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.”
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.
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.
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