Baby Gammy’s rights are human rights that we all have

The rights that baby Gammy has are those of universal human rights, and demonstrate why the rule of law is essential when surrogacy is undertaken. Those undertaking surrogacy in a lawless vacuum do so with their fingers crossed, all the while risking something terrible happening. That something terrible happened in baby Gammy’s case. The whole disaster of his surrogacy arrangement could have been avoided by simple steps, that would have protected his and his sisters, and the surrogate’s human rights.

To recap- for those who have been living under a rock- baby Gammy was a twin with a baby girl in his Thai surrogate mother’s uterus when it was discovered that he had Down’s syndrome. The surrogate, without it being explained why she needed to abort, was asked to abort baby Gammy. She refused. The intended parents were Australian. It has been unclear from the media coverage, principally in Fairfax, from what State the intended parents came from. If they came from Queensland, New South Wales or the Australian Capital Territory they would have committed a criminal offence- as those jurisdictions make it an offence to enter into or to offer to enter into a commercial surrogacy arrangement overseas, as I have written about many times. (Queensland also makes it an offence to make payment under a commercial surrogacy arrangement.)

Following the surrogate’s refusal to abort, she gave birth to baby Gammy and his sister. The surrogate was persuaded by the Australian couple, according to the story, to lie in exchange for more money (which was never paid) to enable the daughter to leave Thailand for Australia. The couple refused to take baby Gammy, who was left behind in the care of the surrogate.

Not only did baby Gammy have Down’s syndrome, but he also had a congenital heart condition. The surrogate was unable to pay for the operations required to look after him. Thankfully, following the story in Fairfax and other media, a public appeal has now raised a considerable sum for baby Gammy.

What the parents did in picking and choosing and not taking one of the children was not illegal in Thailand. However, it was morally indefensible, and no doubt is one of the reasons for the crackdown in Thailand on all forms of surrogacy for foreigners- which may have a terrible outcome for already pregnant surrogates, the children and the intended parents concerned.

Until the crackdown, it was apparent that Thailand had no specific laws concerning surrogacy. Thailand had mooted changes since 2010, but nothing had happened- until now. 

Quite clearly, when surrogacy is going to be undertaken, wherever it might be, there are some basic parameters:

• The human rights of all concerned are paramount: the intended parents, the surrogates, their partners, any egg donors and their partners, and above all the children.
• There should be no exploitation of anyone in the process. Run well, surrogacy is one of the most magical and amazing of all human journeys.Recently for example I saw a proposed contract from the Ukraine that had a mandatory condition that required the surrogate to have a birth by Caesarean section. Disgusting. Did no one there think that the surrogate had human rights?
• Clear laws should be in place regulating surrogacy. In the United States for example, surrogacy has been in place for over 30 years, and it is not properly suggested that there is exploitation of surrogates, intended parents or children there.
• Children should not be split. While the focus, quite properly, has been on baby Gammy and the surrogate, there has been no focus on what impact there will be on the little girl, who will in all likelihood never ever know that she has a brother, and whatever fate happened to him.
• There should be thorough counselling of all concerned before the surrogacy  arrangement is entered into. In Australia there are very very good fertility counsellors who have great knowledge and wisdom when dealing with surrogacy.
• All concerned should get independent legal advice before they enter into their surrogacy arrangement. I was shocked, but not surprised to read a report last week that many Indian surrogates were not give a copy of the contract that they had entered into.
• Those who undertake surrogacy overseas need to get legal advice in their home country before venturing overseas for surrogacy. I have been concerned for a long time about intended parents who venture overseas working out their own arrangements- and then seek advice from me after it is all said and done. These intended parents may have put themselves in peril. For example, I remember when Mexico through Rudy Rupach was touted as the new El Dorado for surrogacy. I sought to persuade (I hope successfully) any of my clients who were silly enough to go down that path. Aside from the legal issues in Australia, I was concerned as to possible exploitation of all concerned, and whether the babies could make their way back to Australia. My fears about Mexico were unfortunately confirmed.