It is reported that a gay couple have gone into hiding in Bangkok with their child born through a surrogacy agreement, after the surrogate mother of their baby refused to get a passport for the child, going back on their previous agreement.
Whilst at this point, details of the case have not been confirmed, it is suggested that her reason for going back on the surrogacy agreement is that she objects to the child being raised in a same-sex household, stating she does not consider the intended parents, both men, to be an "ordinary couple."
Gordon Lake and Manuel are afraid that Carmen, their second child, will be taken away from them now that the Thai surrogacy industry has been banned, and following the surrogate’s apparent withdrawal of her consent.
Surrogacy Laws in Thailand
Before the 2014 Thai coup d'état, which happened whilst Carmen was in the womb, Thailand had a well-established surrogacy industry, which was used by many intended parents from around the world. But last summer, following some surrogacy scandals, the law was changed and commercial surrogacy was made illegal. The laws also stopped foreign citizens from entering into surrogacy arrangements in Thailand.
Thailand does not recognise gay marriage. When the surrogate mother – who was not biologically related to baby Carmen – found out she was not doing it for a heterosexual couple, she said she was worried for the child’s wellbeing.
Whilst, in many countries, being raised by a same-sex couple would not be considered a valid welfare concern, it remains to be seen how the Thai courts will approach her objections. The case does however demonstrate the importance of the surrogate giving consent, and the complications which can arise when consent is either refused or withdrawn.
Mr Lake disputes that the surrogate did not know the couple were gay throughout the arrangement. He claims he was upfront about his sexuality and his marriage with the surrogacy agency who facilitated the birth of Carmen, who is biologically his and an anonymous egg donor's. The agency reportedly backs up Mr Lake saying that the surrogate knew they were gay parents from the start because the contract was bilingual in order to ensure all parties could understand it.
International Surrogacy Agreements
Like many parents who have entered into international surrogacy agreements, Gordon and Manuel have found themselves in a highly complex situation. Children having no legal parents and becoming stateless is sadly one of The Most Common Problems in International Surrogacy Cases.
There are conflicting laws and major cultural differences between different countries that need to be considered when entering into an international surrogacy agreement. So it is always best to speak with an expert Surrogacy Solicitor as early as possible in order to make the process run smoothly.
This is undoubtedly a highly complex case with the law in Thailand changing as the baby was inside the surrogate mother’s womb, adding to an already complicated legal framework. Couples must ensure they have a clear understanding of the rules surrounding surrogacy in both countries if entering an international agreement and should beware of arrangements based on good faith as they can fall down if the parties fall out.
Cara Nuttall is a Senior Family Law Solicitor at Slater and Gordon Lawyers UK
Slater and Gordon are experts in the laws surrounding international surrogacy. If you need to speak with a child law specialist about your surrogacy agreement you can call us on freephone 0800 916 9055 at any time or contact us online.