The surrogacy quagmire
Ignorance of a ban may leave pregnant women on wrong side of the law
MALIS* sits under her home in a remote village with her legs folded under her swelling belly. She’s six months pregnant, expecting a baby girl, and knows nothing about the child’s parents except that they are Chinese.
She also is unaware that, as of yesterday, she could find herself facing serious jail time for her role in an illegal surrogacy operation.
Though the “rent-a-womb” practice was outlawed in a snap edict in October 2016, the Interior Ministry named January 8 the deadline for a “surrogacy amnesty”.
Surrogate mothers who gave birth before that day and handed the baby over to its intended parents would avoid prosecution. Intended parents, meanwhile, were encour- aged to notify the Cambodian courts to gain custody of their child and be granted an exit visa through proper channels.
Parents, brokers and surrogate mothers connected to babies born after that date, however, would face legal action, the ministry warned, in guidelines officially disseminated to embassies in July last year.
Yet the banned practice is still continuing, and Malis, 35, is proof.
She already has two children of her own, 8- and 15-year-old boys. Part of her would like to have a girl, and sometimes
she entertains the fantasy of keeping the baby.
“I decided to [be a surrogate] because I did not have money. No one pressured or forced me – I decided by myself,” she said.
She has $4,000 worth of debt, after buying a house and land, while her old job at a garment factory paid just $153 a month. For agreeing to carry someone else’s child, she is promised $8,000.
Malis’s real name and location are being kept confidential to avoid legal consequences.
Reached yesterday, Chou Bun Eng, permanent vice chair of the National Committee for Counter Trafficking, said that a prakas would be issued soon detailing the punishment for anyone involved in surrogacy, pending a report from the Ministry of Women’s Affairs.
In the meantime, she said surrogacy still violated Cambodian law and would be prosecuted. In the absence of an official law to regulate the industry, participants could be prosecuted under Cambodian laws combating human trafficking, though surrogacy advocates have bristled at the false equivalence.
“The guidelines ban new cases of surrogacy [and perpetrators] will face legal action under the criminal code,” Bun Eng said.
“As the woman who gives birth to the baby, she’s the mother. And if she gives up [her child], she’s violating the law of a mother’s responsibility, and if she’s involved in selling her own infant to others, she will be punished,” she added.
Under the law, “a person who sells, buys or exchanges another person shall be punished with imprisonment for two to five years”. That prison sentence can rise to up to 15 years if the person is “sold” for the purpose of adoption, among other reasons, and again to 20 years if the victim is a minor.
“Those women who are pregnant are not guilty, but if they are pregnant and give up their right to motherhood, then she’s guilty,” Bun Eng said.
Under the same guidelines in which the surrogacy amnesty was announced were instructions for parents to register their intent for custodianship with the Cambodian courts.
Bun Eng said just 12 cases had been lodged by intended parents, out of hundreds of suspected pregnancies. As of late December, none had been resolved, according to Sous Vichyea Randy, deputy administration chief at the Phnom Penh Municipal Court.
Sok Veasna, a director at the Interior Ministry’s General Department of Immigration, said no exit visas for a baby born through surrogacy had been issued.
“We have not issued any visas yet, we are just waiting for the letter signed by the Ministry of Interior or Chou Bun Eng,” Veasna said on Monday.
Sam Everingham, of Families Through Surrogacy, said the low number of registrations through the court was unsurprising.
“I believe so few families registered with the government because of distrust of the Cambodian government and fears they would hinder rather than help the process,” he said, adding surrogacy agencies also were likely to discourage parents from registering.
While he was unaware of any parents still awaiting a birth in Cambodia, in such cases parents “tend to shift their surrogate to Thailand for the birth”.
“A number of parents have been able to exit with newborns via land crossings into neighbouring countries with their surrogate, which highlights the practical difficulties of implementing such guidelines,” he added.
Everingham said he was also aware of “foreign IVF [in vitro fertilisation] professionals in Cambodia still conducting IVF for surrogacy cases”.
The fact that surrogacy is continuing in the Kingdom, despite being banned for more than a year, came as no great shock to Putsar Village Chief Ouk Savoeun, in Takeo province.
Several women in his village have – and continue to – act as surrogates for foreign babies, he said yesterday.
“It still has not stopped in this village, although it is not open. Some of them disappear from the village for two, three or four months and then they come back pregnant,” he said.
He said it was difficult for women to keep the pregnancies a secret, but when ministry officials visited, surrogates hid in their homes or tried to escape notice.
“I believe that the women do not know about the law becoming strict and that they could be punished, because I still did not even know what is going on with the law,” he said
Ros Sopheap, executive director at Gender and Development for Cambodia, said the January 8 deadline was not enough time for surrogates – many of whom are impoverished, uneducated and living in remote areas – to get abreast of the changed circumstances.
“I disagree with this surrogacy business, but you need time to deal with it. They really have no choice . . . They agree to be surrogate mothers because they are poor,” she said. “I think the brokers would know, but the victims do not know about this [deadline]. If you punish the surrogate mothers, it is like victimising them twice.
“To punish the powerless, the poorest of the poor, is not the right way.” * Name changed to protect the mother’s identity