assembly enacted the Protection for Children Born through Assisted Reproductive Technologies Act, allowing Lake to see a dim light at the end of the tunnel. Nicknamed the "surrogacy law", the act was put into effect on July 30.

The American is not the only one who has been embroiled in a surrogacy gridlock in Thailand, a country known to many as the womb of Asia, where the baby-producing industry is worth more than 4 billion baht, according to figures from the Bureau of Sanatorium and Art of Healing.

Set aside same-sex couples choosing surrogacy as a means to build a family, there have also been cases of people deliberately exploiting surrogacy for human trafficking such as Japanese businessman Mitsutoki Shigeta, who reportedly fathered 12 babies with Thai surrogates.

A lawyer from the Law Reform Commission of Thailand, Apichat Pongsawat, said that this newly-enforced surrogacy law is the first of its kind in the country.

"Before this, the country only relied on the Medical Council's policy when coming to terms with cases associated with reproductive technology," explained Apichat. "And the regulation only allowed couples  -- husband and wife  -- with medical issues to opt for surrogacy. The new law is quite similar in principle but it covers more, in detail."

In a nutshell, the act allows surrogacy for lawfully wedded couples where the wife cannot get pregnant. The woman who is to serve as the surrogate must be a blood relative of either the husband or the wife, but not the couple's parents or descendants. Also, the surrogate must have had a previous pregnancy, gain the approval of her husband (if she is married) and her eggs cannot be used. If the surrogate is single, no permission is required from anyone.

The new act outlaws surrogacy for commercial purposes, making anyone involved for financial profit subject to up to 10 years in prison or a fine of up to 200,000 baht. In terms of custody, the new law states that the couple that seeks surrogacy are the legal parents of the child. The surrogate has no legal rights over the baby she gives birth to. However, same-sex couples are not covered under the new law.

"The law completely shuts the door for same-sex couples," said Apichat. "Given the fact that the law is aimed to provide couples with reproductive issues a chance to have a baby, we should give the same chance to homosexual couples too because they also fall into this category."
The surrogacy law has been criticised as being discriminating and infringing the rights of several groups of people, especially children born through surrogacy and surrogates themselves, said Suchada Taweesit, president of the Sexuality Studies Association at Mahidol University's Institute for Population and Social Research.

"The new surrogacy law reflects prejudices that have existed in society," Suchada stressed. "The enforcement outlaws commercial surrogacy but it does not take into account that the entire surrogacy issue, in fact, reflects social inequality. The law is well-intentioned, but it still violates people's rights." Women are treated as inferiors by the new law, continued Suchada.

"From my studies, most surrogates decide to get pregnant because they are impoverished or in debt. All this leads to surrogacy for [financial] profits. So the women should have the right to make their own choices. The womb belongs to the woman. So why does she need to ask her husband's permission to serve as a surrogate? At the same time, children born through a surrogate should have the right to know who gave birth to them."

Suchada said that one perk of the surrogacy law is that it throws cold water on medical practitioners and agencies, who may take financial advantage of the procedure. But instead of enforcing regulations that strip the rights off some groups of people, the law should be accompanied by a more comprehensive screening and monitoring protocol, both before and after surrogacy, to prevent it from being abused.

"The law should examine [surrogacy] agencies carefully and check if they all are legally licensed," Suchada added. "Women who are to become surrogates must also be investigated to see if they have any suspicious background, which could potentially lead to human trafficking. This is because if we do not do all these things right in the first place, surrogacy will definitely go underground because those who wish to have babies are still willing to do anything to have them.

"And this is likely to bring about more human rights infringements."    

Director of the Rainbow Sky Association of Thailand and gender activist Danai Linjongrut said the surrogacy law is too narrow and it is not based on what has actually happened in society.

"Surrogacy is a new social issue. But the law was written and put into action based on the old mindset that parents must comprise a woman and a man, no one else," said Danai. "So to offer the best benefit to all parties concerned, every surrogacy-related issue must be discussed openly without discrimination. If it is surrogacy for money, for example, then it should also be discussed as to why and how to make it reasonable based on the country's family planning protocol.

"Carmen is one of the great lessons for every one of us," he added. "From her, we do not just learn about the legal aspect of surrogacy. We also learn about sexuality, family and equality."

As a father, Lake only wants to give Carmen all the opportunities in the world -- to be the happiest person she can be, send her to an international school so that she speaks several languages and bring her up to be a loving and caring girl.

But in the meantime, while he is stuck in Thailand fighting for custody, he is hopeful that the surrogacy law and its temporary exceptions would eventually give him the legal right to be called Carmen's father.

"The law itself outlaws surrogacy for all foreigners," said Lake. "But there are also temporary provisions, which are defined that it is in the best interest of the child born through surrogacy that the child's legal parent be the biological parent  -- the parent who wanted her so badly, not a surrogate who agreed to carry the birth for another family.

"Just because a surrogate carries a child, that doesn't mean that she would be a better parent for the child," he added. "Just because the surrogate is a woman, it doesn't mean she would be a better parent for the child It is well documented internationally that two fathers can be good parents, too. And we have shown that we are excellent parents who love our children very much."


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