With commercial surrogacy now banned in India, Nepal and Thailand, the enormously lucrative industry is moving into Cambodia. However, with its legal and ethical status murky, potential parents are being warned to stay away

Any day now, Cambodia’s first baby conceived in a test tube and implanted in a rented womb will be born in a Phnom Penh maternity ward.  

The names of the intended parents are not known, nor that of the local surrogate. It is not known which agency is being used, or who and how much was paid.

In fact, nobody really knows if the procedure is even legal in Cambodia.

Recent media reports have claimed that the Ministry of Interior intends to treat surrogacy as a form of human trafficking, making it not only illegal but punishable by a prison sentence.

But speaking this week, Health Minister Mam Bunheng said that the matter had yet to be decided.

“Until now, we don’t have a law to ban or regulate surrogacy and we are discussing together with the Ministry of Justice to regulate the industry to avoid problems, but we haven’t finalised the result whether it will be considered human trafficking or not,” he told Post Weekend, adding that the government was currently working on a law on IVF and surrogacy.

The billion dollar trade

With thousands of would-be parents worldwide willing to spend big for a chance at becoming mothers or fathers, commercial surrogacy has the potential to be a hugely lucrative trade for developing countries. Options in richer countries are extremely limited and costly: in California, one of the few jurisdictions worldwide where surrogacy is legal, it costs upwards of $120,000 a pop.

Sam Everingham, director of Australian-based advocacy organisation Families Through Surrogacy and the father of two surrogate baby girls, said there is a lot of fear and concern amongst intended parents about using surrogates in far-off locations.

“But these parents are desperate in the sense that they don’t feel like they have very many options,” he said.

“So they’re willing to risk $50,000 or more in the hope that it will work out.”

But even in the developing world, the number of countries where surrogacy is currently legal is dwindling. India, Nepal and Thailand all shut down their once sizeable industries over the course of 2015.

Thailand’s crackdown came on the back of two scandals.  

The first was the revelation that an Australian couple had left ‘Baby Gammy’, who had Down syndrome, behind with his surrogate mother after taking home only his twin sister.

Around the same time, Interpol began investigating a Japanese man who had fathered 16 children to Thai surrogates. He claimed his motives were benign, while others accused him of running a “baby factory”.

It was in the wake of these crackdowns that agencies such as New Life Cambodia, Cambodia Surrogacy and New Genetics Global started the Kingdom’s first surrogacy programs; organising for donated eggs to be fertilised with clients’ sperm in local labs then implanted into surrogate mothers’ uteruses.

More than a dozen other surrogacy agencies – most of which previously operated in Thailand, India and Nepal – have begun offering services in Cambodia, and at least two more IVF clinics have been established to carry out the procedure for them.

Their motivation is clear.

Hor Samnang, who in September 2014 started Cambodia’s first in vitro fertilisation programs at the Fertility Clinic of Cambodia, said that if legalised, commercial surrogacy could be worth $500 million or $1 billion per year to the Cambodian economy.

“[It would not just benefit] my clinic,” he said. “It’s for Cambodia. [The intended parents] come for the procedure with other clinics, too. This money goes to tourism, their flight, their food, accommodation as well,” he said.

Estimates of the worth of the Indian industry at its peak ranged up to $2.3 billion per year.

Families Through Surrogacy’s Sam Everingham, who visited Cambodia to investigate developments here last year, said more than 100 families had signed up for surrogacy services and the first babies were due “around now”. With contacts in the industry, he was able to get inside information.

“The first transfers occurred in April to Chinese intended parents,” he said. “Then the Australians, Europeans and Americans have come later.” 

In Cambodia, the customers pay upwards of $30,000 for each pregnancy with the surrogate receiving up to $10,000, according to documents obtained through surrogacy agency websites.

Everingham said that while some of the surrogates were Cambodian, most were Thai women who had been signed up while surrogacy was still possible in Thailand.

“Because there’s a surfeit of Thai surrogates recruited, they are being shipped into Cambodia for embryo transfer then back into Cambodia for birthing, so it’s far from an ideal arrangement,” he said.

Everingham said it was all part of a rush to cash in on the unregulated Cambodian market before it was closed.

“It’s a case of making hay while the sun shines. The industry in Cambodia has a feeling that surrogacy will probably have a year in Cambodia before it gets shut down,” he said.

“Because the three major markets – India, Thailand and Nepal – have all been shut down to foreigners, there’s now huge pressure on the Cambodian market to take up the slack.”

Behind closed doors

At the moment, the industry players know they are operating in a grey area. Their response is evasion, or flat out denial of their operations.

This week, attempts by Post Weekend to contact numerous agencies went unanswered. Intended parents were likewise unwilling to talk. The European Fertility Clinic and First Fertility, Phnom Penh – both mentioned as local partners on the websites of different surrogacy agencies – flatly denied they offered surrogacy services.

Hor Samnang from the Fertility Clinic of Cambodia also denied that his clinic was already actively involved in commercial surrogacy.

“We don’t recruit surrogates, we don’t find intended parents,” he said.

He conceded the Fertility Clinic of Cambodia had provided IVF services to a handful of surrogate cases for New Life Cambodia and New Genetics Global, but he claimed he didn’t know whether the surrogates had been paid.

“The [surrogate and intended parent] have their agreement without the knowledge of FCC. We just carry out the procedure.” 

Griffith University’s Patricia Fronek, who specialises in adoption and surrogacy, told Post Weekend via email that it was unacceptable for an IVF clinic not to make inquiries into the circumstances of its clients.

“And it is a good example of the problems and risks to children and surrogates,” she said.

Fronek said there were a variety of issues IVF clinics should address when dealing with surrogate cases.

They included transparency in relation to profit; quality of medical care; accurate record keeping for children who may later wish to search for information on surrogates and donors; truly informed consent of surrogates; and proper assessments for commissioning parents – including police and child protection checks.

“There have been reports of falsification of records and abandonment of disabled or ‘extra’ children and commissioning parents suffering fraud and financial abuse in some countries,” she said.

“So in my opinion, all these issues and more would require safeguards.”

Everingham said regulation of any potential Cambodian industry was possible and needed.

He said laws should mandate adequate neonatal care for premature babies, screening for surrogates to ensure they have completed their own family and are psychologically able to give up a child, education for surrogates on the implications, legal protection for parents or surrogates (especially in cases where one party changes their minds) and provisions for surrogate children to contact their surrogate and/or donor as they grow up.

Ethical examination

Fronek said the issue of whether commercial surrogacy should be allowed at all was complicated and depended on how “commercial” was defined.

“I think surrogacy is one of those phenomena where technology advances before knowledge generation and ethical examinations,” she said.

“On one hand, proponents see surrogacy as comparable to IVF – as a medical procedure that does no harm and faces unnecessary legal barriers. However, it is more than a medical or technological procedure – it is also biological, social and psychological and affects multiple people, not the least the children.

“There are many ethical and social issues and not enough research or knowledge.

“Lobbyists have been pushing hard for commercial surrogacy to be introduced into Australia for a long time. Many commentators are seeing this as a way of controlling abuses overseas (babies, surrogates and commissioning parents). I do not think it is that easy. Profit and commercialisation should never be mixed with children in my opinion.”

And despite the financial imperative, there remains political and moral opposition to the surrogacy industry from within Cambodia as well.

CNRP lawmaker Son Chhay, who opposes any kind of surrogacy as “unnatural”, said he didn’t think Cambodia would ever legalise the practice and planned to write to Prime Minister Hun Sen urging the government to outlaw it immediately.

“This is a Buddhist country, and having a woman carry another child is contrary to Buddhist principles,” he said. “Whoever gives birth to a child becomes its mother and it’s her obligation to care for it.”

He said the industry might be able to stay out of the public eye for a while but eventually scandal would strike and the government would be forced to act, adding that in the meantime, the authorities would bleed all involved of cash.

“The public will find it unacceptable,” he concluded. “When a mother does not want to give up a child, people will support the woman.”

But the anonymous women now in the late stages of carrying the first generation of Cambodian commercial surrogate babies will be praying that everything goes to plan over the next few months. With no legal framework in place to monitor the transaction, they’ll have no one to turn to if it doesn’t.

Buyer beware

The legality of surrogacy arrangements in Cambodia remains extremely murky, and intended parents have been warned they run a high risk of not being able to take surrogate babies home or even being charged with human trafficking and jailed.

Surrogacy agencies claim that when a surrogate baby is born, the genetic father will be put on the birth certificate, which along with a signed agreement from the surrogate mother and a DNA test will be enough for the child to get a foreign passport. They also claim that human trafficking laws do not apply to surrogacy cases.

However, Australia’s Department of Foreign Affairs has warned citizens not to take that advice at face value.

“Extreme caution is exercised by us in cases involving surrogacy arrangements that are entered into overseas, so as to ensure that Australia’s citizenship provisions are not used to circumvent either adoption laws or other child welfare laws,” a departmental spokesman said.