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Couples who want babies but can’t have them naturally are increasingly turning to surrogacy instead of adoption. And in many countries, the business of providing surrogates is big business. Thailand was a popular destination until things went sideways last summer. Earlier this year, the new military led government banned commercial surrogacy for international couples. Thailand—as one legislator put it—does not want to be thought of as the “womb of Asia.” But the decision has left some families on the wrong side of the law. Bud Lake and his husband, Manuel Santos are two of the unlucky few. Their baby, six-month-old Carmen, was born in Thailand via surrogacy six months ago.

“We’re stranded here in Thailand,” says Lake, whose surrogate has reneged on her contract and is now demanding that the baby be returned to her. And according to Thai law, the baby belongs to her—leaving Bud, Manuel, Carmen and their son Alvaro in limbo. Alvaro was born via a surrogate in India, two years ago.

“We’re having problems with our jobs and financially, and all this is her fault. We’ve done nothing wrong here,” says Lake. “We’ve done everything by the book, we had an agreement, we commissioned a surrogacy and she agreed to be a surrogate. She received the monthly payments. She’s the one who changed her mind.”

And because she has changed her mind, Santos says, they’re now taking precautions to make sure Carmen isn’t taken from them.

“It was the lawyer’s idea we should move constantly so she doesn’t have to know where we live.  Because if she knows where we live she can go at one point to police and ask for the baby. She has all the rights now so she can take the baby,” says Santos.

“We’re having problems with our jobs and financially, and all this is her fault. We’ve done nothing wrong here.”

— Bud Lake

Carmen has no passport or the papers required to leave the country. And even though the US embassy has issued a consular report of birth abroad, Lake says, officials there say they can do no more. He says they were close to getting the paperwork—the surrogate signed the consent form that allowed Lake and Santos to take her from the hospital and they put Lake’s name on the birth certificate. But then the surrogate failed to show up for the last meeting at the embassy to sign the last bit of paper. So even though Lake is Carmen’s biological father-and even though her birth certificate says he’s the father—the family is stuck.

Some background now. When Carmen was conceived almost a year and a half ago–with Lake’s sperm and the egg of a donor—commercial surrogacy was booming in Thailand. Regulations of the industry were lax, if non-existent. Couples, both gay and straight, came here from all over the world to have babies at a fraction of the cost—and hassle—than in the handful of other countries like the US where commercial surrogacy is legal. Then came the case of Baby Gammy.

An Australian couple—a straight couple—commissioned twins from a Thai surrogate but balked when the boy turned out to have Down Syndrome. They took Gammy’s healthy twin sister home but left Gammy behind with his surrogate mom who was happy to keep him. The Thai media hit the story hard and people started poking around the dark corners of the business. It wasn’t long before they found an even more sensational story about a 26-year-old Japanese Johnny Appleseed who had at least 16 babies born to different Thai surrogates.

Mariam Kukunashvili runs Global Life IVF Clinics and Surrogacy Centers in more than six countries. Her company was involved in two of the surrogacies with the Japanese man. She wishes it hadn’t been.

“It’s very hard to say what was his intention. When our representative asked him, he said he wanted babies to win elections. I assumed this was a joke,” Kununashvili says. “Then we asked again, and his answer was more philosophical. ‘It’s the best thing in the world to make as many babies as possible and leave as many as possible after death.’”

When the man told the agency he wanted 15-20 babies a year, the agency cut ties with the man.  But the damage was done. Baby Gammy and the Japanese Johnny Appleseed were the tipping point for Thai authorities embarrassed about what Thai media called the “rent-a-womb” industry. So the new military government decided to ban commercial surrogacy and fast-tracked a law to do so through the military appointed interim legislature.

The law was approved in early 2015. No more commercial surrogacy and no more surrogacy for foreigners. But there was supposed to be a grace period for those who already had babies on the way. And that’s worked for most, but not for Lake and Santos.

“We had bad luck because all the surrogates are collaborating and are very nice,” says Santos. “They are friends on Facebook with surrogates, all the people we know, have a very good relationship, and I don’t know why we have this bad luck with ours.”

The surrogate, Patidta Kusongsaang, says she was duped. She took her story to the Thai media in March, with the help and guidance from a self-appointed guardian angel, Verutai Maneenuchanert who is a legal advisor to the Thai Senate. Speaking through an interpreter, Kusongsaang says she couldn’t read her contract which she claims was only in English. Then she got cold feet when she discovered that Lake and Santos were gay.

“I was begging them to see the baby but they didn’t allow me to see her. They treated me very badly and said I have no right to see the baby.”

— Patidta Kusongsaang

“First of all, they are not natural parents in Thai society. They are same sex, not like male and female that can take care of babies,” says Kusongsaang. “Second thing is, when I tried to contact them to visit the baby, they didn’t want to talk to me. And the third thing is, I was begging them to see the baby but they didn’t allow me to see her. They treated me very badly and said I have no right to see the baby.”

But Kusongsaang seems heavily coached by her advisor who often interrupts and interjects as Kusongsaang talks. And after one such exchange Kusongsaang came up with another reason for wanting to keep Carmen. “I worry if the baby goes with these parents, what will happen to her. On the news it says people sell baby parts or take stem cells to sell in the market. So I’m afraid many things could happen,” says Kusongsaang.

But when she talks about what it felt like being pregnant, there’s no coaching from the advisor. Kusongsaang’s voice cracks as she struggles not to cry.

“The relationship between the mother and the baby I carried for nine months,” she says, “even if it wasn’t my egg or sperm, was very special for me. We ate the same things, drank the same things, breathed the same air, and that relationship made me very, very happy.”

The advisor, Verutai Maneenuchanert says the commercial surrogacy business was wrong from the get go. She calls it human trafficking and calls Kusongsaang a victim even though she willingly entered into a contract and got paid well by local standards. Surrogates got about  $15,000  for carrying babies to term.

“Patidta is the only victim here, because they don’t allow her to see the baby. They see the baby as a product that comes from the supermarket.”

—Verutai Maneenuchanert

It seems as if everyone is a victim in this story: The commissioning parents, the surrogate mother and the baby, too. Maneenuchanert disagrees.  “I don’t feel sad for them,” she says. “Patidta is the only victim here, because they don’t allow her to see the baby. They see the baby as a product that comes from the supermarket. They’re only sad because their product has been damaged. And now they’re trying to intimidate her, tell her she’ll end up in prison if she doesn’t honor her contract”

Bud Lake and Manuel Santos deny all of this. They’re getting ready to fight for Carmen the only place they can—in a Thai court. They hope to show that they’re better parents to Carmen than Kusongsaang would be, more financially and emotionally stable.  Lake gives the example of a post on Kusongsaang’s Facebook page where she’s cradling a pistol.  He says he’s been encouraged by the meetings he’s held with Thai Social Services who seem sympathetic. Still, Lake says all the lawyers they’ve talked to say their chances of winning in a Thai court are less than ten percent.

“The reason they gave us such a low percentage is because, despite the fact there are temporary provisions in the new law that say commission intended parents can ask for their parental rights to be recognized in court, unfortunately it’s worded as husband and wife,” he says.

As for Lake and Santos, they’re not husband and wife. Lake thinks the law was written to deliberately exclude gay couples.  And he seems to be on to something there. Dr. Arkom Pradidsuwan is with the Thai Medical Council in the Ministry of Public Health.

“Thai law does not endorse same sex pair. And Thai law, legal couple is husband and wife, man and woman,” says Pradidsuwan. He says baby Carmen’s legal status belongs to Patidta Kusongsaang.

Santos says that’s not fair, because he and Lake are legally married, a fact recognized by many other countries. “We are married in the states, in Spain, in Europe and I respect the law, but they have to understand that everything changed in our (world) when all these things about surrogacy and the Japanese man and Gammy, but we don’t have anything to do with that,” says Santos.

And the thing that gets lost here—because of the Baby Gammy case and that of the Japanese Johnny Appleseed too—is that commercial surrogacy in Thailand has worked for many people, people who otherwise wouldn’t have been able to have children or afford to hire a surrogate. And it has worked for many surrogates too. Better regulation here—any regulation here—might have helped prevent both the Baby Gammy case and that of the Japanese Johnny Appleseed. But instead of regulation there’s now prohibition.

And where does that leave Bud Lake and Manuel Santos? Waiting. Lake says the embassy has told him their hands are pretty much tied.

“They’ve advised us that we need to follow judicial channels,” says Lake. “They’ve given us advice, they’ve lent an ear to listen, but from what they’ve told us, there’s really not much that they can do, that we have to follow the legal channels, that that’s our only option.”

An official at the State Department confirmed this in an email:  “U.S. citizens in Thailand are subject to Thailand law. Pursuant to U.S. law, the Department cannot issue passports to minor children without the consent of the legal parent/s or guardian/s.”

Mariam Kukunashvili—whose company handled this surrogacy, says she tried repeatedly to help Lake and Santos reach some sort of agreement with Kusongsaang.  But she says the couple wouldn’t listen. So now she’s given up. Lake and Santos say she wasn’t much help at all.

Now the surrogate, Patidta Kusongsaang, and her advisor have gone to the police and formally accused Lake of child abduction. He recently went to hear the charges but left Carmen at home just in case.

Lake and Santos say they’ll do everything they can to keep her. There’s no way, Santos says that they’re going home without Carmen.

If we have to move here and leave our families and work, we will do. But we will not leave Carmen. Because is not her daughter, is our daughter”

— Manuel Santos

“No, no no,” he says softly, shaking his head. “Because she’s our daughter. By heart and genetically. If we have to move here and leave our families and work, we will do. But we will not leave Carmen. Because is not her daughter, is our daughter” Bud Lake and Manuel Santos thought they’d be bringing their daughter home six months ago, shortly after she was born in January. Back then, they were excited at the thought of Carmen meeting the family especially Santos’ ailing grandmother, Carmen’s namesake.

She passed away a few weeks ago.

Production Notes:

This story was reported by Michael Sullivan and edited by Jim Gates. Jonathan Hirsch produced the sound design with assistance from Life of the Law’s Senior Producer, Kaitlin Prest. Ashley Cleek is our Managing Editor and Simone Seiver and Kirsten Jusewicz-Haidle handled post-production.

Our scholar advisor on this story was Martha Ertman, JD. University of Maryland School of Law.

© Copyright 2015 Life of the Law. All rights reserved.

  • Arnaud Lécuyer

    Wow ! I thought that sentences like “we paid her ! she’s ours, not her mother’s !” would only be heard a few centuries ago and in a context of slave trade.
    Apparently there are still people, gay or straight, who think that it’s perfectly normal to buy a human being and take a baby away from her mother against her will just because they are richer.
    This behaviour is disgusting.

    • BrittBrittRoss

      Sir, I believe you are missing the point. Despite the surrogate’s feeling of attachment to the baby she nurtured in the womb, this woman has NO biological claim to the baby. The egg was from a donor. She served as the “oven” so to speak. She should have considered the facts & done her research before agreeing to carry a child for anyone else. Now she has collected the money & wants the child, as well…

    • José Valente

      She is not the Baby’s biological mother, the fertilized egg was not hers she saw no problem with selling the baby then. Quite naturally.

      Mr. Lake, OTOH is the child’s biological father. So the only disgusting (there are other that are complex) thing is that you seem to have read this through and not grasped a single fact that is right. Even Ms. Kusongsaang is aware she is not the baby’s mother. Her legal advisor’s behaviour is also manipulative and disgusting in its own way but that may be a personal trait just as yours is being functionally illiterate. That’s not OK but at least there’s a cure for that. Go back to school.

      • Arnaud Lécuyer

        So you’re the kind of person who thinks that since I disagree with you I must be an ignorant. That’s a little sad don’t you think.
        Can’t you understand that you can’t just buy people like you would buy a car ?! You don’t subcontract pregnancy ! That’s inhuman !
        It is clear that the “parents” take advantage of the mother’s (yes, that’s a mother, not an oven, or a provider…) poverty to exploit her for their own selfish benefit.
        I mean, where does it stop ?! Would you buy a kidney from an indian kid just because you’re rich and he’s poor ?
        The women who carried the baby is not an oven, and the baby is not a roast chicken !
        I guess that you don’t mind that your IPhone is manufactured in Asia in conditions similar to slave labor so… if they manufacture your IPhone, they can as well manufacture your baby, right ?

        • David Veidt

          Just my 2 cents.1st: “since I disgree with you think I am an ignorant is never a good argument”One for you Arnauld. Except in this case you didn’t quite grasp all the facts. I still think you believe this lady to be the mother of the child. I would never resort to surrogate pregnancy myself though being straight but infertile my wife and I have considered askingsomeone that was a member of our family andwould still be around the childthe rest of her life and part of the familyto. Cons outweighed the prossowe decided not tohave children. We at least had a choice. Mr. Lake and his husbandclearly thought they had a choice too We were right they were mislead.
          Since your putative kidneys and iPhone moral dilemmas were not posed to memy 2nd cent is that a kidney is not a baby and I never understood what’s the use of an iPhone and never had one. Slave labor in Asia is a real problem but countries suffering most from it (Bangladesh, Nepal Myanmar, Laos, Sri Lanka, Vietnam) tend to have a major problem in textile industries. Of those countries only Vietnam (that I am aware of) manufactures useless, pointless, idiotic electronic gadgets (almost entirely for export to Japan, Australia, Singapore and Taiwan – all of which also produce them but more expensively) but even there slave labor is a much worse problem in other industries given their much larger size.
          Slave labour is an aberration. A biolgical father and biological (even if anonymous) mother having a child sequestered bya third party is too complex an issue for the likes of you and me to be talking about here. iPhones should be abolished but human organ trafficking is an aberratio that should be abolished before that. The fact that you know so much about iPhones leads me to make assumptions about you: you are anti-capitalist (except when it suits you) and you are not a fundamentalist Catholic (or Christian in general) but are not above using some Catholic, Evangelical and Pentecostal lines of non-reasoning when it comes to matters you feel strongly about. Am I wrong? Possibly. Maybe Mr Valente doesn’t have an iPhone either…

          • Arnaud Lécuyer

            I am perfectly aware of the fact that the “lady” (you see… you can’t even find a name for her…) did not provide the ovum.
            So what ? This is still selling and buying a human being.
            By the way, I am definitely a capitalist !… but I know that money can’t buy everything, or at least shouldn’t buy everything.
            Also yes, I am not a religious person… not at all… but I don’t need religion to have a moral.
            The way the two “parents” talk about the transaction in the podast is so like “I am rich, she’s poor, I want to buy a baby, so just sign here and here, and carry it for me for 9 months”… They say “I wan’t a baby” just like they probably said “I want a poney !” when they were kids.

  • navriana nyanmusas

    I personally think that if she gave the baby away based on a contract she is obligated to upstand. But be it legally or not she sold her child. So i believe she sold her right to the child as well.

  • I’m sorry I cannot accept surrogacy as a means to have a child for yourself. No matter, how we look at this it creates a very unequal relationship between the buyer and the surrogate mother. The surrogate mother is no longer a human being in this contractual relationship. She is merely a womb, a vessel. Any thought that she has feelings, desires is out the door.
    Reminds me of one of Margaret Atwoods’ novels, where she writes of a society where women become slaves as surrogate mothers.
    If you value the role of woman, her capacity to give life, then no dollar value should be placed on this process. And her right to keep a child, if she has allowed the child is grow inside her.
    As for couples or even a single person wanting a child but can’t conceive; accept what cannot happen. Accept it, no matter how hard it may be.
    Consider adoption or giving to enrich lives of children through your job, volunteer work.
    Don’t get mad at me: there ALOT of things we can’t control. Can I change the colour of my skin to Asian to white…?

  • Given that I’m one of the people surrogacy is aimed at (I’ve a medical condition that makes pregnancy unlikely, if not outright dangerous), I still don’t find myself agreeing with it. While I’m sure that the families who seek it have the same love for children that I do and the same yearning for a little boy or girl… just because my genetic material isn’t passed on doesn’t make a child any less my own. I would rather adopt a child who needs a better life than the one they’ve got than ask another woman to bear one for me.

    I’m not condemning anyone who would choose surrogacy over adoption. I just feel that the natural bond between mother and baby should not be subverted or set aside for profit. And surrogacy (alongside poor sexual education, religious ideologies, and economic hardship) only increases a population that is already having a massive negative impact on the world around us. Adoption gives homes to young boys and girls who would otherwise grow up in the dreaded, “System.”

    As a global population we should be focusing on social reforms so that women like Kusongsaang aren’t put in positions where they have to consider being a surrogate. On the other side of the coin, those who seek a surrogate should ask themselves, “Am I doing this for the (yet unborn) child, or am I doing this for myself?” It’s heartbreaking to not be able to have your own –I know, I’m with you on that boat– but there ARE alternatives.

    Family is family, regardless of biology.

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