A Thai Surrogacy Case, With A 6-Month-Old Girl Caught In The Middle

Manuel Santos, from Valencia, Spain, is feeding his daughter, Carmen, a 6-month-old who was born to a surrogate in Thailand.

Father and daughter are in a temporary apartment in Bangkok, accompanied by Santos' husband, Gordon Alan "Bud" Lake III, from New Jersey, and the couple's 2-year-old son, Alvaro, who was born to a surrogate in India.

The boy is creating chaos, dumping toys around the apartment. He's the only one in the family who looks happy today.

Carmen is stuck in the middle while his parents wage a legal battle to take her with them. The Thai surrogate who carried Carmen has backed out of her contract. And under a new law, Carmen belongs to her — not to Santos and Lake.

"We need two things to leave," says Lake. "One thing would be [Carmen's] passport. The second would be paperwork to get through immigration. And that requires special paperwork to let a baby leave the country."

They were close to getting it. The surrogate who gave birth to Carmen signed a consent form that allowed Lake to take her from the hospital and put his name on the birth certificate. But the woman failed to show up at the last meeting at the U.S. Embassy to sign that last bit of paper.

So even though Lake is the biological father and the egg came from a donor — not the surrogate — the family is stuck.

"We're having problems with our jobs and financially ... and all this is [the surrogate's] fault. We've done nothing wrong here," Lake says. "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."

Lax Regulation

An adviser to the surrogate says Thailand's commercial surrogacy business was wrong from the start. She calls it human trafficking. And she calls the surrogate in this case a victim — even though she willingly entered into a contract and was paid well by local standards.

When Carmen was conceived more than a year ago, commercial surrogacy was booming in Thailand. Thanks to lax regulation, commissioning parents could get babies more cheaply here than in other countries where commercial surrogacy is legal. Surrogates could earn about $15,000 for carrying babies to term.

Then came the case of Baby Gammy. An Australian couple commissioned twins, but balked when Gammy was found to have Down syndrome. They took his healthy sister home and left Gammy behind with his surrogate mother, who was happy to keep him.

The Thai media hit the story hard. And early this year, the military-led government pulled the plug: No more commercial surrogacy in Thailand. And no more surrogacy for foreigners, period.

There was supposed to be a grace period for parents who already had babies on the way, like Lake and Santos. And that's worked for most.

So why did their surrogate, Patidta Kusongsaang, change her mind?

She lists a lot of reasons.

"First of all, they are not natural parents in Thai society," she says through an interpreter. "They are same-sex, not like male and female that can take care of babies. 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."

The Fight Ahead

Lake and Santos deny all of this. They are getting ready to fight for Carmen in a Thai court. But Lake says the lawyers they've talked to say their chances of winning are less than 10 percent.

"The reason they gave us such a low percentage is because, despite the fact there are temporary provisions in the new law just published that say ... parents can ask for their parental rights to be recognized in court, unfortunately, it's worded as 'husband and wife,' " he says.

Lake suspects the law was written to exclude gay couples deliberately. And he seems to be on to something.

"Thai law does not endorse same-sex pair. And [under] Thai law, a legal couple is husband and wife, man and woman," says Dr. Arkom Pradidsuwan of the Thai Medical Council in the Ministry of Public Health.

Carmen's legal status, he says, is that she belongs to Kusongsaang.

Santos says that's not fair: He and Lake are legally married. Many other countries recognize this fact.

"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 [changed] ... but we don't have anything to do with that," Santos says.

For years, commercial surrogacy in Thailand worked for many people — not only for couples who wanted but couldn't have babies but also for surrogates who needed the money. Advocates argue that commercial surrogacy didn't need to be banned; it just needed to be better regulated, in part to avoid problems like this one.

Stuck In Limbo

So where does this leave Santos, Lake, Alvaro and Carmen? For now, in limbo. Lake says the U.S. Embassy has told him its hands are pretty much tied.

"They've advised us that we need to follow judicial channels," he says. "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, saying, "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."

The couple has been switching apartments every month or so. They have reason to be afraid: Kusongsaang and her adviser have gone to the police and formally accused Lake of child abduction. He recently went to hear the charges. He left Carmen at home, just in case.

He and Santos say they'll do everything they can to keep her. There's no way, Santos says, they're going home without their baby.

"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 [she] is not her daughter; [she] is our daughter."

Lake and Santos thought they'd be bringing the baby home six months ago, shortly after she was born. Back then, they were excited at the thought of Carmen meeting the family — especially Santos' ailing 91-year-old grandmother, Carmen's namesake.

She died a few weeks ago.

A longer version of this story appeared on LifeoftheLaw.org.