A Surrogate Family and the Law That Criminalized Them

16 min read
(Penkuro)

Not long after she was released from jail and given a suspended sentence for serving as a surrogate mother for foreign parents, Voleak* received a call from a familiar number. It was a Khmer-Chinese translator who worked for the surrogacy agency that had hired her in 2017, the year after Cambodia enacted a strict ban on commercial surrogacy.

Voleak, now 26, says she had felt connected to her non-biological son from the time the baby was growing in her womb halfway through her pregnancy, but her feelings became more intense as she first began raising the child in state custody, handcuffed to a bed in a hospital room before and after giving birth.

The translator told her that he was working with the intended father of the child, who would pay her $30,000 if she would give him the 2-year-old boy, whom Voleak is now required by Cambodian authorities to raise to adulthood under the terms of her suspended sentence. Voleak firmly refused to give up the child, she says, and changed her SIM card, cutting her off from the translator and the rest of the contacts she met from the years she was caught up in Cambodia’s underground surrogacy industry.

Two years later, her son is now living with her parents in a small home in Kampong Speu province, while Voleak and her younger sister are the only two working family members supporting their parents, a third sister and the siblings’ five children.

“If I gave birth and they just took him out [of the country], he might have had a lot better of a life in the future, but in the meantime I am happy I could look after him and never blame [him] that I have to do this work,” she says.

Though commercial surrogacy was unofficially and rapidly banned in Cambodia in 2016, questions remain about the future of the dozens of women who were paid to carry babies for would-be foreign parents, as well as the surrogates’ families, the children they birthed and the nation’s fertility care industry.

We just want to protect people, especially the children who are born.

Globally, surrogacy — the practice of women renting their wombs to clients for the purpose of carrying babies to term — is estimated to be a multibillion-dollar-a-year industry. Commercial surrogacy firms migrated to Cambodia after neighboring Thailand made it illegal for Thai nationals to work as surrogates for foreign couples in 2015.

In Cambodia, just as the industry started flourishing in an unregulated space, the government outlawed commercial surrogacy in late 2016, using the country’s anti-human trafficking laws and a slapdash legal directive to shut down the trade. In 2017, the government jailed an Australian surrogacy broker, a Cambodian nurse and a Cambodian administrative employee for falsifying documents and facilitating surrogacy, in a move seen as a show of the law’s force. Though surrogacy agencies began moving out of Cambodia that year, a number still operated underground, and more than 60 surrogate mothers and a handful of orchestrators were arrested in Cambodia throughout 2018 and 2019 for involvement in the industry.

In late March 2020, 32 of the arrested women were sentenced in the nation’s first trial criminalising those who served as surrogates, with convictions also handed down to two Chinese nationals and six Cambodians who were sentenced for their involvement in the industry.

The group of women had started working as surrogates after the government implemented its blanket ban on commercial surrogacy, which was heavily enforced throughout 2017, though Voleak says she did not know it was illegal until her arrest. The women gave birth while they were detained, and they were also ordered by the court to raise the children they were carrying for biological parents in China.

Voleak struggled through those early months while raising her son in detention in a hospital because she was bringing up the child without the help of her family. But now that she works and lives almost a two-hour drive from her family, who looks after the boy, she says she appreciates the early time spent with her son.

“When he was young he was a bit naughty, crying and not being easy, but I never got bored of him,” she says in an interview on the outskirts of Phnom Penh. “I only felt that this boy shouldn’t suffer with me in that situation.”

It is early July 2020, and Voleak has recently left her village for a new job as a security guard in Phnom Penh. Her 2-year-old son is pacing the yard, looking for his mother. Even though the child does not share their genes, the family feels attached to him, and both mother and grandparents say they could not imagine life without him now.

Voleak’s 6-year-old biological daughter suspects there is a difference between the two children. She points out her own dark curly hair, Voleak says, and asks why it is so different from the boy’s straight, jet-black hair.

But when the children’s grandmother gives them money for ice cream, Voleak’s daughter vaults her younger brother onto her back, and the two head off to buy a favorite snack together.

Illegal Without a Law

Though commercial surrogacy was made illegal in Cambodia, the country has yet to pass a long-awaited law on the practice.

Rather than wait for a law to be drafted, the government ordered an immediate halt on commercial surrogacy and then used the existing anti-human trafficking law to criminalize practitioners.

Chou Bun Eng, secretary of state and permanent vice president of the Interior Ministry’s National Committee for Counter-Trafficking, says the discussion among lawmakers over the country’s law on commercial surrogacy had been stalled by Covid-19, calling the global pandemic a much bigger crisis than surrogacy at the moment.

But when asked why the draft law had stalled even before the pandemic, Bun Eng says that she felt the text of the law had strayed from what she thought was the original intention.

“The objective of the establishment of this law is to solve the issue of surrogacy that’s linked with trafficking in children and persons, but once we drafted the law, it seems like it did not focus on that,” she says, without offering much explanation.

“We just want to protect people, especially the children who are born,” she says.

Later, Bun Eng hung up on a reporter before further questions about the content of the draft surrogacy law could be asked.

Why do we forget the rights of the child? … When we talk about the victim, that is the child.

The U.N. Committee on the Elimination of Discrimination Against Women (CEDAW) in 2019 called for Cambodia to stop punishing women who act as surrogates under criminal offenses, and stop requiring surrogates to raise the children they carried as a term of their release from detention.

“The Committee is particularly concerned that such an obligation creates an additional financial and emotional burden on women who are in precarious situations, which led them to act as surrogates in the first place, and that they face discrimination and stigma from their families and communities for having acted as surrogates,” the committee report says.

It also recommends Cambodia ensure anti-trafficking legislation is used to prosecute traffickers, and “not misused against individuals who are not responsible for trafficking offences.”

Bun Eng, however, is adamant that commercial surrogacy can be equated with human trafficking, and says the government can use its anti-human trafficking law to enforce the ban while surrogacy bill discussions were stalled during the pandemic response.

“They do not understand about the situation of Cambodia, and they don’t come and see,” she says. “If we look at the rights of women, why do we forget the rights of the child? … When we talk about the victim, that is the child.”

When asked whether biological parents who supply their egg and sperm would have some rights to a child carried by a surrogate, Bun Eng characterizes them as “offenders.” She notes that the government had offered parents who were caught in the midst of a pregnancy after Cambodia banned surrogacy an option to leave the country with their baby without penalty, but many biological parents had not taken it. The Cambodia Daily reported in 2017 that some parents feared they could end up in jail if they came forward to prove their case in the country’s courts.

“We believe that [biological parents] would understand, but if they do not understand, we have to educate them,” Bun Eng says.

‘Situations Beyond Surrogacy’

Dana Wallack, a consultant to the Cambodia-based NGO-CEDAW, which works to implement aspects of the U.N. convention on anti-discrimination against women, says discussions over the surrogacy law have stalled, and there are still unresolved issues related to international surrogacy and potential penalties for women who are serving as surrogates outside the law.

In an email, Wallack says she has not seen the latest copy of the draft law, but an older version had permitted altruistic surrogacy — in which the surrogate volunteers her services — for married Cambodian couples, who would need to adopt the child through the legal system in order to become its parents. Until then, the surrogate would be the baby’s legal mother.

Despite Cambodia’s strict ban on surrogacy, the country has sparse regulations regarding other fertility services.

Wallack says the draft law she has seen would create a committee to regulate assisted reproductive technology more broadly, but “there was no detail on how this might apply to situations beyond surrogacy.”

The 2016 directive that banned commercial surrogacy also banned commercial sperm donations, and requires clinics that perform in vitro fertilisation to receive permission from the Health Ministry.

Hok Khiev, the ministry’s legislative department director, did not explain how clinics would gain such permission, nor what procedures they could legally provide. He referred questions to the ministry’s hospital services director Dr. Sok Srun, who hung up on a reporter before answering questions.

Multiple attempts to contact Health Ministry spokespeople to clarify the legality of non-surrogacy fertility services were unsuccessful. There are at least eight companies offering fertility services listed in the Commerce Ministry’s business directory.

It’s just the lure of the money that people get [into] this, both the businesses and surrogates alike.

A representative for clinic First Fertility Phnom Penh reached via WeChat declined repeated requests for an interview, saying the company wanted to “stay low key”. A customer service representative with another agency, Fertility Clinic of Cambodia (FCC), said the company’s founders did not want to speak about regulation of surrogacy while the Covid-19 pandemic is ongoing, saying it “might not be a good time to discuss other things such as fertility and the regulation.”

Dominique de Ziegler, a France-based reproductive doctor and physician, says he served as a scientific consultant for FCC since the health center opened in 2015, adding that he has advised the clinic and tried to promote commercial surrogacy as a legal but regulated medical practice.

“I have myself tried to talk in Cambodia to say that surrogacy could be done legally and in a proper way, if you take the U.S. as an example,” he says, adding that France-educated practitioners led the debate over whether to legalize surrogacy in Cambodia. “Because Cambodia [was] a French colony, they are inspired by French law.”

Though he believes that FCC does not practice surrogacy, de Ziegler advocates for legalizing and regulating commercial surrogacy in Cambodia, arguing an underground industry is more dangerous to both the clients and surrogates.

“If surrogacy is properly controlled and properly done, it’s a good procedure that helps people, but [the government of] Cambodia didn’t want to hear that,” he says.

Recovering From the Ban

Gaurav Wankhede, the founder of the surrogacy agency Become Parents Group, says he had briefly operated surrogacy services out of Cambodia in conjunction with FCC in 2016 and 2017, mostly bringing embryos from Thailand into Cambodia after the former banned surrogacy in 2015.

Wankhede claims he has not facilitated surrogacy in Thailand and Cambodia after the two countries banned the practice, saying he uses a website, www.bangkoksurrogacy.com, to explain the ban in Thailand and refer people to countries where commercial surrogacy is legal.

The website lists Cambodia as one of nine countries where Bangkok Surrogacy has done business, and also says that when choosing a surrogate, she must be a resident of “a state or country which allows surrogacy.”

Wankhede says most prospective parents do a lot of research before deciding to move forward with commercial surrogacy, and as a result they usually figure out where the medical practice has been banned. But he notes that some companies and clients still try to operate in countries that have outlawed the practice, pointing to July 2020 arrests of gynecologists and brokers connected to surrogacy in Bangkok.

“If they’re doing [illegal surrogacy], it’s really foolish on their part, as they’re putting a lot of people [at] risk,” he says. “It’s just the lure of the money that people get [into] this, both the businesses and surrogates alike.”

Bun Eng, the anti-human trafficking official, says that some women had gone through Vietnam to give birth to babies of Chinese parents, with three women arrested in 2019.

Bun Eng acknowledges that the Interior Ministry is still investigating transnational surrogacy rings to find out if commercial surrogacy is happening in Cambodia, though she did not specify which countries were at the center, saying that all embassies have been warned that the industry is illegal in Cambodia.

“It seems we need to have a collaboration with the destination country, but due to the Covid crisis, it seems like the [investigation] process is stuck,” she says.

This year marked the first time Cambodian women were criminally sentenced for serving as surrogates, but they were released on bail after agreeing to bring the pregnancy to term and “raise the surrogate children as their own until the children are 18 years old.”

The women were released from detention in March 2020 and allowed to return to their home villages. Voleak’s parents say a representative from the Christian anti-human trafficking organisation Agape International Missions, which paid for legal representation for the women, checked in with the family to make sure the child was still in their care, but provided no financial or other assistance. The organization did not respond to multiple requests for comment.

The amount of money that a surrogacy client will pay would be 10 times more than what a typical tourist would spend in a country.

Bun Eng says surrogates who could not afford to take care of the children they birthed were told they could give them up to the Social Affairs Ministry, but no woman had taken the offer because she says they are largely attached to the children. No financial assistance from the government has been offered to the women, Bun Eng adds.

New Societal Pressures

For Wankhede, the concerns that pushed governments in the region to ban commercial surrogacy are misplaced. The fertility entrepreneur says that lawmakers are often resistant to medical advances, and that he does not understand the fears that surrogacy would breed exploitative labor practices.

When his firm could legally hire Thai or Cambodian surrogates, the women would receive between $10,000 and $20,000 for the pregnancy, well above the average annual income in the countries.  

“[Opponents of surrogacy] feel the local population would be taken advantage of, and that will only happen when a government puts up a restriction,” Wankhede says, arguing that women are harmed when authorities criminalize them under laws banning commercial surrogacy. “The amount of money that a surrogacy client will pay would be 10 times more than what a typical tourist would spend in a country,” he adds.

Voleak, however, was originally promised a total of $10,000 when she signed up to carry someone else’s child, but she says she only received $300 about three months into the pregnancy. Voleak’s mother says the family took out a $5,000 microfinance loan as Voleak started working as a surrogate, half of which went to Voleak for preparations to go to China for the birth, other family expenses and her then-husband’s business, while the other half was used by the parents to buy a truck and use it to earn money making deliveries in the area.

Both her parents and Voleak’s older sister are out of work, and they have to buy all the family’s food because they do not have enough land to farm, says Sophal*, Voleak’s father.

“The only good thing is that they’re now free, that [Voleak] can come back to the village, but about the economic situation, it’s twice as worse [as before],” Sophal says.

Even though Voleak and her younger sister were able to secure jobs, in a gated housing development and a garment factory, respectively, in June, Sophal says the family was especially hit by Covid-19. Both Sophal and his wife Neary had access to Cambodia’s IDPoor program, or social welfare benefits, but their membership expired and they have not figured out how to renew it, despite the government’s expansion of the program to fund between $25 million and $28 million per month as families struggle during the pandemic and related economic crisis.

Voleak is now working in the outskirts of Phnom Penh, without a labor contract, as a guard at one of the city’s many luxury housing constructions. After she lost a job at a garment factory, the woman says her employment options have been limited by her lack of an identification card, which is still being held by the Phnom Penh Municipal Court because of her suspended sentence. The government maintains monthly checks on her through local officials, she says.

She found her current job through her sister’s in-laws, and the work is frustrating and shameful, she says. She works seven days a week for $150 per month, and her job entails watching the construction site and inspecting workers to make sure they do not steal equipment. This requires her to pat down the mostly male workers, making her uncomfortable.

But now that she has left her husband over financial issues and is the single breadwinner for her two children, she feels a responsibility to them — which, for her 2-year-old son, is bound by the court.

“I miss both my kids, but because I don’t have a husband who’s responsible for the family or earns income to support the family. … I still need to get out and earn income,” she says.

“Otherwise they will not survive.”

*Names have been changed at the request of interviewees to protect the identity of the child and surrogate mother.

This article was produced by New Naratif and VOD, who have partnered to publish long-form journalism from Cambodia that empowers our shared community with news and information.

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