The newspapers never talk about the thousands of airplanes that land safely every day. What makes the front page are the rare flights that crash. Similarly, when it comes to surrogate pregnancy, no one is particularly interested in hearing about all the wonderful times the process has worked out. It’s the unusual cases, where something goes awry, that attract our attention. The recent Thai-Australian fiasco involving special-needs baby Gammy is a good example, and it may be illuminating on a number of fronts.

The story began when Australian couple Wendy and David Farnell wanted to have a child but couldn’t, after eight years of trying. So they created embryos from David’s sperm and Wendy’s eggs, and implanted them into a surrogate gestational carrier, Pattaramon Chanbua, a 21-year-old food vendor in Thailand with two young children of her own. She was paid.

More than one of the embryos took root. In this case, it was one male and one female. Unfortunately the male fetus was afflicted with Down’s Syndrome and a serious heart condition which would require surgery. To make matters worse, this information did not emerge until the seventh month of the pregnancy, so it was too late to abort the male.

There is a longstanding moral debate about whether it is ever right to abort a fetus with physiological life-threatening or life-limiting problems. Typically, when pregnancy terminations occur because of genetic test results indicating Down’s Syndrome or other afflictions, it will be much earlier in the pregnancy, i.e., the first trimester. However, this requires that fetal testing be done early in the pregnancy. In this case the moral debate was entirely academic — both children had to be born.

There are two different versions of what happened. Ms. Chanbua called a press conference and declared that Mr. Farnell wanted nothing to to do with the afflicted Gammy, and essentially abandoned him. An online fundraising campaign ensued, raising nearly a quarter of a million dollars for Gammy’s heart operation which, as of this writing, has not been scheduled.

In contrast, Mr. Farnell told reporters that he and his wife wanted to keep both babies, but that Ms. Chanbua threatened to go to the police if they took Gammy, and that she would try to get the female back and keep both babies. Ms. Chanbua, backtracking from her original allegation that the couple abandoned Gammy, admitted that she insisted on keeping Gammy because she felt the child would end up being institutionalized back in Australia.

In any event, this sad tale raises two difficult issues. First, it would appear that the quality standards of assisted reproduction in this case were not as high as they ought to have been. Waiting until the seventh month of pregnancy before announcing that one fetus has serious medical problems is very odd.

Secondly, the widespread prohibition against surrogacy-for-hire may be partly to blame for fiascos like this. No one can say for sure, but it is interesting to speculate on whether Mr. and Mrs. Farnell might have hired a surrogate in Australia if it were not illegal there, and furthermore, whether the medical care in Australia might have been better, such that they would have discovered prior to the third trimester that there were severe birth defects at play.

From this perspective, the criminalization of commercial surrogacy (in Canada you can go to jail for up to ten years and/or be fined up to $500,000 if you pay someone a fee to carry a child on your behalf) seems not only counter-productive, but the height of irony. The countries that ban or criminalize commercial surrogacy in effect force their citizens to potentially go ‘underground’, where there are no checks and balances, or go to another country, where the cost may be considerably higher than the home country, or worse, the standard of medical care much lower, and the treatment of gestational carriers exploitative.

The hard reality is that we humans are hard-wired to reproduce and will go to great lengths to build families. So perhaps it would make more sense to have rules and regulations to help people make that happen in a safe and regulated manner, rather than severe criminal penalties which steer desperate, vulnerable people down avenues that are expensive, more exploitative, and downright unsafe.

In California it’s perfectly legal to pay a surrogate. Is the California law morally wrong? Or is it morally wrong to take the Canadian approach and, on pain of prison, allow only “altruistic” surrogacy, or, alternatively, force intended parents who cannot find an altruistic surrogate to go abroad and walk a minefield?


Bill Rogers is a Toronto lawyer and blogger covering family law and fertility law issues, and a columnist for the Medical Post covering the law of malpractice.

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