The nature of transnational surrogacy, where an intended parent seeks a woman to carry their baby internationally, allows people to circumvent national laws.
Anong*, from Thailand’s northern Petchaboon province, was 25 when she decided to be a surrogate mother for the first time.
“I was a surrogate in 2013 and 2018 … [I] was hired by a couple from a foreign country,” she said, adding she needed to pay off her debt and looked online for a surrogacy agency that would help her.
Thailand was once an international hub for surrogate mothers, before the practice was banned in 2015.
But instead of putting a halt to surrogacy, Thailand’s ban resulted in surrogacy practices moving across borders to avoid breaching regulations.
“My second time [being a] surrogate, once again, I was hired by foreigners,” Anong told researchers.
“This time I went to Laos for the embryo transfer and came back to carry my pregnancy in Thailand.
“Around 38 gestational weeks, I flew to China … the intended parents’ country, to give birth.”
Women in low-to-medium-income countries are often targeted by intended parents from high-income countries for a range of reasons, including the ability to circumvent national laws and financial motivations.
Research found restrictions, prolonged processes and a lack of resources to access domestic surrogacy treatments are the main motivators for intended parents.
Large lump sum payments, particularly after considering exchange rates, are one of the motivating factors for surrogate mothers.
The 2015 baby Gammy scandal — where a Thai surrogate claimed the intended Australian parents abandoned one half of their twins because he had Down’s syndrome — became an international scandal and resulted in a ban on commercial surrogacy across the country.
The closure of Thai fertility clinics moved commercial surrogacy to Cambodia before it became criminalised under human trafficking laws, carrying a 20-year sentence.
China and India soon followed, moving demands of surrogate mothers to Laos and Myanmar, where they remain unregulated, putting the health of hundreds of women and their babies at risk of lifelong health impacts and human rights violations, such as trafficking.
“[There] was not much opportunity to be a surrogate during the pandemic,” Hathai* told researchers.
“Since the border opened, I was contacted by a Chinese clinic to be a surrogate.”
The nature of transnational surrogacy, where an intended parent seeks a person to carry their baby internationally, allows people to circumvent national laws and places women and children at risk due to a lack of national regulations and protection.
Restructuring domestic or national surrogacy laws could help to protect the influx of intended parents seeking commercial surrogacy overseas.
While altruistic surrogacy is ideal, it may not be realistic for many — it’s a big ask for a woman to carry a baby she will have to eventually give up.
Increased regulations and support, instead of outright banning commercial surrogacy locally, could prevent the trickle effect, or people from seeking surrogate mothers in low-to-middle-income countries.
Health literacy and legal support, both from the government and not-for-profit sector, can also better support surrogates who are often exploited due to the promise of money without understanding the depth of the consequences.
Taxing intended parents for the return of a child by an international surrogate can also encourage intended parents to think twice before proceeding with the transnational commercial surrogacy arrangement due to the extra costs.
Better support for intended parents who seek a domestic surrogacy arrangement could help prevent people seeking overseas surrogates and stop the chain of commercial surrogacy.
The power imbalance between transnational surrogacy agreements is significant — women in these arrangements are often at an extreme financial, social and legal disadvantage.
Punishing those who are already in vulnerable positions will not make the situation better and neither will banning surrogacy outright.
*The experiences of women mentioned in this article are real, but their names have been changed to protect their identities.
Dr Jutharat Attawet is a lecturer in the Faculty of Health at Charles Darwin University. Her research focuses on surrogacy, diversity inclusion and equity, public health, health promotion and health/social policy.