Check out our Khmeronmics blog updated regularly. See below our first post of 2017 on commercial surrogacy Link: .https://khmeronomics.wordpress.com/2017/01/24/commercial-surrogacy/

Commercial Surrogacy

Paula Garcia & Benjamin Johnson

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In just a couple of decades, commercial surrogacy has become one of the greatest moral controversies of our time. But what is surrogacy and what are the implications of surrogate pregnancies?

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During the 70´s, In-Vitro fertilization (“IVF”) techniques gave the opportunity to have biological children, to families with problems to naturally conceive them. IVF is the practice of implanting a fertilized egg into a woman uterus. The sperm of the biological father is combined with the eggs of the biological mother in a laboratory, and then implanted in the uterus of the biological mother. It requires that both biological parents have healthy eggs and sperm, and that the mother is able to carry with the pregnancy.

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It soon became obvious that IVF techniques could also help those unable to reproduce due to infertility, or to women who could not carry on with a pregnancy due to health risks. The solution was for the pregnancy to be carried out by a surrogate mother; a woman who would have the embryo implanted in her womb, carry out the whole pregnancy, give birth to a child, and step aside for the final parents to raise their child.

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In less than a decade infertile families and same sex couples could have biological children. However, this was met with great controversy. While clinics opened across the globe offering surrogacy services, anti-surrogacy groups pushed governments to make the practice illegal based on religious, moral and ethical issues arising with the practice. Families rushed from one country to another searching for safe surrogacy havens before the practice was banned.

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Bans spread quickly across many European and North American countries, and the higher costs associated with surrogacy pregnancies in the few western countries that chose to regulated, resulted in clinics opening in Asia, offering safe and affordable surrogacies to families in need of them. One notable example where this occurred in in India.

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Indian clinics started offering surrogacy services around the 1990´s and it soon became a booming industry, fuelled by its secure environment, the availability of highly qualified professionals and good facilities, and its affordable prices. Although is impossible to know the exact scale of surrogacy in India, in 2012 an UN-backed study estimated the surrogacy business at more than 400 US millions a year, with around 3,000 fertility clinics in the country.

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Despite the success of commercial surrogacy in India, surrogacy has gradually become increasingly restricted over the last decade. An immediate impact of these restrictions was the opening of surrogacy clinics in unregulated markets like Nepal, Thailand and Cambodia.

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Last year, India completely banned access to surrogacy services to foreigners, single parents, unmarried couples, and same sex couples. It restricted surrogacy to Indian infertile couples, whose members are older than 25 years old and have being married for at least 5 years. After its ban in India, more families looked to Thailand and Cambodia as viable and affordable alternatives.

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Commercial surrogacy practices in other parts of the world have been met with a much swifter backlash than we have witnessed in India. In Thailand, commercial surrogacy was banned after 18 months of operating, and in Nepal after just 5 months. In Cambodia, surrogacy clinics worked for about 8 months until the Government banned the practice through a mere governmental declaration made by the Health Minister in November 2016.

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The surrogacy business in Cambodia boomed following Thailand´s ban. Initially, dozens of Thai surrogate mothers were moved to Cambodia to finish their gestations and give birth in Cambodia. Few Cambodian clinics specialized in assisted reproductive services, such as IVF, soon started to provide surrogacy services to both Cambodian families and foreigners. Some of those clinics had international recognition such as Talent IVF and New Life, a company previously operating in Thailand. The clinics offered donated eggs and sperm (from local or international donors), the services of surrogate mothers and assistance throughout the process of taking the baby back to the parents´ country.

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Under Cambodian family law, when a baby is born, the father has equal paternity rights with no court process required. In order to return to their home country with the baby, the father had to register the child under his name and the surrogate´s mother name, and obtain a consent from the surrogate mother to leave the country with the child. Officially, the surrogate mother is the legal mother of the child. Something that could have caused problems in case the surrogates didn´t want to give up the babies which they had gestated.

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Following the ban, government officials initiated the persecution of some staff members of the few surrogacy clinics operating in the country. As a result of this persecution, in December 2016, Australian Tammy Davis-Charles was arrested under human trafficking charges for her alleged involvement in an illegal surrogacy network in Cambodia.

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The arrest of Tammy David-Charles opened dialogue surrounding the ethical nature of surrogacy. However, outspoken opinions expressed by the government and critics of the commercialization of surrogacy continue to be the focus of the discussion. Opponents to surrogacy argue that is immoral and unnatural, and that it is a form of exploitation of women. Scandals have been seen across the developing world, namely in India and Thailand where women have been exploited, babies left abandoned and the ethical nature of the industry itself brought into question.

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In contrast, there is very little heard in the debate from the side of the surrogate mothers themselves and the families wishing to use the services. The general narrative has remained very one-sided with critics expressing concern followed by government bodies acting to ban the practice out right as seen in India, Thailand and now Cambodia. These bans have largely been implemented as a measure to eliminate the exploitation of women in surrogacy practices, however the exploitation of workers affecting other industries are not met with similar blanket ban policies like that of surrogacy. Instead, governments develop legislation addressing the causes of exploitation.

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The ban of surrogacy in Cambodia comes after a series of scandals that have caused worldwide outrage, such as the “Baby Gammy Case” in Thailand, where the intended parents allegedly took home one of the twins conceived through surrogacy, leaving the twin brother with Down’s syndrome behind. (Late findings on the case dispute the fact that the family abandoned Baby Gammy, pointing instead to the surrogate mother wanting to keep the baby). Or a case involving a Japanese man who fathered 16 babies in Thailand, so they could take care of his business in the future.

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The short life of surrogacy in Cambodia hasn´t left any scandal or case of exploitation that led to this ban. The decision was taken after pressures from NGOs criticizing the practice as a form of exploitation.

While it is great that people are standing up to protect the women of the developing world from exploitation, it is worth questioning if some of these ‘good intentions’ implemented to protect women are nothing more that the promotion of conservative and paternalistic attitudes toward women; and are preventing women from exploring voluntary avenues that may significantly improve their financial situation. Critics never seem to ask the surrogate women about their opinions. There is the assumption that they are victims of exploitation, but nobody ask the “victims” how do they feel. In addition, voluntary surrogacy can offer a path for women to become financially empowered, offering them between USD$10,000-12,000 per birth (as mentioned in the article previously linked), which is currently 10 to 12 times high than the average annual income in Cambodia (citing 2014 figures).

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So, why then are willing mothers robbed of their right to choose what they do with their bodies? Surrogacy is a modern solution to an old problem: Families that want to have their own biological children but are having problems to naturally conceive them. Government prohibitions will not make it disappear. According to France Winddance Twine, author of Outsourcing the Womb: Race, Class, and Gestational Surrogacy in a Global Market, “More than 160 million European citizens want these services, but aren´t able to access them in their own country. If people can´t get this service in India or Thailand, they will find another place”

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While many have cheered the ban on surrogacy in Thailand and India, few people have asked what happened to the surrogate mothers when these regulations are enforced. The mothers are the ones who suffer the most when these laws are passed, and they are left stranded with a surrogate pregnancy that has suddenly become illegal.

Instead of classing this industry outright as inherently oppressive and qualifying the women involved as mere victims of this oppressive structure, policy makers should recognise that, while some women are coerced into become surrogates by their families or by immoral brokers, other women choose to participate in a surrogacy program weighing out their benefits. Regularization and government supervision is the only way to guarantee that surrogate mothers are willingly accepting the terms and conditions of surrogacy, and that they understand the process involved. If anything, banning surrogacy will only increase the chances of women involved in surrogacy being exploited as the services are forced underground or to other developing countries away from the prying eyes of regulators.

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An alternative course of action should be focused on efforts to protect surrogate mothers, allowing them to make their own choices while implementing policies to mitigate abusive arrangements. Surrogacy also opens a whole new path in family law in order to address paternity rights to better protect babies born from surrogacy practices.

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The topic of debate needs to become more open so that people can see how these blanket ban policies will in the long run be more detrimental women in Cambodia and other parts of the developing world.