SURROGACY;   THAILAND;   CALIFORNIA

IN surrogacy, a woman agrees to become pregnant with a child she intends to give up to be raised by another person or persons.  If she provides the egg and is thus the genetic mother of the child, her role is sometimes referred to as “traditional surrogacy”.  If she is not the genetic mother, and the child she carries was conceived by in-vitro fertilization, her role is sometimes referred to as “gestational surrogacy”. 

By Thomas Fuller

The New York Times AUG. 26, 2014

http://www.nytimes.com/2014/08/27/world/asia/in-thailands-surrogacy-industry-profit-and-a-moral-quagmire.html#story-continues-1

PAK OK, Thailand — Soon after the first surrogate mother from this remote village gave birth, neighbors noticed her new car and conspicuous home renovations, sending ripples of envy through the wooden houses beside rice paddies and tamarind groves.

“There was a lot of excitement, and many people were jealous,” said Thongchan Inchan, 50, a shopkeeper here.

In the two years since, carrying babies for foreigners, mainly couples from wealthier Asian nations, quickly became a lucrative cottage industry in the farming communities around Pak Ok, a six-hour drive from Bangkok. Officials say at least 24 women out of a population of about 13,000 people have since become paid surrogate mothers.

“If I weren’t this old, maybe I would have done it myself,” Ms. Thongchan said. “This is a poor village. We make money by day and it’s gone by evening.”

The baby boomlet here was just one of several bizarre and often ethically charged iterations of Thailand’s freewheeling venture into what detractors call the womb rental business, an unguided experiment that the country’s military government now says it is planning to end.

In Pak Ok, at least 24 women have become paid surrogates.

Commercial surrogacy has been available for at least a decade in Thailand, one of only a handful of countries where it is allowed, and one of only two in Asia, making it a prime destination for couples in the region from countries where the practice is banned.

Officials estimate that there are several hundred surrogate births here each year, in addition to the foreign surrogates, including many hired by Chinese couples, who come to Thailand for the embryo implantation, then return home to carry out the pregnancy.

But a pair of recent scandals have focused scrutiny on the largely unregulated industry, raising ethical questions and prompting the government’s crackdown.

In late July, the Thai news media reported that an Australian couple who had paid a woman to carry twins returned home with only one of their children, leaving behind the other, who had Down syndrome. Pleas for assistance by the surrogate mother helped produce a sustained national outcry that was further stoked by comments by the boy’s biological father that were deemed insensitive at best.

The father, David John Farnell, told an Australian television program that he would have preferred that the pregnancy had been terminated. “I don’t think any parent wants a son with a disability,” he said.

He also said that he and his wife had told the agency in Bangkok that served as an intermediary to “give us back our money.”

The Australian news media raised questions about his fitness as a father after finding court records showing that he was convicted and imprisoned for 22 counts of child sexual abuse in the 1990s.

More recently, police raids on surrogacy clinics in Bangkok uncovered the case of a Japanese man who had fathered around a dozen babies through surrogates — the exact number is not known — whose births were only weeks or months apart. Last week the global police agency Interpol said it had begun an investigation into the motives and background of the Japanese man.

Commentators have lamented that Thailand, which already had a reputation for prostitution, was now becoming, as one television anchor called it, the “womb of Asia.”

Others described surrogacy as the exploitation of the weak and poor by wealthy couples from more developed nations.

“This is a symbol of moral erosion,” said Kaysorn Vongmanee, the head of the public health department in Pak Ok. “It’s a symbol that people are concerned above all with money.”

Thai officials say surrogates are paid about $10,000 for a successful pregnancy, more for twins, in addition to a monthly allowance of around $450 and free lodging in Bangkok, where the women are either instructed or choose to carry out their pregnancies.

In the surrogacy cases around Pak Ok, the commissioning parents were mostly from Japan and other wealthier Asian nations, Ms. Kaysorn said.

The surrogates, some of whom are still pregnant, fled to the anonymity of Bangkok last week when officials and a phalanx of the Thai news media descended on the area to publicize what they portrayed as a national scandal. The village is quiet now, with children and chickens scampering along the dirt road that winds along the edge of a steep, bamboo-covered mountainside.

Among the villagers, there is sympathy for the surrogates and anger at what is seen as a witch hunt by the authorities for women who took part in a practice that is not yet illegal.

“There’s nothing wrong with surrogacy — you are helping people who can’t have a baby,” said Pakson Thongda, 42, whose daughter twice sold eggs to a fertility clinic for about $1,000 each time. “I understand the feeling of a mother who really, really wants a child.”

The surrogacy business in Thailand has provided a low-cost alternative to the United States, the world’s largest paid surrogacy destination, and was an outgrowth of the country’s effort to promote itself as a destination for medical tourism. The Thai industry also benefited from regulations in India, which prohibit same-sex couples from hiring surrogate mothers. India is the only other Asian country where surrogacy is legal.

Commercial surrogacy has operated in a legal gray area. There are no laws banning it, but there are some hurdles. Thai law defines a mother as the person who gives birth, so in order for the biological parents to gain custody, the surrogate mother must renounce her parental rights — a concession that may require legal wrangling.

The police investigations and the pending law have left a number of foreign couples wondering whether they will be able to bring their surrogate babies home. One Australian couple, unable to complete the legal procedures for twins born in July by a Thai surrogate, have been raising funds on the Internet to help pay for the legal costs.

The authorities in Australia have requested that the Thai junta allow “transitional arrangements” before the law banning commercial surrogacy comes into effect.

The law, which the junta has vowed to pass soon through its rubber-stamp Parliament, would still allow surrogacy, but without payment. Surrogacy brokers and advertising offering surrogacy services would be banned.

The junta has not publicly explained its decision, but Sriamporn Salikoop, a senior Supreme Court judge, said the ban was needed to prevent exploitation of Thai surrogates.

“Giving birth to a human is not like breeding animals,” he told a Thai newspaper.

Thai Rath, the Thai newspaper that first published the news about the baby with Down syndrome, said in an editorial on Monday that the surrogacy law was well intended but likely only to push surrogacy “underground.”

“People will carry it out illegally and out of sight — and may resort to human trafficking or kidnapping to get children out of the country,” the paper said.

NOV 21

Posted by Surrogate Alternatives, Inc. 

In California, we already have very good surrogacy case-law, but with the passage of California Assembly Bill 1217, we now have new and improved – and positive – California legislation regarding surrogacy which goes into effect on January 1, 2013.

The good news is that the very strong case-law in California (which is surrogacy friendly and considered by many to be the strongest law in the country) remains unchanged. The current case-law essentially provides that intended parents in an assisted reproduction arrangement, whether or not biologically related to the resulting child, should be declared the legal parent of the resulting child. The current legislation in California under the Uniform Parentage Act defines the parent-child relationship as the legal relationship existing between a child and the child’s parents, and it governs proceedings to establish that relationship. Existing law provides that a party to an assisted reproduction agreement may bring an action under the Uniform Parentage Act at any time to establish a parent and child relationship consistent with the intent expressed in the agreement. Existing law also regulates the practice of surrogacy facilitators in assisted reproduction agreements, including surrogacy agreements.

The new legislation, however, provides additional guidance relating to the manner in which surrogacy agreements must be executed, when medical procedures can be commenced, and where parental establishment cases may be filed. Although some of the procedures outlined in the bill were already utilized by experienced assisted reproduction practitioners, they were not required by law. So, in essence, the new law creates clear guidance and codifies some best practices for the benefit of all involved. There may well be more we can do in California to further codify best practices, but the provisions outlined in the new law clarify for courts what constitutes a properly executed surrogacy agreement and they help protect all parties to the agreement—surrogate, intended parents and child—from potential exploitation.

In relation to Gestational Surrogacy Agreements, the new law:

Requires that intended parents and a surrogate be represented by separate legal counsel.

Requires notarization of gestational surrogacy agreements.

Requires the execution and notarization of an agreement prior to the administration of medications used in assisted reproduction or any embryo transfer procedure.

Requires the parties to a gestational surrogacy agreement to attest, under penalty of perjury as to their compliance with these provisions.

Provides that an gestational surrogacy agreement executed in accordance with these provisions is presumptively valid.

In relation to establishing legal parentage between intended parents and the resulting child, the new law:

Permits intended parents to establish parentage prior to the child’s birth.

Permits intended parents to establish parentage prior to the child’s birth and permits the filing of the parentage action in the county where the child is anticipated to be born, the county where the surrogate or intended parents reside, the county where the agreement was executed, or the county where the medical procedures were performed.

Requires that a copy of the gestational surrogacy agreement to be filed with the court as part of the parentage action.

Seals records of the agreement to all except parties except the intended parents, surrogate, their attorneys and the state Department of Social Services.

Last edited by SusanFrmLA; 11-25-2012 at 11:02 PM.

California Surrogacy Laws

The state of California is accepting of surrogacy agreements. Therefore, it may be referred to as a surrogacy friendly state. Although California has no statute that directly addresses the surrogacy process, the state's courts have used California's Uniform Parentage Act for the purpose of interpreting a number of different cases that relate to this procedure. 

California allows commercial surrogacy, as well as regularly reinforces contracts with regard to gestational surrogacy. In addition, the state makes it possible for all intended parents - regardless of their marital status and/or their sexual orientation - to establish legal parental rights prior to the actual birth of their child (or children), as well as without the need to go through proceedings for adoption. 

One of the most well known cases in California regarding surrogacy occurred in 1993. The case, Johnson versus Calvert, held that the intended parents as part of a gestational surrogacy agreement should be recognized as both the legal and the natural parents. 

In a gestational surrogacy situation, the surrogate is not the biological contributor of the egg, but rather the carrier of the embryo that is made up of the intended father's sperm and the intended mother's egg and is then implanted into the surrogate's uterus via in vitro fertilization. 

In the Johnson versus Calvert case, the court ultimately decided that the person who had intended to procreate - in this case, the intended mother who provided the egg - would be considered as the child's natural mother. 

A more recent situation in 2005 involved the California Supreme Court deciding three companion cases that concerned lesbian couples who had reproduced using surrogacy. In all three of the cases, the court held that through the Uniform Parentage Act, two women could in fact be deemed as the legal parents of a child who is produced via surrogacy.