Surrogacy and the law

Remember the story about the Australian couple who allegedly abandoned their son, diagnosed with Down Syndrome, with his surrogate mother in Thailand, while taking with them the boy’s twin sister?

The couple have since denied that they abandoned the boy, claiming that the surrogate had refused to hand him over and threatened to keep the girl as well and report them to the police if they insisted on taking both twins.

So it now seems a case of “they said, she said.”

Whoever is telling the truth, the case has focused attention on the issue of surrogacy—its legality, morality, and the ethical challenges it presents to the aspiring parents, the surrogate, and the law.

There is no question about the scientific validity of the procedure. The couple provide their sperm and egg, have these fertilized, then have the fertilized ovum implanted in a surrogate who, usually for a certain sum although some do it voluntarily, agrees to carry the fetus to term and then turn over the baby after delivery.

Of course, between implantation and delivery many things can go awry. Some surrogates, during pregnancy and upon delivery, come to think of the baby they’re carrying as their offspring, sometimes disappearing with the child altogether. Others share the heart-wrenching loss of losing their baby almost upon delivery with mothers who decide to offer their children for adoption. The babies are plucked from their arms, often even before they could start suckling their young, turned over to the adoptive parents or the egg-and-sperm donors, treated little better than vessels or wombs for hire.

But the heartache spills over to the parents as well, especially those who, after forking over substantial sums for the surrogate and the agency which makes the arrangements, are left devastated when the surrogate has a change of heart. Sometimes, the impending arrival of a child can test a fragile relationship, leading to the breakup of the marriage. Just remember all the Hollywood and local films revolving around such a dilemma, proof that if this doesn’t happen in real life, then it certainly flourishes in the imaginations of filmmakers.

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STILL, surrogacy is very real and is indeed a growing “industry.” This, even if the business is still mired in controversy and doubts about its ethical limits.

“There is a dark side to this business,” acknowledges a Thai employee of the agency that made the arrangements between the Australian couple and the Thai surrogate, speaking to a foreign publication. Pattaramon Chanbua, 21, already had two older children before she agreed to the arrangement, although she complained that the couple reneged on paying her the full amount they promised.

But the agency employee stressed that “most of the time I have seen happiness,” in cases where the arrangement results in both material reward for the surrogate (as well as perhaps maternal fulfillment) and the arrival of a child to a formerly childless couple who can now complete their family.

Although the more common destinations for childless couples seeking a surrogate in Asia are Thailand and India, surrogacy is likewise booming in China, reports the New York Times.

China is among a growing list of countries where surrogacy is illegal. But the trade is flourishing because of “rising infertility, a recent relaxation of the one-child policy, and a cultural imperative to have children.” The surrogacy black market leads to over 10,000 births a year in China, with many couples traveling to nearby countries like Thailand, or to backwater towns, to find women willing to carry a child to term in exchange for a payment.

Because Chinese couples prefer their children not only to look Chinese but to be biologically Chinese (“blood” is very important in China), often a trip abroad involves the couple and the surrogate for the procedure of implantation. And then, after returning to China, says the NYT report, “the surrogate is installed in a private apartment with a full-time assistant. To make sure she does not get ideas about fleeing with the customer’s fetus, she is cut off from her family and receives daily visits from a psychological counselor.”

Still, cases of fleeing surrogates and absconding parents are increasingly common, and the situation remains “murky” because of the absence of laws and rules in the surrogacy black market.

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WHAT about childless Filipino couples? Is surrogacy a possibility?

There is as yet no law governing the practice, although I know of some couples who enter into informal arrangements with surrogates who, for a certain sum, agree to carry their child. Right after birth, the child is registered as the child of the donor-parents, a practice also common in informal adoptions.

In the last Congress, Manuel Villar, then a senator, filed a bill in the Senate which would have outlawed surrogacy, although I don’t know what that bill’s status is today, or if his wife, Sen. Cynthia Villar, has refiled it.

The transaction is still largely informal mainly because of the absence of a firm law. But couples resorting to surrogacy should take heed of a lawyer’s opinion, published in a legal blog, that under the law, the surrogate is considered the mother of the child.

“The law does not confer upon A and B (the donor parents) the right to claim parental right over the child that actually came from the womb of C (the surrogate) to be considered as their legitimate child, unless they resort to adoption,” says the lawyer-author.

Biologically, the child may carry the mother and father’s DNA, genes and traits (although some scientists say the surrogate’s genes may be present as well), but the law recognizes as mother only the woman who carried the child to term.