Stranded and Stateless: International Surrogacy’s Legal Nightmare

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(Wikimedia Commons)

(Wikimedia Commons)

For the past month, international media attention has focused on the story of Gammy, a baby boy born to a Thai surrogate mother for an Australian man (the baby’s genetic father) and his wife. Gammy was diagnosed with Down Syndrome at an advanced stage of the Thai surrogate’s pregnancy and suffers from a heart and lung condition, and it seemed at first that these issues were factors in the decision of the Australian couple to abandon Gammy but take his healthy twin sister. Then the story became more confused. The Australian couple claimed to be unaware that Gammy existed, which the surrogate mother denied was true. Next, it emerged that Gammy’s father had accrued 22 child sex-offense convictions. Tired of the media saga—and likely still reeling from an earlier international incident involving a stranded surrogate child—the Thai government responded by unilaterally banning international surrogacy, leaving in a precarious position any surrogacy arrangements currently in progress. The Australian government is aware of 50 such cases in Australia alone and, because surrogacy is illegal in three Australian states, there are no doubt more nervous Australian couples than this number reflects. If one then considers parents in other countries also using surrogacy arrangements, the Thai government’s declaration has spawned a legal nightmare just waiting to be born.

Gammy’s story, however, is not new. Surrogacy is a road to parenthood increasingly pursued by couples who are gay, elderly, infertile, or otherwise unable to conceive a child. While some (indeed, most) international surrogacy arrangements proceed without difficulty, many do not. And when such arrangements do go wrong, they go very badly wrong. What, then, are the issues at play? In the case of Gammy, they include potential exploitation of the surrogate mother and failure to complete the agreement; the surrogate claims not to have been paid, and the unhealthy twin was abandoned. There are reports that the Australian couple demanded their Thai surrogate abort Gammy following a scan that revealed the baby would be born with Down Syndrome. There are also issues of commodification as well as concerns over the Australian couple’s fitness to raise the child.

The main issue in instances of surrogacy arrangements is generally parenthood and, therefore, citizenship. While this difficulty fortunately did not arise in Gammy’s case, many parents who enter into overseas surrogacy arrangements find that the resultant child is born into a nation whose legal system defines “parent” differently than their own. Had Gammy been born in India, a popular international surrogacy destination, Australian law—which is shared by most Western countries—would consider the surrogate to be the child’s mother. In such a case, the Australian couple would have no legal relationship to the child, as it is the mother who gives birth, regardless of the father’s identity, who is considered that child’s parent. In such a situation, the Australian couple must therefore adopt him. Put simply, the child would have Indian parents, Indian citizenship, and would therefore need to be adopted in order to complete the intended arrangement . Indian law, on the other hand, would consider the Australian couple to be the parents and, therefore, hold Australian citizenship. Since one nation cannot impose the citizenship status of another country on a child, the child is stateless. Moreover, under Australian law, the couple could only adopt the child if the child were resident in Australia at the time of application. This creates a new problem. The child would be unable to get to Australia because he would be unable to get a passport or exit and entry visas without citizenship of some kind; travelling with adults of no legal relationship to him would begin to look like kidnapping at best, and trafficking at worst. The couple would have to either seek governmental help or engage in more creative ways to return home with the child. The first is expensive and time-consuming; the second runs the risk of incarceration.

Thus far, states have been doing their best to ignore the complexities of the issue, but this approach cannot last as more and more instances of stateless children or botched surrogacy arrangements like Gammy’s make international headlines. National governments have, essentially, four options in response to this problem moving forward. First, they could continue to bury their heads in the sand. Their citizens have chosen to enter into arrangements overseas that are not permitted in their own country, thereby forfeiting the possibility of governmental help. Israel has recently announced such a policy and, while the European Court of Human Rights recently branded this decision a breach of human rights in the case of the French surrogate-born Mennesson twins, the remedy for the children was monetary only. Second, the state could prosecute parents for entering into these arrangements. This approach has been taken already in France, and is currently under consideration in Australia. Third, states could accept that their current laws surrounding international surrogacy are insufficient, and consideramendment. Fourth, states could ignore the letter of the law entirely and cease to enforce statutes related to surrogacy arrangements. Courts could turn a blind eye, pretending, for instance, that the money for a new house and an overseas holiday was not, in fact, payment for illegal surrogacy but was instead a permissible “reasonable expense.”

None of these options seems appealing, until one considers the uncertain fate of Gammy and other children of surrogate mothers like him who have been abandoned not only by their would-be parents but by the international legal system as well. These children will be the individuals most severely impacted by states’ decisions regarding surrogacy law. Most surrogate babies are not as lucky as Gammy, who, because of the media frenzy surrounding his case, is now being raised by his Thai surrogate mother with the help of $240,000 in donations for medical expenses. Many abandoned surrogate children instead end up in orphanages while their desperate parents are driven home by expired visas and the mounting costs associated with the legal and political battles they face as a result of turning to surrogacy. Others will run into difficulties later. The Mennesson twins, for example, are teenagers; once they turn 18 and are considered independent of their parents, their statelessness will render them unable to vote, find legal employment, or remain in France.

International surrogacy is not an issue that shows any signs of going away. It is too easy for parents with no other recourse to find clinic in nations like India, which make low-cost, results-guaranteed surrogacy arrangements available. Ignoring the issue is no longer a sustainable option. Regardless of the approach states decide to pursue in response to this growing issue, the best interests of the children involved must be their paramount consideration.

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Debra Wilson

Dr. Debra Wilson is a Senior Lecturer in Law at the University of Canterbury in Christchurch, New Zealand. She is currently a Fulbright Visiting Scholar based at the Centre for Australian, New Zealand and Pacific Studies at Georgetown University, where she will be teaching a course on international medical law, ethics, and public policy.

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