International Surrogacy as Disruptive Industry in Southeast Asia 9780813596877

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INTERNATIONAL SURROGAC Y AS DISRUPTIVE INDUSTRY IN SOUTHE AST ASIA

MEDIC AL ANTHROPOLOGY: HE ALTH, IN­E QUALIT Y, AND SOCIAL JUSTICE Series editor: Lenore Manderson Books in the Medical Anthropology series are concerned with social patterns of and social responses to ill health, disease, and suffering, and how social exclusion and social justice shape health and healing outcomes. The series is designed to reflect the diversity of con­temporary medical anthropological research and writing, and ­will offer scholars a forum to publish work that showcases the theoretical sophistication, methodological soundness, and ethnographic richness of the field. Books in the series may include studies on the organ­ization and movement of ­peoples, technologies, and treatments, how inequalities pattern access to ­these, and how individuals, communities, and states respond to vari­ous assaults on well-­being, including from illness, disaster, and vio­lence. Jessica Hardin, Faith and the Pursuit of Health: Cardiometabolic Disorders in Samoa Carina Heckert, Fault Lines of Care: Gender, HIV, and Global Health in Bolivia Alison Heller, Fistula Politics: Birthing Injuries and the Quest for Continence in Niger Joel Christian Reed, Landscapes of Activism: Civil Society and HIV and AIDS Care in Northern Mozambique Beatriz M. Reyes-­Foster, Psychiatric Encounters: Madness and Modernity in Yucatan, Mexico Sonja van Wichelen, Legitimating Life: Adoption in the Age of Globalization and Biotechnology Lesley Jo Weaver, Sugar and Tension: Diabetes and Gender in Modern India Andrea Whittaker, International Surrogacy as Disruptive Industry in Southeast Asia

INTERNATIONAL SURROGAC Y AS DISRUPTIVE INDUSTRY IN SOUTHE AST ASIA a ndre a w hit ta ker

rutger s uni v er sit y p r ess

New Brunswick, Camden, and Newark, New Jersey, and London

Library of Congress Cataloging-­in-­Publication Data Names: Whittaker, Andrea (Andrea M.), 1967–­author. Title: International surrogacy as disruptive industry in Southeast Asia /   Andrea Whittaker. Description: New Brunswick, New Jersey : Rutgers University Press, [2018] |   Series: Medical anthropology | Includes bibliographical references and index. Identifiers: LCCN 2018011717| ISBN 9780813596846 (cloth) |   ISBN 9780813596839 (pbk.) Subjects: LCSH: Surrogate motherhood—­Social aspects—­Thailand. | Surrogate   motherhood—­Moral and ethical aspects—­Thailand. | Surrogate motherhood—­   Cross-­cultural studies. Classification: LCC HQ759.5 .W485 2018 | DDC 306.874/309593—­dc23 LC rec­ord available at https://­lccn​.­loc​.­gov​/­2018011717 A British Cataloging-­in-­Publication rec­ord for this book is available from the British Library. Copyright © 2019 by Andrea Whittaker All rights reserved No part of this book may be reproduced or utilized in any form or by any means, electronic or mechanical, or by any information storage and retrieval system, without written permission from the publisher. Please contact Rutgers University Press, 106 Somerset Street, New Brunswick, NJ 08901. The only exception to this prohibition is “fair use” as defined by U.S. copyright law. The paper used in this publication meets the requirements of the American National Standard for Information Sciences—­Permanence of Paper for Printed Library Materials, ANSI Z39​.­48​-­1992. www​.­rutgersuniversitypress​.­org Manufactured in the United States of Amer­i­ca

For my ­daughters Claire and Rachel and ­those who wish to create families

CONTENTS

Foreword by Lenore Manderson ix Preface xiii List of Abbreviations xvii Notes on Language and Transliteration xix

Introduction

1

The Growth of Disruptive Commercial Surrogacy in Asia

27

2

Merit and Money: The Moral Economy of Surrogacy

48

3

The Best of Intentions

67

4 Facilitation

1

99

5

Digital Umbilical Cords

116

6

Rotten Trade

131

7

Baby Gammy

147

8

New Destinations, New Markets

167



Conclusion: The ­Future of International Surrogacy

180

Acknowl­edgments 195 Notes 197 Bibliography 201 Index 221

vii

FOREWORD LENORE M ANDERSON

Medical Anthropology: Health, In­equality, and Social Justice is a new series from Rutgers University Press, designed to capture the diversity of con­temporary medical anthropological research and writing. The beauty of ethnography is its capacity, through storytelling, to make sense of suffering as a social experience, and to set it in context. Central to our focus in this series on health and illness, in­equality and social justice, therefore, is the way in which social structures and ideologies shape the likelihood and impact of infections, injuries, bodily ruptures and disease, chronic conditions and disability, treatment and care, social repair and death. The brief for this series is broad. The books are concerned with health and illness, healing practices, and access to care, but the authors illustrate too the importance of context—of geography, physical condition, ser­vice availability, and income. Health and illness are social facts; the circumstances of the maintenance and loss of health are always and everywhere s­ haped by structural, global, and local relations. Society, culture, economy, and po­liti­cal organ­ization as much as ecol­ogy shape the variance of illness, disability, and disadvantage. But as medical anthropologists have long illustrated, the relationships of social context and health status are complex. In addressing t­hese questions, the authors in this series showcase the theoretical sophistication, methodological rigor, and empirical richness of the field, while expanding a map of illness and social and institutional life to illustrate the effects of material conditions and social meanings in troubling and surprising ways. The books in the series move across social circumstances, health conditions, and geography, and their intersections and interactions, to demonstrate how individuals, communities, and states manage assaults on well-­being. The books reflect medical anthropology as a constantly changing field of scholarship, drawing on research diversely in residential and virtual communities, clinics, and laboratories, in emergency care and public health settings, with ser­vice providers, individual healers, and ­house­holds, with social bodies, ­human bodies, and biologies. While medical anthropology once concentrated on systems of healing, par­tic­u­lar diseases, and embodied experiences, ­today the field has expanded to include environmental disaster and war, science, technology, faith, gender-­ based vio­lence, and forced migration. Curiosity about the body and its vicissitudes remains a pivot for our work, but our concerns are with the location of bodies in social life, and with how social structures, temporal imperatives, and ix

x

Foreword

shifting exigencies shape life courses. This dynamic field reflects an ethics of the discipline to address ­these pressing issues of our time. Globalization contributes to and adds to the complexity of influences on health outcomes; it (re)produces social and economic relations that institutionalize poverty, unequal conditions of everyday life and work, and environments in which diseases increase or subside. Globalization patterns the movement and relations of ­peoples, technologies and knowledge, programs and treatments; it shapes differences in health experience and outcomes across space; it informs and amplifies inequalities at the individual and country levels. Global forces and local inequalities compound and constantly load on individuals to affect their physical and ­mental health, and their h­ ouse­holds and communities. At the same time, as the subtitle of this series indicates, we are concerned with questions of social exclusion and inclusion, social justice and repair, again both globally and locally. The books challenge readers to reflect not only on sickness and suffering, deficit and despair, but also on re­sis­tance and restitution—on how ­people respond to injustices and evade the fault lines that might seem to predetermine life outcomes. While not all of the books take this direction, the aim is to widen the frame within which we conceptualize embodiment and suffering. In International Surrogacy as Disruptive Industry in Southeast Asia, Andrea Whittaker brings together the concerns of embodiment and suffering as illustrated through the outsourcing of reproduction. Assisted reproductive technology, in vitro fertilization, and gamete donation have expanded rapidly during the past few de­cades, with increasing propensity for reproductive medical procedures to take place across borders. The increasing affordability of international transport, the transmission of bio-­information through the internet, and the movement of expertise globally allow ­people to pursue ­family making, increasingly, when and where it suits them. Thus ­people side-­step national laws, biomedical constraints, and prohibitive charges and pursue secrecy and efficiency as they manipulate their desire for biologically related families. But even the most sensitively timed assisted reproductive technology (ART) procedures, the best doctors, and the most sophisticated clinics do not cover all eventualities. For a growing number of individuals and ­couples, for whom biological parenting remains the grail, the answer is surrogacy. Surrogate pregnancy is not new, but it was once largely a private arrangement, framed by affective (often kinship) ties between gestational and intending social ­mothers. But the desire to establish or continue a biological f­ amily, social con­ve­ nience, and its way around medical difficulties in conception and pregnancy to term have led surrogacy to become an increasingly common reproductive option. The institutions, procedures, and drugs now available in support of advanced reproductive technology have increased the success of the implantation of an embryo (or two or more) into the womb of another w ­ oman as surro-

Foreword xi

gate, sometimes with the ova and sperm of the intended parents, sometimes with o­ thers’ gametes. As with other reproductive pilgrimages, for ­legal, economic, and technical reasons, surrogacy is for many ­people an offshore venture. In Thailand, where Whittaker focuses her story, ART is a well-­established industry, taking advantage of the internet, social media, and the infrastructure of tourism for leisure as well as medical travel. At the same time, employment as a surrogate m ­ other and opportunities to donate ova provide poor ­women with new opportunities to generate an income. In Thailand, as in India and other settings marked by economic and social in­equality, the organ­ization of surrogacy into a commercially lucrative industry took advantage of this. ­Women’s reproductive capacities become exploitable as a resource as a form of ­labor. Whittaker offers us a rich account of the assemblages and markets of affect—­the overwhelming desire for a biological child or ­children—­w ith technology, economic in­equality, and commercial greed. It is a story of brokers, travel agents, clinics, l­awyers, “spotters,” accommodation providers, hospital and embassy staff, intended parents, surrogates, and ova providers. Parental hopes find willingness in the desperation of poor ­women, and doctors, nurses, brokers, and ­others make money from this convergence. This is a continuing story. Whittaker describes how the exposure of some of the most extreme cruelties of surrogacy has forced l­egal changes, including in Thailand. But when surrogacy is pushed out of some countries, its commerce crosses borders, reappearing in settings where government intervention is in­effec­ tive and where reproductive ­women are among the poorest. ­These assemblages of technology, kinship, and capital are deeply disturbing. As Whittaker illustrates, ­others’ dreams are pursued and often realized through the exploitation of in­equality and the perpetration of social injustice.

PREFACE

This is a story of unease. For anthropologists, it is always an awkward task to document and question the ways of life of other p­ eople. On a topic such as surrogacy, the tensions become acute: it is a subject that inevitably divides p­ eople who take vari­ous ethical positions on the issue. Listening to the personal stories of ­people whose desire to form a ­family has led them to choose overseas surrogacy, who can say it is wrong that they grasp an opportunity to pursue the joys of ­family life? ­There is a danger that discussions of overseas surrogacy descend into validations of only one type of ­family, or denials of the agency of the surrogates involved. As I hope w ­ ill be evident in this book, one cannot deny the legitimacy of ­people’s claims to form a f­ amily, the real suffering they undergo, and the enormous efforts and difficult decisions they make to seek families through surrogacy, nor their own ethical concerns on the issue. But as a social scientist, it is my job also to think beyond the individual scale, and consider more broadly the development of an industry at a regional scale. The use of the word “industry” in this context is offensive to some, but as I ­will argue l­ater, I think it is appropriate as a means of describing the vari­ous integrated businesses and ser­vice industries that rapidly grew to provide surrogacy across Asia. I pursue the analy­sis of the overseas surrogacy industry on a number of scales as a means to explore the complexities of this issue. I do not wish to criticize the individual parents or surrogates who have most generously opened up and provided their most intimate and precious details of their personal decisions around surrogacy. But it is valid to raise concerns about how the industry that has evolved is or­ga­nized and operates. My personal experience in undertaking this research over many years has been marked by constant challenges to my own understandings, as I have come face-­to-­face with the real ­people ­behind the ste­reo­types of surrogates, intended parents, facilitators, and doctors. The desire to undertake this research first emerged following my earlier research on IVF in Thailand in 2009, as I became aware of the growing interest in the country as a destination for foreigners seeking IVF procedures including surrogacy. It was further piqued when, in 2010, a work colleague announced that he and his partner ­were pursuing surrogacy in India at a time when legislative changes made travel for overseas surrogacy by Queensland residents illegal. He had read my early writings on surrogacy and wrote an email to me shortly ­after the birth of his twin sons. Offended at my previous writing on surrogacy in Thailand, which called for greater regulations, he accused me of moralizing on what had been a carefully planned decision in his case, as he and his partner had tried to balance their desires with their own xiii

xiv

Preface

ethical concerns. His criticisms included accusations of colonialist stereotyping of all Indian surrogates as poor w ­ omen without agency, and denying them a legitimate and lucrative opportunity to earn a significant amount of money that could be life changing. In his email, he accused me of setting myself up as a feminist moralizing judge over personal reproductive decisions. Of course, his email upset me; it reminded me that academic writings are read by and have real implications for their readers and subjects. In my response, I echoed what I am writing ­here—­that as an anthropologist my role is to describe and analyze at a social scale. My work is intended not to vilify individual actions but rather to describe an industry and its social implications and perhaps to suggest how it might be improved for the protection of all ­those involved. It is my hope that it does not cause distress for the c­hildren, families, parents, or surrogates involved, but instead affirms the complexity of this issue and the many rights and responsibilities that must be balanced. Having said this, however, I do not resile from criticizing the real harms associated with surrogacy that have been documented in Asia. In this book, I discuss cases of criminal activity, trafficking, and child abandonment that represent rare but real instances of damage to ­people and, more broadly, to the reputation of all who seek to form families through surrogacy. Of course abuses occur in ­every industry, yet to deny their existence does l­ittle to advance the development of equitable, safe, and ethical surrogacy. And it is impor­tant to understand how vari­ ous incidents have been pivotal in the regulation of and po­liti­cal reactions to the industry in the region. They are included in this book not as salacious details but as marking turning points in public discourse and po­liti­cal action on the issue. Yet I also document the very real joys, wonderments, and delights experienced by families formed through surrogacy. It is difficult to convey the care and love evident among the families I have been privileged to meet at surrogacy conferences, in clinics, and through interviews. ­These families come in all shapes and sizes, and it should never be forgotten that their ­children ­were so very wanted, to the extent that their parents went through enormous efforts to conceive them. The families themselves should not be defined by the technique used for the conception and birth of their c­ hildren; the real­ity is that the experience of surrogacy is but a starting point for a lifetime of care and love. Nevertheless, families formed through surrogacy face a set of unique challenges, such as the personal decisions they must make around how to tell their c­ hildren about their birth, ­whether and how to incorporate the role of the surrogate as fictive kin, and a number of ­legal complications regarding the citizenship of their ­children and ­legal recognition of their parentage. The degree of complexity depends upon the nationality and citizenship of the parents, the nationality of their surrogate, and the country or even state within which they undertake surrogacy. This book addresses some of the consequences of the l­egal labyrinth for families involved in the study.

Preface xv

Fi­nally, in this book I primarily explore the international surrogacy industry as it emerged in Thailand and Southeast Asia. I describe a par­tic­u­lar time and place, and therefore I do not intend to describe the forms of the industry in other parts of the world. Even so, the insights I provide can be used to compare how the industry has developed elsewhere. As other anthropologists have shown, the introduction of IVF technologies has taken dif­fer­ent social forms in vari­ous cultural and social settings, and so too with surrogacy. Undertaking surrogacy in Laos, Ukraine, or the United States is a dif­fer­ent phenomenon in each case, within specific social, cultural, and economic contexts. All ­mistakes are mine, and I hope this book reflects my curiosity, empathy, and re­spect for my in­for­mants.

ABBREVIATIONS

AAT

Alliance Anti Trafic [sic]

ACT

Australian Capital Territory

ART

assisted reproductive technology

ASEAN

Association of Southeast Asian Nations

COTS

Childlessness Overcome through Surrogacy

CSS

Complete Surrogacy Solutions

DPP

Director of Public Prosecutions

ESHRE

Eu­ro­pean Society for H ­ uman Reproduction and Embryology

EU

Eu­ro­pean Union

FCC

Fertility Clinic of Cambodia

FIFO

fly in fly out

FTS

Families through Surrogacy

GIFT

gamete intrafallopian transfer

HIV ­human immunodeficiency virus ICMART International Committee Monitoring Assisted Reproductive Technologies ICSI

intracytoplasmic sperm injection

IP

intended parent

ISS

International Social Ser­vice

IUI

intrauterine insemination

IVF

in vitro fertilization

LGBTIQ

lesbian, gay, bisexual, transgender, intersex, queer

NCCT

Cambodian National Committee for ­Counter Trafficking

NCPO

National Council for Peace and Order

NGO

nongovernmental organ­ization

NSW

New South Wales

OHSS

ovarian hyperstimulation syndrome

PESA

percutaneous epididymal sperm aspiration

PGD

preimplantation ge­ne­tic diagnosis

PGS

preimplantation ge­ne­tic screening xvii

xviii

TESE TIP USFDA WA WHO ZIFT

Abbreviations

testicular sperm extraction trafficking in persons US Food and Drug Administration Western Australia World Health Organ­ization zygote intrafallopian transfer

NOTES ON L ANGUAGE AND TR ANSLITER ATION

Throughout this text and for clarity, Thai script is used for Thai words. Transcriptions of Thai words used throughout this text follow the transcription system below. ­Under this system, tones and long vowels are not indicated. Exceptions to this system include place names, personal names, and authors’ names where the transcription follows that customarily used. For consistency in the list of references, Thai authors are listed by their last names.

Thai vowels Phonetic symbol

Thai symbol

Phonetic symbol

Thai symbol

a a am ao ao ai ai e e ew ew ae ae aew i i ia iaw iw ru

อะ,อั-­, inherent อา อำ� เอา อาว อัย,ใอ,ไอ อาย เอะ,เอ็-­ เอ เอ็ว เอว แอะ,แอ็-­ แอ แอว อิ อี เอียะ,เอีย เอียว อิว ฤ, ฤา

o o oi o o oi oe oe oei u u ua uay ui eu eu eua euay

โอะ, inherent โอ โอย เอาะ ออ, inherent ออย เออะ เออ,เอิเอย อุ อู อว-­,อัย,อัวะ อวย อุย อึ อืเอือะ,เอือ เอือย

lu

ฦ, ฦา

xix

xx

Notes on Language and Transliteration

Thai consonants syllable—­Initial values Phonetic symbol

Thai symbol

Phonetic symbol

Thai symbol

k kh ng j ch d t th n b p

ก ข,ค,ฆ ง จ ฉ,ช, ฌ ฎ, ด ฏ, ต ฐ, ฑ, ฒ,ถ, ท, ธ ณ, น บ ป

ph f m y r l w s h -­

ผ,พ,ภ ฝ,ฟ ม ย,ญ ร ล, ฬ ว ซ, ศ, ษ, ส ห, ฮ อ (glottal stop)

Thai consonants syllable—­Final values Phonetic symbol

Thai symbol

k ng t n p m y or i w

ก, ข,ค, ฆ ง จ, ฉ, ช, ซ, ฌ, ฎ, ฏ, ฐ, ฑ, ฒ, ด, ต, ถ, ท, ธ, ศ, ษ, ส ญ, ณ, น, ล, ฬ บ, ป, ผ, ฝ, พ, ฟ, ภ ม ย ว

INTERNATIONAL SURROGAC Y AS DISRUPTIVE INDUSTRY IN SOUTHE AST ASIA

INTRODUCTION

All of society is now permeated through and through with the regime of the factory, that is, with the rules of the specifically cap­i­tal­ist relations of production. . . . ​In the factory society the traditional conceptual distinction between productive and unproductive ­labor and between production and reproduction which in other periods had dubious validity, should t­ oday be considered defunct. (Hardt and Negri 1994, 9)

The last twenty years have witnessed the growth of an international commercial surrogacy industry across Asia. In this book, I describe and analyze the organ­ization and nature of this industry through the perspectives of the ­people most involved in it. I argue that in Asia, an aggressively marketed model of surrogacy emerged first in India, then traveled across to Thailand, Nepal, and, more recently, Cambodia and Laos. The model of commercial surrogacy that emerged in Asia was “disruptive,” with a number of characteristics in common with other post-­Fordist disruptive industries. It superseded older, more bespoke forms of commercial surrogacy arrangements and created mass availability, rapid accessibility, and new demands for surrogacy ser­vices. Since 2014–2015, controversial cases involving criminal trafficking, the abandonment of ­children, and l­ egal complications involving ­children being left stateless have led to the closure of commercial surrogacy and restrictions on all forms of surrogacy in a number of Asian countries. The closure of commercial surrogacy to foreigners in India, in par­tic­u­lar, led to the growth of new destinations. International surrogacy moved to Thailand, Nepal, and Cambodia, only to ­later be banned in all t­ hese countries. In this book, I concentrate upon the vari­ous ele­ ments of this industry—an assemblage of clinics and assisted reproductive technologies (ARTs), medical staff, facilitators, intended parents, communication technologies, ova donors, surrogates, and advocacy groups—­and how t­ hese came together to form the commercial surrogacy market in Thailand and across Southeast Asia. I use this as a means to reflect more broadly upon the nature of this post-­Fordist trade in reproductive potentials. The economist Klaus Schwab (2017) asserts that our current world economy is undergoing profound transitions. He terms this “the industrial revolution 4.0,” 1

2

Intern ation a l Surrog ac y a s Disrupti v e Ind ustry

in which the advent of new technologies, including reproductive and biotechnologies, is resulting in new models in the ways businesses are or­ga­nized, in how value is generated, and in how our economy is or­ga­nized, causing profound changes in our economic systems and social structures. He describes ­these technological shifts as “disruptive,” a term coined by management scholar Clayton Christensen (Bower and Christensen 1995; Christensen 2003), who defined a disruptive innovation as one whereby a smaller com­pany creates a new market and value network among overlooked segments of the market, frequently at a lower price, and thereby eventually disrupts an existing market and values, displacing previously established ways of ­doing t­ hings. In this book, I use the term “disruptive industry” to describe the emergence of a new business model and value market of international surrogacy that emerged and spread across Asia from 2002. The transformative novelty of this industry model is dependent on a range of sociotechnical pro­cesses within the IVF clinics involved, as well as the social context and regulatory environment, and how it has been mobilized, embraced, valued, and consumed by ­those involved. The development of innovative industries based upon new technologies, subcontracting, and on-­demand readiness is a hallmark of the profound changes occurring in the world economy and the new relations emerging between capital and p­ eople. In the quote opening this chapter, Hardt and Negri (1994) spoke of the “factory society” and the dissolution of distinctions between production and (social) reproduction. In the post-­Fordist economy described in this book, not only have the factory walls dissolved, but reproduction is production. Th ­ ese changes have coincided with vari­ous forms of neoliberal deregulation, increased individualization, and decreases in social welfare and state responsibilities. At the same time, consumers can now easily source commodities across the globe through the internet and affordable international travel. In turn, the advent of vari­ous biotechnologies is further transforming the means of production as bodies themselves become sources of value—­not just through their ­labor value. ­These changes have provided the context for the development of the international surrogacy industry. Throughout this book, I argue that the organ­ization and practices of this disruptive surrogacy model create differential vulnerabilities for t­hose enmeshed within its re/production logic: the intended parents, surrogates, and ­children.

Surrogacy Few topics have attracted so much academic and popu­lar interest as surrogacy. Although vari­ous forms of traditional surrogacy arrangements have long existed, gestational surrogacy and ova donation became pos­si­ble only following the development of ARTs. In “traditional,” “partial,” or “ge­ne­tic” surrogacy, a w ­ oman uses her own ova to be fertilized through some form of artificial insemination, inter-

Introduction 3

course, or in vitro fertilization (IVF), and then carries the resulting pregnancy to birth for ­others. She is the ge­ne­tic parent of the offspring. In “gestational” or “host” surrogacy, the surrogate has no ge­ne­tic relation to the embryo implanted in her womb. With the advent of gestational surrogacy, an infertile ­couple now can use any combination of donated gametes or their own gametes and have the resultant embryo implanted in the womb of a surrogate to carry the pregnancy and give birth to the child, who is then handed over to them. IVF technologies have thus allowed vari­ous new forms of gestational surrogacy for p­ eople who previously had no opportunity to have genet­ically related c­ hildren. Surrogacy may be used to enable c­ ouples who are unable to gestate a pregnancy for medical reasons, such as the absence of a uterus in a ­woman, the inability to carry a pregnancy, or recurrent failed implantation and recurrent miscarriage and single males and same-­sex male ­couples to have ­children. The fact that the gestational surrogate has no ge­ne­tic relationship to the resultant child makes it more attractive to surrogates and intended parents, as it is presumed that ­there ­will be fewer emotional ties to that child. Although the first gestational (and commercial) surrogacy took place in 1985 (Utian et al. 1989) at the Mount Sinai Medical Center in Cleveland in the United States,1 it was not ­until the 1990s that gestational surrogacy arrangements began in Asia. The use of surrogacy is highly controversial in many countries due to a range of ethical, religious, and ­legal concerns, and as a result many countries ban or greatly restrict the forms and conditions u­ nder which surrogacy may take place. According to the International Federation of Fertility Socie­ties’ (IFFS) 2016 survey of sixty-­five countries, gestational carriers are permitted by statute or guidelines in twenty-­four countries (eight do not allow traditional surrogacy arrangements). Thirty-­six countries reported that gestational surrogacy was not allowed, and respondents from seven countries w ­ ere not able to answer the question (International Federation of Fertility Socie­ties 2016). Commercial surrogacy is banned in most Eu­ro­pean countries, Australia, China, Taiwan, Japan, Turkey, and some US states. Other countries, such as Brazil, Israel, and the United Kingdom, have partial bans. In some jurisdictions, only “altruistic” surrogacy, in which the surrogate receives no form of payment, is allowed. In ­others, regulated and limited forms of compensation are allowed but below a level at which it could be considered a commercial exchange. ­There are relatively few jurisdictions that allow commercial surrogacy in which the surrogate receives payment for her ser­vice. Currently, ­these include certain states of the United States, Ukraine, and India. Elsewhere, countries with l­ittle or no regulation have become hubs for an international commercial surrogacy trade, and ­until recently this included Thailand and Cambodia.

4

Intern ation a l Surrog ac y a s Disrupti v e Ind ustry

The Ethics of International Surrogacy The advent of international gestational surrogacy provoked vari­ous responses questioning the ethics of surrogacy and means of regulation (Van Niekerk and Van Zyl 1995; Parks 2010; Donchin 2010; Gupta 2006; Humbryd 2009). The debates centered around issues related to the commodification of w ­ omen’s bodies and exploitation in surrogacy arrangements versus notions of reproductive freedom (Berkhout 2008). Eight ethical concerns associated with the transnational surrogacy trade have been identified (Deonandan, Green, and Beinum 2012). ­These concerns are focused on the challenges of informed consent given that most commercial surrogates are poor and in some cases illiterate; the manipulation of custodian rights ­under law to ­favor the surrogacy trade; questions over the quality and conditions of surrogate care; the limited medical care offered to surrogates post-­delivery; the question of appropriate remuneration for surrogates within a context of global economic disparities; the common practice of multiple embryo transfers and selective reduction; the lack of a medical advocate for surrogates given the financial conflict of interest for clinics; and the issue of ­whether ­free choice is pos­si­ble u­ nder conditions of economic coercion. Ultimately, the ethical questions revolve around questions of autonomy and exploitation—­whether t­ here can be any justification for exposing a surrogate to the social, psychological, and medical risks of surrogacy, and how an ethical transaction can take place given the vested interests of clinicians and commissioning parents (Deonandan, Green, and Beinum 2012, 3). Marxist and radical feminists describe surrogacy as the ultimate example of patriarchal medicalization, commodification, and exploitation of w ­ omen’s bodies and as demeaning to motherhood and h­ uman dignity, with some likening the commercial transaction to a form of prostitution or slavery (Arditti, Klein, and Minden 1984; Corea et al. 1987; Dworkin 1983; Klein 2008; Raymond 1995; Rothman 1988, 1989). In contrast, liberal feminist approaches re­spect surrogacy as another reproductive choice for ­women. Often based upon empirical studies with surrogates, they highlight how ­women involved in the surrogacy pro­cess view their bodies, act as agents negotiating the surrogacy, and assert positive interpretations of the experience of surrogacy (Goslinga-­Roy 2000; Ragoné 2005; Roberts 1998; Teman 2001, 2003, 2010).

Anthropological Studies Anthropological accounts of international surrogacy suggest that the experience of surrogacy is complex and appears dependent upon the social and l­ egal context in which it takes place, the level of social acceptability of surrogacy, the social and emotional support available for all parties, and the nature of the contract between the surrogate and commissioning parents. For example, writing of surrogacy

Introduction 5

within the context of ardently pronatalist Israel, where state-­sponsored ARTs are readily available, Teman (2001) argues against depictions of surrogacy as a form of alienated bodily l­ abor, suggesting that w ­ omen are able to appropriate their medicalization in positive and empowering ways. She describes an intense “hybridised fusion” that occurs between surrogates and intended ­mothers, creating a sense of shared embodiment of the pregnancy (Teman 2003, 2010). In other settings, however, authors have noted how surrogacy relationships reproduce class and race hierarchies, especially in contexts where gestational surrogates often come from poorer or racially dif­fer­ent backgrounds from that of the commissioning parents (Ragoné 2000). For example, in the United States, gestational surrogates tend to be from poorer, black, and ethnic backgrounds (Roberts 1995). Writing of an open surrogacy arrangement in the United States, Gillian Goslinga-­Roy (2000) analyzes how bioge­ne­tic discourses and class ideologies deny the surrogate’s attempt to develop an intimate relationship with the commissioning parents, who she argues are unable to perceive the surrogate as anything other than a womb. She provides a nuanced analy­sis of how class and race structure the embodied experience. Such differentials of class and race are particularly marked in international surrogacy arrangements (Vora 2012). Susan Markens (2007, 2012) describes how gestational surrogacy has been positioned within two tropes—­the “plight of the infertile ­couple” and “baby-­selling” frames—­each producing dif­fer­ent understandings of the surrogate body as ­either altruistic or commoditized, and calling for dif­fer­ent types of social intervention accordingly. In relation to international surrogacy, the additional trope of the “exploited” surrogate figures prominently in academic and popu­lar depictions of surrogacy in India, Thailand, Nepal, and elsewhere in the developing world. Amrita Pande (2009, 2010a, 2010b, 2014) pres­ents a more nuanced analy­sis of the complex realities of international surrogacy in Third World countries. She argues for a consideration of surrogacy as a new form of gendered, exploitative, and stigmatized ­labor. She uses the term “­labor” rather than “work” to evoke both the economic relations and the pro­cess of childbirth involved: “­Labour becomes the capacity to produce and reproduce in order to earn an income. . . . ​By identifying commercial surrogacy as l­abour, susceptible to exploitation like other forms of ­labour, and by si­mul­ta­neously recognizing the ­women as critical agents, we can deconstruct the image of the victim that is inevitably evoked whenever bodies of third-­world ­women are in focus” (Pande 2010b, 972). In this book, I do not argue that all international commercial surrogacy is, by definition, exploitative; from talking to w ­ omen and men involved, I have come to believe it is pos­si­ble for fair and just surrogacy relationships that are positive experiences for all parties to be undertaken. In short, I assert the right of ­women to the autonomous use of their bodies for surrogacy. Further, I suggest that the context and pro­cesses surrounding international surrogacy in any given location are crucial in shaping the conditions that determine ­whether the exchange is fair and just. Writing about

6

Intern ation a l Surrog ac y a s Disrupti v e Ind ustry

international surrogacy poses challenges for researchers, forcing us to recognize that the aspirations of w ­ omen and men and the enactment of their reproductive rights to access technologies to form families may involve contradictions, opposing moral economies, risks, and negative effects. It would be wrong to argue that in this book I am for or against the use of surrogacy; rather, I am concerned to document the manifestation of an industry in par­tic­u­lar cultural settings and the contradictory effects this has on ­women’s and men’s lives. In par­tic­ul­ ar, I criticize ele­ments of the new disruptive form of surrogacy introduced in Asia as producing exploitative practices not subject to oversight or regulation. It is pos­ si­ble to criticize the system in which surrogacy takes place for the potential harms it may cause without making moral judgments about t­ hose who find themselves entangled within it. Ultimately this book is about the logic of capitalism in a mode in which bodies and reproduction are the very stuff of exchange value themselves, framed by gendered norms, local moral values, biological imperatives, state bound­ aries, and structural vulnerabilities.

Reproductive Travel and International Surrogacy International surrogacy, also called cross-­border surrogacy, forms a part of a much broader medical travel trade. The context in which international surrogacy operates is one whereby governments have supported the exchange of medical care as a commodity; or, to put it in less positive language, medical travel might be viewed as commerce in which mobility facilitates the trade in h­ uman sickness and vulnerability, and the exchange of biovalue for economic value. Across Asia, countries such as India and Thailand have developed sophisticated medical travel industries, often supported by government policies (Chee 2010; Wilson 2010, 2011). Assisted reproductive treatments form one part of the medical travel trade, often termed “reproductive tourism” or “reprotravel” (Inhorn 2015), whereby p­ eople travel to seek reproductive health ser­vices in other countries (Inhorn 2011, 93). Such transnational mobility for reproductive care can involve the movement of patients, but also of ser­vice providers, ova donors, and surrogates, as well as of ova or embryos. L ­ egal restrictions on treatments and eligibility for treatments as well as shortages of resources such as expertise or donor oocytes appear to be major d­ rivers of this movement (Hudson et al. 2011). The availability of a ready supply of ­women willing to be surrogates is a further motivator to travel for ­those who require surrogacy, given that commercial surrogacy is banned in most countries around the world. Accurate statistics on the numbers of ­people traveling for all forms of reproductive care including surrogacy are unavailable, particularly for ­those visiting developing countries (Nygren et al. 2010). Th ­ ere are limited data on the extent of reproductive travel due to the absence of a global registry of IVF clinics and min-

Introduction 7

imal international monitoring. The International Committee Monitoring Assisted Reproductive Technologies (ICMART) surveyed clinics in eleven countries about “out­going” treatment cycles and estimated that approximately five thousand cross-­border IVF cycles w ­ ere undertaken in twenty-­five other nations (Nygren et al. 2010). Fifteen “recipient” countries reported that approximately seven thousand ­couples traveled from forty countries to receive treatment. Survey results from North Amer­ic­ a reveal that approximately 6 ­percent of the total volume of Canadian IVF patients are leaving the country for treatment, most (80 ­percent) for anonymous donor eggs. Four p­ ercent of patients treated with IVF in the United States are from other countries (Hughes and Dejean 2010). A number of countries have become major hubs of reproductive travel, although not all offer surrogacy. The availability of sophisticated medical infrastructure and expertise, favorable regulatory frameworks (or a lack of regulation), good tourist infrastructure, visas suitable for longer term stays, translators, and lower wage structures all play impor­tant roles in determining the popularity of ­these sites. Some US states remain popu­lar destinations despite the costs involved, due in part to the ­legal availability of commercial surrogacy ser­vices, commercial oocyte donation, and perceived high success rates. Within Eu­rope, Belgium provides a wide range of assisted reproductive treatments (De Sutter 2011; Pennings et al. 2009), and Spain and the Czech Republic are popu­lar destinations for oocyte donation (Bergmann 2011a; Matorras 2005). Denmark is notable as an international center for sperm donation and export (Blyth, Thorn, and Wischmann 2011). Thriving centers also exist in Argentina (McKelvey et al. 2009; Smith et al. 2010) and Mexico, while Jordan, Dubai, Israel, and South Africa are impor­tant hubs in Africa and the ­Middle East. Lebanon and Iran are notable as the only two countries in the Muslim world where patients can access donor gametes and surrogacy due to permission being granted by the religious authorities in ­these Shia-­dominant countries (Inhorn 2006, 2011). Within Asia, India became famous for the ready supply of surrogates due to the 2002 legislation legalizing commercial gestational surrogacy as the only form of surrogacy permissible (Deomampo 2013; Pande 2010a, 2010b, 2011; Rudrappa 2010). In parallel with its large medical travel trade, Thailand became another impor­tant hub within the region; however, as I describe in this book, all forms of commercial ova donation and surrogacy ­were banned ­there in 2015. Traveling for surrogacy ser­vices has been described as a form of “circumvention travel”—to receive medical ser­vices that are banned or restricted elsewhere, or unavailable for ­those whose status makes them ineligible for treatment (as is the case with many treatments for infertility due to age, marital status, or sexual orientation) (Bergmann 2011b; Cohen 2011, 2012). Th ­ ose traveling for reproductive ser­vices sometimes self-­describe as “reproductive exiles,” drawing attention to what they consider to be the “forced” nature of their travel (Inhorn and Pascale 2009; Matorras 2005). This term signals the po­liti­cal and l­ egal barriers to their access, but this depiction has been criticized by o­ thers for understating the relatively

8

Intern ation a l Surrog ac y a s Disrupti v e Ind ustry

privileged position of such travelers (Pennings 2005; Whittaker and Speier 2010). Transnational surrogacy often entails crossing multiple social bound­aries, as ­women from lower and middle-­income countries, and of dif­fer­ent ethnicity, socioeconomic status, language, and religion, act as surrogates for ­people from higher income countries. Such exchanges thus involve complex differential power relations and exemplify further the stratification of reproduction. As I argue in this book, mobility is crucial to this model of surrogacy, displacing intended parents, surrogates, ­children, and sometimes medical staff; sending gametes across the world; avoiding regulations across borders; and creating extra vulnerabilities as ­people carry few ­legal protections as they move. Mobility lies at the very heart of this model of surrogacy and poses challenges for any attempts to regulate it.

The Assemblage of International Surrogacy ­ ese movements of ­people to seek reproductive treatments and form families Th thus exemplify the growing magnitude and intensity of global flows contingent with globalization. As intended parents and surrogates can attest, global forces are becoming intimately entangled in the most personal decisions, national bound­ aries and regulations can be circumvented, and local bodies are becoming part of a global industry. In describing international surrogacy, I highlight the consequences of flows of capital, p­ eople, technologies, and networks that cross the globe upon local practices and networks and the experiences of ­people living and making decisions within them, or rather how p­ eople mediate global pro­cesses (Inda and Rosaldo 2002, 7). Globalization has been variously defined, but social theorists suggest that, in its current manifestation, globalization has unique spatial, temporal, cognitive, and technological characteristics (Giddens 1990; Harvey 1989; Scholte 2000). Global technologies such as assisted reproduction and associated possibilities for international gestational surrogacy epitomize such changes: creating new supranational links between ­people and families; forming new imaginaries of the possibilities of families, biological relations, and kinship; confronting us with new ethical regimes and gendered identities; and exemplifying the dissemination of global technologies in local settings. The multiple dimensions and scales of global phenomena have been conceptualized through a landscape meta­phor. Inhorn and Shrivastav (2010) draw upon Appadurai’s (1996, 31) conceptualization of the five “scapes” of the global cultural economy to delineate the concept of “reproscapes.” This concept underscores the complex interrelationships that unfold when bodies, parts, money, and imaginaries become situated in reproductive travel. Reproductive tourism occurs in a new world order, characterized not only by circulating reproductive technologies (technoscapes), but also by circulating

Introduction 9

reproductive actors (ethnoscapes) and their body parts (bioscapes), leading to a large-­scale global industry (financescapes) in which images (mediscapes) and ideas (ideoscapes) about making lovely babies while “on holiday” come into play. (Inhorn 2011, 87)

The “scape” meta­phor suggests both variability as well as perspective: it is dependent upon the position of the observer. Importantly, Inhorn highlights how the reproscape is highly gendered, with the burden of expectations and consequences of ARTs and surrogacy falling largely upon ­women (Inhorn and Shrivastav 2010, 69S). The reproscape highlights the importance of place, spatial movement, and perspective. Yet its evocation of a solid landscape is less effective as a meta­phor for thinking about the rapid movements, instabilities, and contingencies that characterize the international surrogacy industry in Asia. In my previous work on assisted reproduction in Thailand, I applied the concept of an assemblage to capture the heterogeneous relations, techniques, and concepts inherent to practices of assisted reproduction. I described the IVF industry in Thailand as “an assemblage fusing cells, bodies, practices, phar­ma­ceu­ti­cals, technology, capital, economics, politics, law, trade, travel and nations” (Whittaker 2015, 12) deeply entangled in larger transnational circulations. Likewise, Inhorn’s (2015) work on reproductive travelers in Dubai is or­ga­nized around the concept of the “global reproductive assemblage”: the network of technologies, personnel, expertise, finance, media, and imaginaries that animates the global trade in assisted reproduction. In this book, I continue to frame the movements of ­people for surrogacy as part of a “global assemblage . . . ​of material technologies, infrastructure, institutions, collective and discursive relationships that have arisen with the movement of technoscience and biomedicine across the world” (Ong and Collier 2005, 11–12, 14). The notion of assemblage is drawn from the work of Deleuze and Guattari (2003), in which they conceptualize neoliberal practices as “global forms” that converge with “situated institutions and practices” in global assemblages. They describe an assemblage as “how global forms interact with other ele­ments, occupying a common field in contingent, uneasy, unstable interrelationships” (Ong and Collier 2005, 12). The assemblage concept allows us to think about the commercial surrogacy industry in several ways. First, it draws attention to the multiple components that are circulated and choreographed to form the surrogacy assemblage. Multiple actors, capital, technologies, companies, and institutions are implicated in the industry and may be arranged in vari­ous configurations depending upon the par­ tic­u­lar context. Second, the concept of assemblage emphasizes spatiality and temporality, highlighting emergence, fluidity, and heterogeneity in pro­cesses of alignment, dispersal, and realignment (Anderson et al. 2012; Marcus and Saka 2006). As ­will be seen throughout this book, the international surrogacy industry is an excellent example of a shifting global form that disperses and realigns in

10

Intern ation a l Surrog ac y a s Disrupti v e Ind ustry

response to new situations or conditions. A sudden crisis in one country leads to a realignment of the industry in another. Fi­nally, “being ­wholes whose properties emerge from the interactions between parts” (DeLanda 2006, 5–6), “assemblages” elucidate the connections of entities at dif­fer­ent scales—­from the micro to the macro and in between. In this book, I describe a constant interplay between local and global forms, between individual desires and regional geopolitics, between global media and local facilitators.

Commercial Surrogacy as a Post-­Fordist Disruptive Industry Capitalism has under­gone a rapid restructuring in the last few de­cades. The term “post-­Fordism” is used to conceptualize a new phase in the cap­i­tal­ist regime of accumulation since the end of the 1990s that is transforming economic and social organ­ization (Albo 2010). The postwar “Fordist” period was characterized by the production of mass assembly goods through a system in which the ­labor pro­cess was broken down into component tasks and parts (termed “Taylorism”) and or­ga­ nized through flow-­line assembly, integrating machines into the ­labor pro­cess. It was dominated by large hierarchically or­ga­nized firms with semiskilled workforces concentrated in urban centers. The growth of the post-­Fordist economy has witnessed the demise of this model, replacing it with new forms of work organ­ization and technologies, new forms of accumulation and wage relations, new organ­izations of firms, the internationalization of capital, and a neoliberal policy regime transforming state relations (Albo 2010, 12–13). New technologies such as computers and robots have intensified the per­for­mance of all kinds of work and allowed the increased monitoring of the workforce. In turn, the semiskilled workforce has been largely replaced with dif­fer­ent types of workers, such as the highly skilled “knowledge workforce” and the growth of a large, insecure service-­sector workforce. The accumulation regime of the new economy is based upon individual, decentralized, and precarious forms of employment, with outsourcing and subcontracting used to maximize flexibility. ­These new ­labor pro­cesses are coupled with “just-­in-­time” production and the coordination of production chains through international networks. The increased circulation of goods, ser­vices, and capital worldwide allows the development of multinational corporations that take advantage of lower wages and living conditions in other countries. ­These have been facilitated by the end of controls over trade and capital mobility with the establishment of new economic institutions such as f­ ree trade agreements and the World Trade Organ­ization. A neoliberal policy regime that has championed deregulation, internationalization, and privatization has also transformed the relations between the state and the market (Albo 2010, 14). Another aspect of this post-­Fordist phase of capitalism is the mobilization of bodies in the accumulation of capital in new forms. Kalindi Vora (2015) draws

Introduction 11

comparisons between surrogacy and outsourced customer ser­vice industries in India, such as call-­centers and information technology professionals. She argues that global production chains and value chains in all such industries reflect patterns in global business in which high profit margins and on-­demand supply supersede ­labor rights and extract value from racialized, gendered, and exploitable populations. Although the ­labor value of bodies and its social reproduction has always been essential to capitalism, for example as slaves or workers, the technological platform of ARTs (Franklin 2013) now allows the mobilization of the reproductive and regenerative properties and potentials of bodies to be mobilized within a reproductive bioeconomy (Cooper and Waldby 2014). In their analy­sis, Melinda Cooper and Catherine Waldby (2014) place surrogacy within a category of ­labor they call “clinical l­ abor,” a term they use to describe an activity that is intrinsic to the valorization of a par­tic­ul­ar bioeconomic sector (see Michal Nahman 2013 on ova donation). It refers to forms of l­abor in which the “in vivo biology of ­human subjects is enrolled into the post-­Fordist l­ abor pro­ cess” (7), such as the l­abor of gamete vendors and surrogates, as well as clinical experimental subjects and blood and tissue donors. Cooper and Waldby note that much clinical l­abor involves embodied risk and exposure to risk that may be harmful. They describe this as a form of “rentier capitalism” or “rentier reproduction,” representing another form of ­labor outsourcing, the contracting out of ser­ vices, and the rise of ­human capital theory in which “workers are constituted as entrepreneurs of their own productive, and indeed reproductive, capacity” (15). Rather than seeing this form of l­abor as somehow exceptional or an extreme manifestation, they describe it as “emblematic of the conditions of twenty-­first ­century l­ abor” (17). In this book, I expand upon Cooper and Waldby’s characterization of surrogacy as a form of clinical l­abor to suggest that the surrogacy industry that developed in Asia is “disruptive,” providing new surrogacy and ova options for the market and creating new demands for what was a restricted resource. As a model of “how to do surrogacy,” it has several characteristics: it is flexible, rapidly responding to change and opportunities; it is multinational, with many clinics and facilitators working across borders; it is lower cost; it places surrogates and ova donors as in­de­pen­dent contractors to maximize flexibility while offering few protections; and it utilizes new social media to develop its market. Like other post-­Fordist clinical ­labor industries such as ova, sperm, blood, and tissue donation, it extracts value from bodies by building upon the economic differences between surrogates and intended parents, but also by profiting off the local moral economies that valorize ­women’s roles as gestators and ­bearers of c­ hildren, the imperative for biological parenthood, and support the growing ac­cep­tance of and desire for gay parenting. Like many of the new disruptive industries of our age, it also thrives on a lack of regulation. The popu­lar destinations in Asia for international surrogacy in the 2000s all had ­little or no regulations governing

12

Intern ation a l Surrog ac y a s Disrupti v e Ind ustry

the practice. They disrupted the carefully monitored, expensive, regulated, bespoke access to surrogacy as it was previously practiced in the United Kingdom, Australia, and parts of the United States. In contrast, the new industry in Asia offered ­couples as consumers access to ser­vices more easily, faster, and at a lower price, and provided access to a ­whole new demographic of consumers traditionally denied access to surrogacy: namely, gay ­couples and singles. The organ­ization and practices of disruptive surrogacy produce differentiated vulnerabilities for ­those enmeshed in its logic. Unlike older models of surrogacy in which medical clinics and intended parents arranged surrogacy with ­women known to the intended parents, and emotional, physical, and financial liability rested upon the relationships built up among the intended parents, surrogates, and their doctors, t­ hese newer models of surrogacy collapse and segment t­ hese value chains, disrupting traditional models. Companies deliberately list themselves in offshore locations to limit their l­egal liabilities and corporate taxes, and may even use overseas servers for their advertisements to bypass countries’ laws on advertising for surrogacy, doctors, or medical treatments. They have ­little or no regulation or may adopt self-­serving “industry regulation” through industry organ­izations. They avoid accountability as they do not employ the surrogates, who are all in­de­pen­dent contractors rather than employees. The surrogates are especially vulnerable: ineligible for protections afforded full-­time laborers, such as workers’ compensation, insurance, and corporate repre­sen­ta­tion, carry­ing the full burden of the medical and ­legal risks of gestating a child for another. So, too, intended parents are positioned as consumers within this model, dependent upon facilitators and the aggressive marketing of clinics, with few ­legal protections across borders. The c­ hildren produced may also be legally vulnerable, and at risk of statelessness.

Surrogacy and Local Moral Economies Another characteristic of international commercial surrogacy is that it constitutes a “moralised market” (Fourcade and Healy 2007). One ­thing not fully explicated in Cooper and Waldby’s depiction of surrogacy as a form of clinical ­labor is how it draws upon local moral economies in its exchange. As anthropologists have described, medical encounters are also moral endeavors (Kleinman 1999; Lock 2001). Moral experience involves the flow of interactions between p­ eople and what anthropologists term their “local moral worlds.” Within such a view, the experience of seeking and providing medical care is intersubjective and interpersonal, and hence necessarily involves encounters between local moral worlds. As a number of scholars have argued, even in commercial surrogacy, the exchange is rarely approached as a purely commercial transaction. Parents, surrogates, and clinics undertake efforts to emphasize its affective, intimate nature. As sociologist Viviana Zelizer (1985) asserts, c­ hildren are supposed to be subjects

Introduction 13

beyond the reach of markets—­cared for, nurtured, and loved, not traded, circulated, or used in l­ abor. The c­ hildren produced through international surrogacy are a “contested commodity”: both priceless and commodified. Although a form of clinical ­labor, surrogacy differs from other clinical l­ abor due to the length of time it involves and the embodied intimacy between the surrogate and her pregnancy. Surrogacy is thus also a form of “intimate ­labor” that involves “embodied and affective interactions in the ser­vice of social reproduction” (Boris and Parrenas 2010, 7). As Boris and Parrenas assert (9–10), vari­ous forms of intimate l­ abor remain a primary source of livelihood for ­women and are increasingly commodified in late capitalism. As a form of intimate ­labor, surrogacy is subject to both market forces and ideologies of gender, race, and sexuality that shape its characteristics and dynamics. In US surrogacy, meta­phors of c­ hildren as gifts are commonly evoked by surrogates, intended m ­ others, and clinics to soften the pecuniary image of commercial surrogacy (Ragoné 2005). In chapter 2, I explore more fully how the surrogacy industry in Thailand drew upon local understandings of mothering, nurturance, and Buddhist merit to promote and legitimize its practice. Similarly, Amrita Pande (2014, 170) details the ways in which Indian surrogates negotiate the relationship between their ­labor as surrogates and morality through vari­ous mea­sures such as ­doing boundary work, emphasizing their higher motivations, referencing divine examples of surrogacy, and claiming the formation of kin ties with the baby and clients.

Surrogacy and Cir­cuits of Transvaluation In this way, we might view international surrogacy, as well as other forms of reproductive travel, as not only an economic venture but also a trade cir­cuit in biovalue, such that the trade transfers and converts biovalue into economic capital. Capitalism has always been based upon the mobilization of ­human bodily capital—­the recruitment of h­ uman bodies as goods or productive units. With the advent of a range of biotechnologies, vari­ous h­ uman potentials—­blood, plasma, body tissues, and gametes—­now circulate in an international commercial market. To be mobilized into production, each one of ­these products must undergo transformations to be defined as available and able to be used. They must ­either be sourced from the dead or somehow defined as excess to the current requirements of the living donor. In her work on surrogacy in India, Kalindi Vora (2015) summarizes this well when she suggests, “Before a h­ uman kidney or a given task or type of ­labor can become seemingly unnecessary in its immediate context and therefore available for outsourcing, it must be the object of specific cultural and material practices that establish it as unnecessary.” Within assisted reproduction, first, pathologization of the infertile takes place. The more pathologized an infertile person, the more justified are more complex interventions. This pro­cess

14

Intern ation a l Surrog ac y a s Disrupti v e Ind ustry

involves the extension of definitions of infertility beyond the biological to the social, whereby gay and single intended parents and healthy surrogate ­women all come to be viewed and positioned within clinics as patients. This involves the normalization of medical procedures, socialization of patients, and naturalization of the technologies. Next a series of sociotechnical pro­cesses must take place. For example, h­ uman embryos and gametes must undergo manipulation to be useful for assisted reproduction, becoming bio-­objects (Pavone 2017). The ambiguous status of such bio-­objects, as part h­ uman, part object, becomes reconfigured and recategorized through ­legal standards, clinical protocols, and ethical guidelines, or what are termed pro­cesses of “bio-­identification” allowing their storage, trade, and exchange. At each stage in this pro­cess, they approach the status of a product and acquire value (Pavone 2017). Similarly, within the commercial reproductive industry I describe in this book, surrogates and ova providers and their reproductive capacities undergo a series of screening tests, medical interventions, monitoring, and endometrial mea­sure­ments, through which they acquire commercial value. They are reconfigured from healthy ­women to surrogates then to patients, and as a pregnancy gestates, they and the fetus both ­labor to ensure a successful pregnancy and birth. However, in surrogacy, at the birth of the baby, the pro­cesses of bio-­objectification are then reversed, and the baby undergoes a reidentification and integration as a member of a new ­family (through rituals, ­legal pro­cesses, and passports). The surrogate too must be recategorized to her former status as a social being. Dif­fer­ent pro­cesses and practices within the organ­ization of surrogacy w ­ ill have consequences for the degree of bio-­objectification and abstraction that occurs and how successfully the restoration of social status takes place. With gestational surrogacy, clinics, surrogacy facilitators, and surrogates themselves use a range of strategies to define carry­ing a pregnancy as the employment of an excess potential not needed by the ­woman who is to act as a surrogate and hence able to be operationalized as a source of economic value. This is captured in Amrita Pande’s (2010b) discussion of the socialization of Indian surrogates. Vari­ous repre­ sen­ta­tions of the surrogate’s womb and her bodily ­labor in gestation and birth serve to position it as both fungible and able to be temporarily separate from the rest of her body. Similarly, gestational surrogacy—­a pro­cess requiring hormonal interventions, high-­tech IVF, and another person’s gametes—is redefined as a normal and accepted part of the reproductive options available to ­human beings. In many socie­ties this “strategic naturalisation” (Thompson 2005) of surrogacy is incomplete as l­ egal bans on gestational surrogacy in many countries attest. The extraction of biovalue from bodies is thus both a technical and an ideological proj­ect. In her essay on transnational adoption, Ann Anagnost (2004, 139) notes that “capitalism’s focus on the private sphere becomes expressed in the economy of desire that achieves its completion through a transnational cir­cuit of exchanges.” Further, she suggests that we need a concept of “transvaluation” that

Introduction 15

can “bridge regimes of economic value and desire as well as regimes of power in a global system complexly stratified (both within and across national borders) by conditions of economic in­equality and uneven development” (139). Throughout this book, I describe how international surrogacy draws together subjects inhabiting very dif­fer­ent conditions of life into the assemblage of international surrogacy. To paraphrase Ana Anagnost (2004), I ask what sort of transactions of value, power, and desire enable parents, embryos, surrogates, and c­ hildren to move across t­ hese “differentials.” As I delineate in this book, the forces working upon surrogates in Southeast Asia are complex and produced by local economic inequities but also social imperatives to earn money to support their families and secure their f­uture. Likewise, the forces producing relatively privileged intended parents traveling to Asia for surrogacy ser­vices include economic disparities between national economies, regional histories of economic subordination, local regulatory regimes that may restrict access, and a social desire for biological reproduction and parenting. Across t­ hese lie neoliberal consumer cultures and an informational network economy providing the imaginaries and means to conduct ­these exchanges. From ­these complex relationships emerges the production of the international surrogacy industry in its pres­ent form. How then can we trace the cir­cuits of value across this industry? I conceptualize the surrogacy industry as intersecting cir­cuits (see figure I.1). Carrying a pregnancy, giving birth, and reproducing have long carried affective value, social value as citizens and the means of social reproduction, but also the economic value of reproducing the ­labor force. Within the commercial surrogacy industry, t­ hese potentials now have the means to be converted into specific economic value. The first cir­cuit involves the biovalue of young w ­ omen’s bodies. As a resource, it requires the mobilization and extraction from a pool of healthy young fertile ­women ready to undergo the medical risks of IVF cycles, pregnancy, and birth—­ for each w ­ oman, her reproductive ability to gestate is a limited resource that can be repeated only a few times as it affects her health and ability to undergo further pregnancies. Surrogacy allows ­these ­women to convert their fertility into a limited economic resource to be used for their c­ hildren’s education or to buy a h­ ouse or repay debts. How bodily value is recognized is complexly related to historical relationships, socioeconomic stratification, race and ethnic privilege, and citizenship status. Within a given setting such as India, Thailand, or Laos, the bodies of poor rural ­women, urban mi­grants, and subaltern laborers are derogated as lacking value (hence their ­labor is cheap), while they are also the source from which surplus value is extracted to enable capital accumulation. Normally their fertility is located within a value regime in which it is viewed as a negative potential (in which their fertility is usually controlled and restricted as the targets of f­amily planning programs), but within the clinical ­labor of surrogacy it translates to a value regime in which it gains positive value.

16

Intern ation a l Surrog ac y a s Disrupti v e Ind ustry

Biovalue

Economic Value

Affective Value

Figure I.1. The surrogacy industry at the intersection of cir­cuits of value.

The second cir­cuit is that of the affective value of the work of surrogacy. In this, f­amily sentimentality, local moral worlds, and the historicity of discourses of motherhood and nurturance intersect to motivate, justify, and socialize the subjectivity and identities of p­ eople within the surrogacy industry. Other discourses of gay parenting, marriage equality, and cosmopolitanism feed into the affective economy. The affective value is displayed in the advertising of clinics, the discourses of intended parents, and the narratives of surrogates, which insist that surrogacy involves the exchange of h­ uman sentiment and love, not only economic exchange. It recognizes that the work of ­women in nurturing a pregnancy and giving birth is a special form of intimate ­labor that is entangled with emotions. The work of surrogates who are ­housed away from their own families also involves an expectation that they ­w ill transfer their affective l­abor away from their own ­children ­toward the pregnancy in a “chain of care.” Grand­mothers and relatives are enlisted to look a­ fter their own ­children in their absence (a pattern familiar within countries like Thailand where ­children are commonly raised in rural communities by kin while their parents migrate for work). This intimate capital is

Introduction 17

also converted into economic capital for profit within the industry, and the affective l­ abor is taken to reassure intended parents. The industry is productive of affective value: the love of a child and the joys of parenting and raising a f­amily are part of what it markets. Th ­ ese are the values in which the intended parents most heavi­ly invest their emotions and financial capital. The third cir­cuit involved in commercial surrogacy is that of economic value, the circulation of money involved in setting up businesses and clinics, direct foreign investments, the purchase of equipment and medi­cations, the salaries of staff, payments for ­lawyers, visa fees, airfares, and the provision of accommodation and other ser­vices. Clinics and facilitation businesses invest and trade upon their biocapital, governments earn export dollars from it, and intended parents make direct economic investments in it. In figure I.1 we see t­ hese vari­ous cir­cuits intersect—­these intersections represent the transfers in value (“transvaluation”) taking place within commercial surrogacy. Each transaction involves par­tic­ul­ar sociotechnical pro­cesses. Such a diagram might also represent the exchanges in other circulations of bodily tissue, gametes, blood, or plasma in which that defined as excess or “waste” is redefined as surplus value (Kroløkke 2018). Even within medical travel more broadly, sick bodies are transformed into economic profit—­each involves ­these circulations and transmutations of value. Th ­ ese cir­cuits may be local ones, or may cross national borders. They range across geo­graph­i­cal and jurisdictional spaces, and the spatial configuration both permits the industry and potentiates the exchange of value. The greater the spatial and social distances, the greater the potential economic profitability of the exchange. But in real­ity, unlike the simplistic visual meta­phor in figure I.1, the cir­cuits are not smooth, seamless conversions on a singular flat social field. For example, dif­ fer­ent bodies within the industry are valued differently. Race, ethnicity, class, and nationality result in differentiated valuations. The Californian surrogate or college-­ educated ova donor can command more value than the Laotian mi­grant. Healthy ­women of proven fertility with excellent endometrial linings are more desired as surrogates. Similarly, the affective value expressed by intended parents carries higher worth within surrogacy than that expressed by surrogates (for whom attachment is seen as an affective threat to the exchange). The cir­cuits are gouged with such stratifications that determine the prices and profits and become the means of market advantage for businesses.

Regulating Reproduction As ­will be evident in this book, the regulation of international surrogacy is problematic. Regulations in one country can have perverse consequences in another. In the case of international surrogacy, the trade would not exist except for the regulatory differences between states that encourage p­ eople to move, and t­ hese

18

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differences structure the circulation of ­people, tissues, and babies. For example, much of the reproductive travel around Eu­rope is due to the demand for ova (Rozée Gomez and de La Rochebrochard 2013; Shenfield et al. 2010)—­the vari­ ous legislative provisions restricting ova donations create a shortage in many countries. And, as w ­ ill be explained in this book, the legislative environment in Australia creates the conditions that encourage so many Australian ­couples to seek surrogacy overseas. For gay intended parents in many countries, the restrictions placed upon their access to surrogacy force them to seek surrogacy in other jurisdictions. Likewise, the rapidly changing regulatory landscape across Southeast Asia, its attempts to define limits to the industry, and its failures to do so have ­shaped the current form of the trade. Hence, part of what I explore in this book is the relationship of states to their regulatory authorities—­representing the regulatory cultures that in some countries are absent or inadequate, and in o­ thers abdicate their responsibilities, or are simply overwhelmed by the speed and flexibility of the technological advances and permutations of business models designed to exploit e­ very administrative oversight. In this book, I call for a more explicit anthropology of regulation and its implications for the reproductive lives of p­ eople. The example of surrogacy illustrates the strug­gles of law and policy to keep pace with technoscientific advances and a mobile and flexible industry. The subject of the regulation of international commercial surrogacy leads to a question about how space and law interact. In this context, Franz von Benda-­ Beckmann, Keeket von Benda-­Beckmann, and Ann Griffiths (2016) suggest that “spatial constructions as embodied in l­egal categories and regulations provide sets of resources that become part of the repertoire for ‘spatial idiom shopping’ and that can be mobilised against each other by a variety of actors in the pursuit of their economic and po­liti­cal objectives” (3). Law is “an arena in which the politics of space is enacted and negotiated, one that requires an understanding of the extent to which ­legal spaces are embedded in broader social and po­liti­cal claims” (3). Questions of the regulation of commercial surrogacy are therefore fundamentally questions of l­egal spaces and traversing bound­aries. Each transaction within international surrogacy is inherently spatial—­whether across virtual space or geo­graph­ic­ al national borders, space is manipulated to facilitate and actualize the surrogacy. The surrogates, ova, embryos, intended parents, medical staff, and internet transactions move across both geo­graph­ic­ al and l­ egal spaces. The actors involved are at once situated in both localities and regional networks, and by virtue of their being foreigners outside home jurisdictions, their transactions take place in legally empty non-­places, where legislation may have ­little application. Th ­ ese ­legal lacunae also allow a range of criminal activities to operate with relative impunity, representing the “rotten trade” I describe in chapter 6.

Introduction 19

Citizenship and Cross-­Border Reproductive Travel Linked to regulation is the issue of citizenship. In par­tic­ul­ ar, juridicial citizenship is clearly entangled in cross-­border reproductive trade, and sometimes overtly the subject of public controversy. As is very clear in the case of reproductive travel for surrogacy across borders, the meanings and entitlements of citizenship are redefined as p­ eople move across nation-­state borders to access forms of care other­ wise inaccessible to them. Their biological status, as medically or socially infertile, affects their entitlements as citizens and results in e­ ither voluntary or forced mobility to seek health care within other jurisdictions. Intended parents in this book frequently describe themselves as having “no other choice” than to travel overseas to pursue their dreams of forming a f­ amily. In some cases, the travel of intended parents to undertake assisted reproductive treatment including surrogacy breaches their own country’s national laws. For example, Turkish citizens are banned from participating in third-­party assisted reproduction in other jurisdictions (Gürtin 2011). Likewise, in certain states in Australia, extraterritorial laws apply to residents to ban them from traveling for commercial surrogacy. The issue of citizenship becomes especially salient when ­people who undergo international surrogacy arrangements bring the child born of ­these procedures back to their home nation-­state. Citizenship claims have historically been based ­either upon the place of birth (jus soli) or the right of blood (jus sanguinis), in which citizenship is passed from parent to child, legally enshrining a notion of belonging based upon notions of blood relationships (Deomampo 2013). Vari­ous countries privilege ­these claims. For example, the United States grants citizenship to ­those born on its soil; in contrast, Australia recognizes ge­ne­tic links; other countries such as Thailand generally recognize citizenship through the birth ­mother’s citizenship. Crossing international bound­aries thus complicates issues of citizenship for parents and c­hildren. As Deomampo (2013) notes, India recognizes citizenship through blood relationships, and at least one parent must be an Indian citizen for a child to be recognized as Indian. Hence, prob­lems have been encountered in relation to ­children of foreigners born through surrogacy being left stateless in India. States also vary in how they assign parentage to ­these c­ hildren, ­whether through proof of ge­ne­tic relationship, adoption, ­legal parentage o­ rders, or the person who gives birth. In some highly publicized cases, the ­children born through overseas surrogacy may end up legally parentless; o­ thers may have passports but their parentage may not be recognized by their home state (Whittaker 2012). In many cases of international surrogacy, t­ hese two issues of citizenship and parentage need to be negotiated and may remain contested. But citizenship is not just about juridical status. Bryan Turner (2001) argues that social participation through reproduction remains an impor­tant means of active citizenship in our society—­what he calls “reproductive citizenship.”

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Intern ation a l Surrog ac y a s Disrupti v e Ind ustry

Reproductivity remains a valued norm in our socie­ties, requiring an orientation ­toward and investment in finding a partner with whom to have ­children, planning for a pregnancy, and pursuing other ways to achieve a pregnancy if this is medically difficult or not pos­si­ble for a same-­sex ­couple. As I noted in my study of IVF in Thailand (2015), ARTs have become naturalized as a means of forming families and t­ here is considerable pressure upon infertile ­couples to try all means to reproduce. So, too, has surrogacy increasingly become part of our reproductive vocabulary as a means of fulfilling our life goals.

“Rainbow” Families This orientation ­toward reproductivity can also be seen within the rising numbers of gay c­ ouples forming families through surrogacy and the demand for marriage equality. Many jurisdictions restrict the access of gay ­couples and singles to assisted reproduction and surrogacy—in such cases, t­ hose wishing to have biologically related c­ hildren may resort to cross-­border arrangements. As I w ­ ill describe in chapter 3, gay communities are an impor­tant part of the advocacy movement for surrogacy, with organ­izations such as Gay Dads Australia offering advice, information, and support groups for their members. Similarly, the UK magazine We Are ­Family celebrates alternate families, many of which are formed through vari­ous ARTs. Likewise, gay intended parents form an impor­tant target market for clinics and facilitators working in “gay-­friendly” locations. The push for ac­cep­tance of non-­heteronormative families formed through surrogacy in turn is linked with the push for lesbian, gay, bisexual, transgender, intersex, queer (LGBTIQ) marriage equality internationally and to the citizenship claims by LGBTIQ community members to full equality ­under the law for their relationships and families. “Gabies” (­children of gay families) frequently feature in campaigns for marriage equality. For example, in Australia during the debate over marriage equality, a feature article in the Australian newspaper titled “We Are ­Family” profiled a number of gay families with ­children through surrogacy and discussed their desire to enjoy the same status as heterosexual families (Legge 2011). In turn, the rhetorical claim of the need for ­every child to have a ­mother and a ­father is the pivot of anti–­marriage equality movements such as Manif Pour Tous in France (News Wire 2016). ­People whose frame of reference is based upon a normative heterosexual nuclear ­family have difficulty accepting the complex kin and ­family structures made pos­si­ble with the assistance of ARTs and gestational surrogacy. The “­family” as a social form remains a power­ful po­liti­cal battleground, and c­ hildren born through surrogacy to gay parents are po­liti­cal symbols of social change and the strug­gle for ac­cep­tance of diversity. However, as gay intended parents remind us in chapter 3, the inherently po­liti­cal status of their families may be a reluctant one as they simply wish to be considered “just like any other ­family.”

Introduction 21

The diversity associated with surrogacy also crosses national and ethnic divisions. Although ­people who must use oocyte donations tend to ­favor oocytes from phenotypically similar providers, this is not always the case. Many families formed through surrogacy utilizing ova donors celebrate the visibly diverse ethnic origins of their ­children.

A Note on Language Before introducing the book further, it is impor­tant to note the terminology used. The terms used to describe surrogacy are themselves fraught and can constitute one’s orientation t­ oward the issue. Throughout this book I have made the decision to follow the terms used by my informants—­namely, to describe ­people who are commissioning a surrogate pregnancy as “intended parents,” indicating the importance of “intent” in discourse as a designator of the validity of their claims for their lifelong commitment as parents. I also use the term “facilitators” to describe the agents, brokers, and sometimes clinic employees whose function is to or­ga­nize the logistics of surrogacy. As is appropriate in such sensitive research, all the names of ­people, clinics, and doctors used in this book are pseudonyms. Real names are reported only when already referred to in public documents, such as publicly available media reports or clinic advertising. I describe ­those who gestate a pregnancy for another person as “surrogates.” I acknowledge that the use of this term is contentious, with some asserting that it highlights the commodification of ­women and dissociation of a pregnancy from a ­woman’s body and sense of self (see Strathern 2003). However, this is the term commonly used by my largely Australian in­for­mants and seems a ­simple, pragmatic, if not entirely satisfying designator. The politics surrounding the terms “gestational carrier” and “surrogate ­mother” that arise within Western theorizing is not a debate with which I wish to engage in this book as it does not reflect the vari­ous terms used throughout Asia. For example, in Thailand, where much of my research has been undertaken, the term maeumbun (literally “carrying-­merit ­mother”) is commonly accepted and one that does not divorce motherhood from the gestation and birthing experience and makes reference to Buddhist moral values. In her work on surrogacy in India, Sharmila Rudrappa reports that the Kannadese word for “surrogate” is literally translated as “rental ­mother” (2015, 108), a reminder that in some settings the economic exchange is not necessarily separated from the maternal relationship. When surrogacy is viewed as a cross-­cultural phenomenon, the simplicity of the term “surrogate” seems appropriate. I also use the term “surrogacy” without necessarily using specifiers such as “commercial,” “altruistic,” or “compensated.” This is b­ ecause the model of surrogacy I am referring to throughout is that involving commercial exchange. For Australians, the distinction between commercial and altruistic carries crucial ­legal consequences, as no commercial surrogacy is permitted in any Australian state,

22

Intern ation a l Surrog ac y a s Disrupti v e Ind ustry

and for t­ hose living in some states, entering a commercial transaction overseas is also illegal. Nevertheless, I also acknowledge the point made by Riggs and Due (2017) that in many ways the distinction between “altruistic” and “commercial” surrogacy, much like that between “love” and “money,” elides the complex overlaps between the two and largely ignores the logic of capitalism underpinning reproduction.

Tracking the Assemblage The concept of an assemblage is used as both a conceptual and a methodological strategy in this book. In her work on the generation of global reproductive products of urine, ova, and placentas, Kroløkke (2018) writes of “assemblage ethnography,” through which she traces the multiple and heterogeneous ways that reproductive donations come to be enacted via discursive, affective, technological, and situated orga­nizational practices. I or­ga­nize this book to trace the multiple sites and discourses of surrogacy in Asia, from online marketing, the intended parents, surrogates, facilitators, and local legislation to the sites in which they move. Each chapter then describes the dif­fer­ent reproductive actors, and how surrogacy interrelates with and is assembled through par­tic­ul­ar p­ eople, spaces, media, and technologies. My analy­sis seeks to understand the international surrogacy industry as dynamic and relational, moving across dif­fer­ent spaces, but also across time, as clinics, surrogates, intended parents, and companies move in reaction to legislative changes or in accordance with vari­ous stages of the surrogacy pro­cess. Assemblage ethnography also involves describing how the practices of surrogacy are enacted through laws, ethics, and discourses that traverse dif­fer­ent empirical contexts. My description of the international surrogacy assemblage involved the collection of diverse empirical material. This material was drawn from work carried out for a previous study of IVF clinics in Thailand in 2008–2009 as well as research undertaken from 2012 to 2017 involving formal and informal interviews with intended parents, clinic directors, surrogacy facilitation companies, medical and regulatory authorities, and l­awyers; field observations at clinics and surrogacy and fertility conferences and workshops; and analyses of marketing materials and documents from websites, online stories, and chatrooms. It draws upon my long experience working in Thailand and Southeast Asia on reproductive issues since 1991. Ethically, the research posed a range of challenges, the chief of which was the need to protect the identities and privacy of t­ hose involved in surrogacy arrangements. Throughout this book I have modified details to dissemble the participants’ identities. Particularly as the surrogacy industry was closed down in some countries and media portrayals of surrogacy became more negative, it became more difficult to recruit and formally interview intended parents, let alone surrogates and facilitators. Although I undertook formal interviews with twenty-­five intended parents who undertook surrogacy in Southeast Asia, I also conducted informal,

Introduction 23

opportunistic interviews with many ­others, often casual chats at surrogacy conferences and seminars that ­were not taped, so notes ­were taken afterward. Facilitators ­were interviewed at trade conferences, clinics, and hospitals, wherever I encountered them. In Thailand, discretion was key to gaining access to facilitators and some surrogates, though I did not meet with as many as I wished. I include voices of three surrogates I met. Further research is needed to capture more perspectives from surrogates, particularly ­those now working illegally or across international borders. Both surrogacy brokers and parents are highly protective of their surrogates and act as gatekeepers, making contact with surrogates difficult.

Overview of the Book The first chapter traces the conditions that spawned the rapid growth of an international surrogacy industry in Asia and Thailand. Prior to 2012, the Asian international surrogacy industry was largely concentrated in India, and in countries like Thailand, international surrogacy was relatively uncommon. Following a ban on gay surrogacy in India in 2012, the surrogacy industry in Thailand developed from a relatively uncommon and deeply private practice among a few Thai patients into a publicly advertised and promoted international trade. I use this case study to explore the f­ actors that spurred its rapid development and the organ­ization of the trade. To introduce the context of the trade in Thailand I describe the nature of “embodied capitalism” in Thailand and the continuities between vari­ous forms of ­labor that draw upon the mobilization of w ­ omen’s bodies. I then trace the growth of international “medical tourism” promoted by the Thai government, especially following the Asian financial crisis and subsequent economic collapse of 1997. For many years India dominated the market for commercial surrogacy in the region. The availability of surrogacy in India encouraged growth in the concept of traveling overseas for surrogacy as an affordable option. Thailand was less popu­lar due to its unfavorable parentage laws and Thai Medical Council guidelines that banned commercial surrogacy and ova donation arrangements. However, the lack of legislation to restrict commercial surrogacy combined with a growth in demand from foreigners saw the development of a commercial surrogacy industry. From 2011, Thailand grew in popularity as a destination as intended parent consumers became more critical of practices in Indian surrogacy and sought what w ­ ere seen as more ethical surrogacy relationships. In 2012, the introduction of restrictions in India limiting access to surrogacy to married heterosexual ­couples only provided further incentive to gay c­ ouples to seek an alternate destination. In response, Thailand was openly promoted by clinics as offering “gay-­ friendly” surrogacy ser­vices. By 2014, it was estimated that over a thousand babies ­were born to international intended parents through surrogacy in Thailand (Everingham, Stafford-­Bell, and Hammarberg 2014).

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Intern ation a l Surrog ac y a s Disrupti v e Ind ustry

The subsequent chapters explore dif­fer­ent ele­ments of the surrogacy assemblage. In chapter 2, I trace the specific understandings and values that framed surrogacy in Thailand and enabled and facilitated the growth of the commercial surrogacy trade. The surrogacy industry draws upon not only the reproductive resources of the population but also local moral economies to sustain the ­labor. In each setting, local ideologies and religious understandings feed into perceptions of gestational surrogacy. I begin by reviewing ­these vari­ous ideologies. In Thailand, surrogacy is described by surrogates as a form of Buddhist merit making and an opportunity to provide for one’s own ­children. This offers a further example of how t­ here are other values beyond the strictly economic that are negotiated in commercial surrogacy relationships. “Situated ethics” allow us to locate and understand the tensions, competing logics, and contradictions within ethical practices. In crossing borders, transnational surrogacy entails crossing multiple social bound­aries, as w ­ omen from lower and middle-­income countries, of dif­fer­ent ethnicity, socioeconomic status, language, and religion, act as surrogates for p­ eople from elsewhere. Such exchanges involve complex differential power relations and exemplify further the stratification of reproduction. But the crossings that occur are also between differing meanings and understandings of reproduction, money, and kinship. In chapter 3, I begin with the complex and emotional narratives provided by intended parents about their quests to form their desired families. In this chapter, I pres­ent the voices of intended parents through three detailed case studies. Firsthand accounts by intended parents complicate the ready ste­reo­types that proliferate in popu­lar and some academic accounts of cross-­border surrogacy. The selected case studies typify the intended parents I met in the course of this research. Joseph Elise and Peter and their partners formed their families through surrogacy in Thailand. I interviewed Elise in Thailand shortly ­after the birth of her second d­ aughter at the time, when she was still uncertain about how long it would be before they could take her back to Australia. I interviewed Peter four months ­after the birth of his twins, when they ­were back home and settling into their new routines. The detailed extended narratives provided by t­ hese parents reveal that intended parents prepare for and think very carefully about their decisions and the related implications. In their own ways, they articulate the personal ethical values they brought to their decisions and their awareness of the criticisms that o­ thers might make against them. They describe the reasons why and how they chose to travel to Thailand for surrogacy, their relationships with their surrogates, and the effects of the surrogacy upon their relationships with families and friends back home. Combined with the observations offered by other in­for­ mants, their accounts detail how the industry operated in Thailand and provide their reflections upon how surrogacy might be pursued in a more equitable fashion. They speak with love and won­der of their ­children and of their hope that they be accepted as ordinary families, and that the means of conception and gestation define neither them nor their ­children.

Introduction 25

Facilitators are the focus of chapter 4, in which I describe the vari­ous types of facilitation companies and surrogacy broker companies that developed in response to the demand for surrogacy, as well as the organ­ization of the industry across international bound­aries. Three major models of facilitation companies can be discerned, from small, single-­person ser­vices to transnational companies with multiple headquarters. I describe the surrogacy industry as an assemblage of brokers, travel agents, clinics, l­awyers, “spotters,” accommodation providers, hospital and embassy staff, intended parents, surrogates, and ova providers. Facilitators undertake a special role in articulating ­these vari­ous parts of the assemblage together. This chapter also examines the narratives of facilitators, and how they draw upon their personal experience of IVF as a means of claiming authority and expertise. They epitomize many characteristics of post-­Fordist enterprises: they are flexible and able to move operations and capital across borders with relative ease; they deal in commodities of information and ser­vices; they rely upon information technologies for their marketing and operations; and they operate transnationally, circumventing local regulations and restrictions. Chapter 5 examines the role of digital technologies as crucial to the commercial surrogacy industry. International surrogacy would not be pos­si­ble without t­ hese technologies to facilitate the marketing and promotion of companies, to mediate information exchange among the cybercommunity of intended parents, and to monitor and permit communication through the surrogacy pregnancy. Such technologies also encourage certain imaginaries and enactments of subjectivity by intended parents. I liken the use of ­these technologies as digital umbilical cords that nurture and connect intended parents to their pregnancies. The economist Jagdish Bhagwati (2002) describes the trade in “bads,” such as the traffic in h­ umans, babies, bodies, and slavery, as “rotten trade.” In chapter 6, I confront the darker side of the international surrogacy industry by considering a series of cases that revealed the existence of an or­ga­nized criminal market within the surrogacy trade in Thailand and the inadequacies of the Thai regulatory framework. At the height of the boom of the surrogacy industry in Thailand, w ­ omen and their body parts ­were trafficked by networks of or­ga­nized crime to satisfy the demand for their profitable reproductive capacities. The vulnerability of ­children came to prominence in the Baby Gammy case, described in chapter 7, which eventually led to the banning of international commercial surrogacy in Thailand. In August 2014, the media ran the story of a baby boy with Down syndrome who had been abandoned in Thailand by his Australian intended parents to be cared for by his gestational surrogate, while his twin ­sister had been taken back to Australia. Of all the stories about surrogacy in Thailand in 2014, Baby Gammy’s drew worldwide attention to the international surrogacy industry that had developed in Thailand and the potential consequences for the ­children, surrogates, and parents involved. Despite earlier controversies, it was the Baby Gammy case that marked the limit of tolerance for the Thai authorities. In

26

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this chapter, I examine the case in detail, not only the events that took place but also the anx­ie­ ties the case fed into and triggered in Thailand and Australia, in order to understand why and how it precipitated the closure of commercial surrogacy in Thailand. The perfect storm of an abandoned disabled child; a former sex offender ­father; a charismatic, young, quietly spoken, and impoverished surrogate; and an unscrupulous surrogacy agency, all set within the context of a military coup and poorly regulated clinics, caused embarrassment for the governments concerned and drew worldwide attention to the difficulties of monitoring or regulating international cross-­border transactions. The case encapsulated a number of moral panics prevalent in Australia at the time and became a catalyst of public debate. The international media coverage severely damaged Thailand’s image and triggered a crackdown by the Thai military upon the industry and the passing of legislation outlawing international surrogacy. A characteristic of the cross-­border assisted reproduction industry is its flexibility. Throughout the region, once jurisdictions change legislative conditions, the industry responds with spatial relocation. Across Asia, this pattern has been repeated. In chapter 8, I examine the rapid movement of the commercial surrogacy industry to other parts of Southeast Asia. The closure of Thailand and ­later Nepal saw the rise of Cambodia as a destination, despite warnings about the uncertainties and lack of protections for surrogates and intended parents and the difficulty of negotiating exit procedures for ­children born in that country. Laos has become the latest destination. I examine the growth of a new model of surrogacy involving the movement of surrogates, gametes, embryos, and medical staff across borders to avoid national regulations. Operations may be conducted from anywhere—­all that is needed is a computer and internet connection. However, with ­these movements come greater risks to surrogates, parents, and babies born through ­these arrangements. The conclusion explores the potential for the global regulation of cross-­border reproduction. The current distribution of regulation is uneven—­assisted reproduction is the most heavi­ly regulated clinical activity in some countries, while remaining un­regu­la­ted in ­others. Most models of regulation draw upon US and Eu­ro­pean patterns, assuming the institutional capacity, ­human resources, and bud­ gets to maintain models of licensing, monitoring, and enforcement. In the conclusion, I reflect upon the inadequacies of ­these models for many countries of Asia, drawing on the case study of Thailand to reflect upon the need for anthropological studies of greater depth on the pro­cesses and implementation of regulatory regimes. I also examine vari­ous proposals for “fair trade” surrogacy, “national self-­ sufficiency” regimes, and extraterritorial bans and the prospects for bilateral and multilateral agreements to regulate the industry. The model of surrogacy currently pursued across Southeast Asia is producing vulnerabilities for surrogates, intending parents, and ­children requiring a response that balances the rights of all with the need for protections.

1 • THE GROW TH OF DISRUPTIVE COM MERCIAL SURROGAC Y IN ASIA

The world is a ­family, ­there are no frontiers and no borders. (Dr. Patel from Akanksha Infertility and IVF Clinic in Anand, India, speaking at a Surrogacy Australia conference, 2013)

The model of surrogacy that emerged in India and then spread to other countries in Asia disrupted previous patterns. It was distinctive for several reasons: it developed within countries with very few formal regulations; it offered options banned or heavi­ly regulated in other parts of the world; it took advantage of lower ser­vice costs to offer mass affordability and low-­cost ova donation and surrogacy options; it developed clinical practices that maximized speed and con­ve­nience in undertaking surrogacy pregnancy; it emphasized supply chain segmentation; and it was highly responsive and flexible to consumer demands and l­ egal contexts. Prior to the advent of this new form, surrogacy was a complex affair in ­those countries that permitted it, involving lengthy l­ egal considerations; counseling, screening, and se­lection procedures; relationship building; and court deliberations. In this chapter, I introduce the history of this innovation as it spread from India to other parts of Asia. I describe the development of the industry as well as the vari­ous characteristics of the model promoted in Asia. This language of surrogacy as an industry disturbs and offends some p­ eople, especially intending parents; however, as a description of a systematic, commercial enterprise built around the production of surrogacy arrangements, it is accurate. For example, before the ban on international surrogacy in India t­here w ­ ere reported to be three thousand clinics offering surrogacy, which ­were said to earn about US$84 million a year (Doshi 2016). Another estimate in 2011 suggested the industry was worth US$20 billion (Nayak 2014). Add to this the countless facilitation agencies and other companies involved, and the scale of the trade demands such a descriptor as “industry.” As I describe in the last chapter of this book, the model of commercial surrogacy that developed in India also changed in response to 27

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Intern ation a l Surrog ac y a s Disrupti v e Ind ustry

circumstances—­namely, legislative changes that forced the industry to develop more ways to circumvent restrictions, in par­tic­ul­ar through the development of highly mobile, “hybrid” surrogacy schemes across borders. The term “disruptive innovation” derives from the work of Joseph Bower and Clayton Christensen (1995) in their article “Disruptive Technologies: Catching the Wave,” which was aimed at business man­ag­ers making decisions about purchasing new technologies. They defined a disruptive innovation as one that creates a new market and value network, displacing previously established forms and alliances. Technologies such as the disk drive, automobile, and mobile phone may be viewed as disruptive; as innovations, they created new values, markets, and social change. This notion of innovative paradigmatic shifts that produce new markets and consumer demands with social consequences is an appropriate description for commercial surrogacy as it developed in Asia, which fundamentally changed the nature of the surrogacy market, creating new markets and demands for surrogacy among groups who previously had been unable to afford overseas surrogacy. It had social consequences not only for the families involved, but also in terms of broader access to surrogacy as a means of reproduction and social perceptions of the practice.

Previous Models: Surrogacy as Practiced in the United Kingdom, the United States, and Israel Prior to the advent of the disruptive model that emerged in India around 2004, gestational surrogacy had been available within some countries since the mid1980s. Countries where surrogacy has been practiced over a long duration include the United Kingdom, the United States, and Israel. An examination of the organ­ization of surrogacy in t­ hese countries allows a comparison with the Asian disruptive model. Working within dif­fer­ent sociocultural and regulatory frameworks, t­ hese three locations differ in the degree of state intervention and oversight and the degree of market involvement. Elly Teman (2010, 10–11) makes the insightful observation that the organ­ization of surrogacy in ­these states depends upon each state’s core cultural values; some states such as California exemplify core values of individualism and capitalism, whereas the United Kingdom and Israel reflect more communitarian values, with the United Kingdom strictly prohibiting commercial surrogacy exchanges. United Kingdom In the United Kingdom, all forms of surrogacy are l­ egal on an altruistic and noncommercial basis. Commercial surrogacy is prohibited u­ nder the Surrogacy Arrangements Act 1985, as is advertising for, or as, a surrogate. No commercial brokers exist. Limited forms of compensation are permissible, to cover what are described as “reasonable expenses,” although ­these are often undocumented as



The Growth of Disruptive Commercial Surrogacy in Asia 29

expenses and reflect a “­going rate” of around £10,000 (US$13,949) (Crawshaw, Blyth, and van den Akker 2012). Surrogacy arrangements are not legally enforceable (­Human Fertilisation and Embryology [HFE] Act 1990). With no commercial brokers involved, surrogacy arrangements are built upon relationships between the surrogate and intending parents and surrogates choose to assist parents with whom they feel a connection and trust. Research on surrogates in the United Kingdom finds that they are motivated by altruistic reasons, primarily the desire to help childless ­couples ( Jadva et al. 2003). ­Under the guidelines associated with the HFE Act, clinics must offer counseling for surrogates and commissioning parents, however undertaking counseling is not mandatory. In addition, a survey of trends and current practices associated with surrogacy in UK licensed fertility clinics found that many clinics had their own additional requirements (Norton et al. 2015), with some clinics insisting on mandatory counseling and written surrogacy agreements. The time delays, difficulties in recruiting surrogates, and perceived complexity as well as the shortage of ova donors result in many UK intended parents seeking surrogacy as well as commercial ova donation in other countries (Culley et al. 2011). United States ­Until the advent of the disruptive models of surrogacy in Asia, many US states ­were notable as having the most laissez-­faire regulatory context. In California particularly, the organ­ization of the industry most closely presaged the aggressively entrepreneurial model of surrogacy that developed in Asia. The United States is one of the few industrialized countries that does not federally prohibit commercial/compensated gestational surrogacy, although regulations vary by state, with some allowing all forms of surrogacy and o­ thers prohibiting it (Finkelstein et al. 2016; Spar 2006). Gestational surrogacy arrangements are determined by state regulations and individual clinical protocols. For example, states such as California, Illinois, and Delaware have comprehensive regulation for surrogacy contracts and requirements for both intended parents and gestational surrogates. Other states such as New York prohibit surrogacy entirely. Depending on the state, the conditions for surrogacy differ. For example, Illinois regulations specify age, prior parity, and health characteristics for a surrogate, mandate physical and ­mental health evaluations, and specify the need for in­de­pen­dent ­legal counsel for the surrogate and a health insurance policy. Intended parents must also obtain ­legal counsel and a ­mental health evaluation. Other states such as California have minimal requirements and do not specify the need for counseling or in­de­pen­dent ­legal advice, but arrangements usually proceed ­under negotiated contractual arrangements (Finkelstein et al. 2016). Throughout the United States, surrogacy facilitator companies and brokerages offer a range of ser­vices to match surrogates with intended parents, but surrogates are ­under no obligations and generally have the power to choose t­ hose intended parents they wish to assist. Larger agencies

30

Intern ation a l Surrog ac y a s Disrupti v e Ind ustry

usually employ case man­ag­ers and counsellors to support surrogates during the pregnancy. Other surrogates act in­de­pen­dently of any brokers. The high demand and relative scarcity of surrogates means they have a relatively high bargaining power. Most surrogates report the desire to help ­others have ­children as their primary motivation, influenced by their own positive experiences as parents (Hohman and Hagan 2001; Ragoné 1994). Citing several studies in the United States and United Kingdom, Busby and Vun (2010) concluded that financial gain was rarely, if ever, the primary motivation for ­women acting as surrogates; rather, they valued an emotional bond with the intended parents. The US market-­driven model has been criticized for its commercialism. Over twenty years ago Dorothy Roberts (1995) drew attention to the potential for exploitative relationships in US surrogacy, especially among poor and African American surrogates. Likewise, ­there are concerns over intrusive surveillance and monitoring of surrogates during pregnancy and restrictions on their activities and medical choices. Some states have ­adopted regulations seeking to minimize the potential for such issues. Fi­nally, the common practice in US clinics of the transfer of two or more embryos has been criticized for the increased risks for multiple live births and morbidity and mortality for both the surrogate and babies. A study reporting outcomes of IVF cycles using gestational surrogates in US clinics found almost 80 ­percent of cycles involved the transfer of two or more embryos, with fewer than 20 ­percent of intended parents opting for elective single embryo transfer (Perkins et al. 2016). The United States has experienced an increase in surrogacy, with Perkins and colleagues (2016) reporting a quadrupling in IVF cycles using gestational surrogates since 1999, resulting in over eigh­teen thousand babies. They suggest the reasons for this increase include the growing number of state jurisdictions now allowing gestational surrogacy, an increasing number of clinics that are performing surrogacy cycles, and a dramatic growth in surrogacy cycles for international intended parents. Israel In ardently pronatalist Israel, a model of surrogacy has developed that involves considerable state oversight. A law permitting all forms of surrogacy was passed in 1996. Commercial arrangements are allowed, but all surrogacies are regulated through a surrogacy approval committee that gives all approvals and oversees the signing of all contracts. This makes the surrogacy arrangement quite slow compared to in the United States (Teman 2010). Surrogacy is permitted for Israeli citizens and permanent residents only, and all parties must share the same religion to satisfy concerns over the halachic status of babies who must be born from a Jewish ­woman’s womb to be classified as Jewish. As Susan Kahn (2000) documents, provisions for surrogacy are conservative as special precautions are taken to prevent any infractions of Jewish religious law. Intrafamilial surrogacy is for-



The Growth of Disruptive Commercial Surrogacy in Asia 31

bidden and surrogates must be single. Likewise, the law specifies that intended parents must be a man and w ­ oman and the f­ather’s sperm must be used in fertilization. Elly Teman (2010), in her ethnography of Israeli surrogacy, provides a useful description of the pro­cess through which surrogacy arrangements are made. Intended parents and surrogates may ­either meet in­de­pen­dently or be matched through an agency. The state centralizes screening criteria requiring police checks, medical histories, recent medical tests, and tests proving they do not abuse drugs. Israeli surrogates must be at least twenty-­two, be unmarried, have at least one child of their own, and pass other medical screening requirements. Intended parents undergo intensive screening. They must be legally partnered in a heterosexual relationship, and the intended m ­ other must provide stringent medical evidence she requires surrogacy. A contract specifies the payments, terms, and conditions, including how much contact the surrogate and intended parents want during and ­after the pregnancy. ­These contracts also specify ­whether the surrogate is willing to undergo prenatal testing, selective reductions, or an abortion if abnormalities are detected, and the number of attempts she is willing to undergo. Provision for counseling for the surrogate before the pregnancy and for six months a­ fter the birth is provided, although Teman (2010) reports that few ­women in her sample felt the need for counseling. Surrogates usually have regular contact with the intended parents during the pregnancy. ­After birth, the intended parents are made temporary custodians, but a state welfare official is appointed sole guardian of the baby ­until the intended parents are awarded a parental order in a ­family court. Teman (2010) concluded that the quality of the relationship between the intended parents and surrogate was crucial in determining a surrogate’s satisfaction with her experience. She documents the intense emotional bonding between the pregnant surrogate and intended mother-­to-be, relationships that in most cases continued in some form ­after the birth. Surrogacy arrangements in ­these three countries require navigating vari­ous ­legal requirements, vari­ous degrees of counseling and screening, and dif­fer­ent levels of state oversight. Although some involve facilitators to match surrogates to intended parents, arrangements usually involve direct communication between both parties and negotiation and a degree of l­egal protection. Clinics may have additional requirements but are not entirely self-­regulated. As a result, the model of surrogacy is much more bespoke, slower, and legally accountable and involves direct contact between surrogate and intended parents. They reflect more of a sense of “incomplete commodification” (Radin 1996) in which surrogacy ser­vices and ova donations enter the market u­ nder regulated circumstances. What is also notable is that studies conducted in ­these settings indicated that most surrogates find the surrogacy experience a positive one. Most UK surrogates report positive experiences, and few regret their decision to become a surrogate (Blyth 1994; Jadva et al. 2003). The quality of the relationship between surrogates

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and intending parents has been found to play a crucial role in the surrogacy experience (Fisher 2013; Roberts 1998). In studies of US and UK surrogates, most surrogates and surrogacy families remained in contact in the short term (Blyth 1994; Jadva et al. 2003). One study of thirty-­four UK surrogates found that surrogates maintained contact with 79  ­percent of ­couples and 76  ­percent of ­children one year ­after the birth of the child, although the level of contact varied greatly ( Jadva et al. 2003). Similarly, a 2012 study of thirty-­three surrogacy families found that 61 ­percent remained in contact with their surrogate ten years ­after the surrogacy and 75 ­percent ­were happy with the amount of contact they had ( Jadva et  al. 2012). Likewise, a study by Imrie and Jadva (2014) of surrogates who had completed a surrogacy arrangement approximately seven years previously found that most ­women remained in contact with the surrogacy families and reported positive relationships. Indian Innovation in the Organ­ization of Commercial Surrogacy Although possibly inspired by the organ­ization of businesses in California, India led the way with a new model of commercial surrogacy—­a highly commodified, rapid production model utilizing readily available surrogates at lower costs for a mass market. This was facilitated by 2002 legislation that banned all forms of surrogacy other than commercial surrogacy, although, at the time, the government did not regulate the clinical procedures, contracts, or surrogate-­client responsibilities and relationship. Therefore, in effect, a green light was given to commercial surrogacy transactions with few safeguards or state interference. Within a few years, India was being promoted as the “womb of Asia,” with a dramatic rise in the number of clinics offering affordable surrogacy ser­vices for foreign c­ ouples as well as nonresident Indians and local clients. Surrogacy agencies and facilitation companies sprung up in response. Between 2004 and 2006, the number of Indian websites advertising surrogacy ser­vices qua­dru­pled, with marketing oriented to foreigners (Smerdon 2008). They capitalized upon the availability of highly trained doctors, English-­speaking medical staff, a plethora of private hospitals and clinics, lower costs, and rapid access to ser­vices. Importantly, ­these clinics also offered ser­vices to gay male ­couples, who have ­great difficulty accessing ser­vices in most countries. Sharmila Rudrappa (2015) calls this the “production line” of surrogacy, as she traces the connections and parallels between Bangalore’s garment industry and surrogacy. She notes that within a context in which exploitation of poorer w ­ omen within industries is commonplace, from the point of view of surrogates, in many ways “outsourced” surrogacy offered a less exploitative alternative. The entrepreneurial Indian clinics offered a range of innovations: the ready availability of a pool of surrogates, the practice of cycling several surrogates at once to ensure their ready availability for an embryo transfer, the use of multiple surrogates if requested, the “surrogacy ­houses” that ensure strict monitoring of the

­Table 1.1

The Growth of Disruptive Commercial Surrogacy in Asia 33

Disruptive surrogacy model

Regulated model

Disruptive model

Shortage of surrogates

Ready pool of surrogates

Surrogate chooses IPs

IPs choose surrogate

One surrogate cycles when surrogacy contract commences

Several surrogates cycling before any contract to allow readiness in short time on demand

Surrogate negotiates contract with own ­legal advice

Contract often in En­glish, usually no separate ­legal advice for surrogate

Expensive

Affordable

One surrogate at a time

Parallel surrogacies if requested

Slow, can take a ­couple of years

Fast, can be completed within a year

Life insurance for surrogate usually included in contract

Life insurance rarely included in contract

In­de­pen­dent counseling for IPs and surrogate—­sometimes mandated by law

No counseling of IPs, ­little counseling for surrogates and not by in­de­pen­dent counselor

Within one country

May be across multiple countries’ borders

One embryo transferred (may differ in the US)

Multiple embryo transfers common

No guarantees

Package deals for guaranteed take-­home baby

Usually at own home with ­children

Usually accommodated in surrogacy homes or close to clinic separated from own ­family

Usually IPs meet surrogate

Often anonymous

Communicate directly

Communication mediated by facilitator or translator

Option for natu­ral birth

Usually caesarean section compulsory

Long-­term relationship with surrogate common ­after birth

Long-­term relationships rare

pregnancies, the “package deals” guaranteeing a take-­home baby, and the introduction of a surrogacy visa by the Indian government. ­These ser­vices all contributed to a new, accessible, rapid, open form of surrogacy that made the pro­cess seem easy, anonymous, and relatively straightforward for c­ ouples with limited resources who could not contemplate the costly US alternative. What appealed to some intending parents was precisely the avoidance of intimacy, and its associated emotional and kinship complications, that was offered by anonymous surrogacy in a foreign land, where differences in language, status, and culture ensured limited if any contact or relationship claims with the surrogate post-­pregnancy. The surrogacy industry that developed in India was marked by aggressive entrepreneurialism mixed with a noblesse oblige paternalism. For example, Dr. Nayna

34

Intern ation a l Surrog ac y a s Disrupti v e Ind ustry

Patel summarized the Indian model in a speech given at a 2013 Fertility Society conference in Brisbane. Her Akanksha clinic in Anand, India, was featured in the BBC Four documentary House of Surrogates (2013). Dr. Patel began offering surrogacy ser­vices in 2004 and drew attention to international surrogacy when her clinic was featured on an Oprah Winfrey show following a US c­ ouple ­going to her clinic for surrogacy. She spoke of “no frontiers and no borders” in f­ amily formation through surrogacy, and described the industry as “market and wish driven.” She began her talk with a detailed account of the Hindu story from the Mahabharata of the birth of Balarama, in which Vasudeva gave an embryo to Rohini for protection, as evidence of the cultural acceptability of surrogacy and IVF within Hindu culture and religion.1 While describing with pride the 20 to 30 ­percent annual growth her clinic was experiencing, she also spoke of her work as a form of “social work” and a passion, “never a business,” and stated that all surrogates ­were personally screened to be “God-­fearing, sincere, no vices and religious and spiritual” and that surrogacy “empowers w ­ omen with a sense of worth and authority” and “liberates t­ hese w ­ omen,” each of whom has a “right to fulfil her dreams.” She claimed that most surrogates use their money to build a ­house or improve their h­ ouse, with a small number starting a business or investing in their ­daughter’s education. Dr. Patel described the clinical organ­ization and practice at Akanksha clinic. In the absence of a specific relevant law at the time, the pro­cess was self-­ regulated by clinics and agents. Like most of its competition, the Akanksha clinic provided anonymous egg donors with no waiting period and offered plentiful screened surrogates ready for embryo transfer. In 2013, clinical practice at Akanksha involved the transfer of up to three embryos to a surrogate, resulting in a high number of multiple pregnancies. This was consistent with practices in Indian clinics more generally due to the belief that it increased the chances of a successful implantation and could cater to the desires of ­those intending parents who wanted twins. This is despite the World Health Organ­ ization (WHO) recommending single embryo transfers so as to limit the risks to both the ­mother and babies posed by multiple pregnancies (Vayena, Rowe, and Griffin 2002). Surrogates ­were expected to accept embryo reduction from a multiple to a twin pregnancy if required, and if they disagreed they ­were not accepted as a surrogate. An Akanksha contract stipulated responsibilities during the surrogacy, and ­women w ­ ere contracted for two attempts and could be a surrogate up to three times for the same c­ ouple. Surrogates stayed away from their families at a shared dormitory, “surrogate home,” during their pregnancy, “­because some d­ on’t want their neighbours to see them,” and during that time undertook training in yoga, embroidery, En­glish, tailoring, and choco­late making as well as banking so that they w ­ ere “empowered and uplifted” through their experience. Akanksha had set up a “Surrogate Trust” to help support the education of the c­ hildren of surrogates. According to Dr. Patel, her clinic charged



The Growth of Disruptive Commercial Surrogacy in Asia 35

US$24,000 for a surrogacy; surrogates received US$9,000 to US$10,000 of that fee. This model was not unique to Akanksha clinic. At conferences and fertility shows, other clinics such as VITA Fertility Clinic Mumbai and SCI Healthcare promoted similar models of surrogacy, with an emphasis on no delays, the anonymity of ova donors and surrogates, and the use of surrogate dormitories to allow surrogates to avoid stigmatization, while also promising the monitoring of pregnancies, enforced rest of surrogates, a caesarean section, and efficient pro­cessing of paperwork. Ethnographic work conducted in India in a number of clinics confirms that the model described above was commonly practiced across the country. The w ­ omen preferred by clinics for surrogacy tended to be very poor and illiterate, with clear economic motives for undertaking surrogacy (Pande 2009; Vora 2009). Writers such as Sharmila Rudrappa (2015) note that despite the paternalism and strict discipline they face, Indian surrogates choose the option of surrogacy as the best occupation among a limited range of occupations available to poor, uneducated ­women. In her ethnography based on an Indian clinic, Michaela Stockey-­Bridge (2017) found that most surrogates w ­ ere ­house­wives or factory workers earning US$0.50 per hour or approximately US$120 per month. The majority of their husbands ­were in low-­paying occupations such as security guards earning US$85 per month, or self-­employed rickshaw pullers or cooks earning US$120 to US$180 per month. For the surrogates she interviewed, earning US$6,000 for a surrogacy represented more than they could earn in five years. Such findings are confirmed by a report from SAMA Resource Group for W ­ omen and Health (2012), which found that surrogates usually worked in seasonal and informal work characterized by low pay, poor working conditions, no social security, long hours, and tedium. Most had immediate financial needs such as debts, while ­others wished to purchase land, build a h­ ouse, or educate their c­ hildren. Surrogacy offered the opportunity to earn the equivalent of an annual wage in a lump sum. The disparity between reports of earnings as equivalent e­ ither to five years’ wages (as reported for the clinic studied by Stockey-­Bridge) or an annual wage (reported in the SAMA report) may be due to the fact that the SAMA report averaged over a large sample of clinics and Stockey-­Bridge (2017) worked in a clinic targeting foreign intending parents. The difference highlights the lack of transparency over the ­actual earnings of surrogates in ­these transactions. The ideological socialization undertaken in clinics ensured that this form of clinical ­labor, which was socially stigmatized by the broader community, was affirmed as honorable work. Surrogates w ­ ere told that surrogacy was “spiritual work” that put them “next to God” (Stockey-­Bridge 2017), and was an altruistic act of bhalayi (goodness benevolence) that allowed another ­woman to experience the joy of motherhood (SAMA Resource Group for ­Women and Health 2012). Amrita Pande (2011) also notes that surrogates ­were told that they ­were privileged

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Intern ation a l Surrog ac y a s Disrupti v e Ind ustry

to have this opportunity and that it was “God’s gift to them” for which they should be grateful. Such socialization into surrogacy ensured a docile and passive workforce that rarely questioned medical decisions and followed the instructions of the facilitators and clinic staff (see chapter 2). On the ­whole, the Indian model was one of anonymity—­only a few clinics allowed any contact between the surrogate and intending parents. Intending parents could usually choose their surrogate from a se­lection of profiles posted on the clinic’s or agent’s private website, but in many cases it was the physician who made the choice, according to availability and readiness. Contracts specified the conditions and sums to be paid, and surrogates ­were paid a premium for a multiple pregnancy. All births ­were caesarean sections. Other conditions, such as ­those related to diet and rest, could also be specified in the contract, but ­these ­were usually in En­glish and not amended by the surrogate (Rozée and Unisa 2016). As individual subcontractors, each with a contract to fulfil, surrogates had no collective bargaining power and their agent mediated all communication. Most clinics ­housed surrogates in collective accommodations to allow for the close supervision and monitoring of the pregnancy, but in a few cases w ­ omen could live at home or be ­housed near the clinic.

The Gestation of Surrogacy in Thailand The birth of Thailand’s first dek lord kaew (glass tube child) baby “Mung Ming,” conceived through IVF in 1987, heralded the beginning of a rapid growth in both assisted reproductive expertise and the social ac­cep­tance of ART in Thailand (Whittaker 2016). By 2007, ­there ­were thirty clinics licensed to provide assisted reproductive treatments in Thailand, providing over 4,288 IVF cycles per year—­ evidence of the rapid penetration of new reproductive technologies across the country (Vutyavanich, Piromlertamorn, and Ellis 2011). Although t­ here is no definitive evidence of it, the first gestational surrogacy using IVF took place in 1991, at the prestigious public teaching hospital King Chulalongkorn Memorial Hospital. It was a highly confidential affair, with ­little publicity. Early cases of surrogacy ­were usually familial, involving s­ isters or sisters-­in-­law. But prior to 1991, it is likely that a few wealthy Thais ­were already traveling to the United States to pursue commercial surrogacy. For example, in September 1988, it was reported that Mayura, the actress and daughter-­in-­law of the then minister for foreign affairs, had asked her s­ ister to be a surrogate for a child using Mayura’s eggs and Mayura’s husband’s sperm and had already consulted doctors in Boston (Anonymous 1988a). She was quoted as saying that now that Thai doctors had created an IVF baby she was reconsidering ­doing this in Thailand. This report was followed by a short commentary outlining the ­legal pre­ce­dents such a case would set. In a follow-up article to the case (Anonymous 1988b), Mayura denied that she had paid her s­ ister to be a surrogate m ­ other, claiming that it was



The Growth of Disruptive Commercial Surrogacy in Asia 37

something she had considered in the past, but she had since given up on attempts to have a child, and this story was simply to promote her latest movie. She also stated that she felt very discouraged by the negative criticism of herself and her ­sister. In Thailand, changing social attitudes ­toward surrogacy ­were reflected in the language used to describe it. When the issue first appeared in newspapers, the terminology used in the Thai language was unstable. In 1987, a range of terms ­were used: tham hay mii luk day doi kanjang khonuentangkhan (having a child through the use of another person to carry the pregnancy), kanrapjang tangthong (pro­cess of hiring a pregnancy), and kanrapjang tangkhan (hiring a pregnancy, using a more formal term for pregnancy) (Anonymous 1987a, 1987b, 1987c, 1987d). The use of the term rapjang implied hired l­ abor and a commercial relationship. By 2000, the term kanrapjang um thong (pro­cess of hiring to carry a pregnancy) was used for commercial surrogacy, but also the term umbun (Anonymous 2000). By 2004, the terminology had stabilized and umbun was used for all forms of surrogacy (Anonymous 2004). Unlike the other terms, umbun literally means “carry­ing the merit”; um is used when referring to carry­ing c­ hildren around, and the merit referred to is the Buddhist merit imparted to ­women when pregnant and giving birth. This has now become the standard transliteration for surrogacy in Thai. In this way, the concept of surrogacy became incorporated into the Thai Buddhist moral world. With attitudes shifting from the social disapproval experienced by Mayura, by 2004 portrayals of surrogacy arrangements ­were becoming more frequent and public. For example, the educational book with the bilingual title Yak pen mae khaekhad jai: Mommy’s Story (Threechana and Pimongsing 2004, 203) described a surrogacy arrangement between s­ isters in overwhelmingly positive terms, and noted that it was a good deed for which the surrogate would receive Buddhist merit and good ­things in her pres­ent and f­ uture life u­ nder the logic of karma. The need for legislation in Thailand to regulate assisted reproductive practice was suggested as early as 1987. A seminar of health and ­legal professionals at Chulalongkorn Hospital pointed to the need for the l­egal protection of the rights of ­children born through t­ hese procedures and to prevent commercial surrogacy (Anonymous 1987b). The Thai Medical Council eventually introduced its first professional guidelines in 1997 (ten years a­ fter the first IVF child was born) (Announcements 1/2540) (Medical Council of Thailand, 1997). But public concern over signs of a commercial trade in ova and surrogacy use led to further public debate and calls for regulation. By 2000, ­those gathered for a Thai Medical Council public seminar involving representatives of the Department of Religious Affairs, Law Council, and Nursing Council as well as vari­ous academics discussed the need for legislation to avoid a “chaotic and confused society” as ARTs and surrogacy had caused “social prob­lems” (Anonymous 2000). In response, the Thai Medical Council introduced further medical guidelines in

38

Intern ation a l Surrog ac y a s Disrupti v e Ind ustry

2002 for ARTs, including surrogacy (Announcement 21/2544) (Medical Council of Thailand, 2002). Th ­ ese guidelines limited surrogacy to married c­ ouples, banned commercial transactions, and stated that the surrogate must be a biological relative of the married c­ ouple. However, the guidelines had no legislative force and each clinic and hospital was granted discretion with regard to surrogacy arrangements. Several ­legal concerns arose involving ­children born through ARTs. Dr. Jakkrit Kuanpoj, from the Faculty of Law, Sukhothai Thammathirat Open University, and his team undertook ­legal research on the issue of surrogacy for the Office of the Council of State (Kuanpoj et al. n.d.). His opinion was that, at the time, ­there was no legislation ­under which surrogacy, including commercial surrogacy, was illegal. Although Dr. Kuanpoj and his team stated that ­there was l­ ittle evidence of commercial transactions at the time, they proposed a number of models of regulation that could be ­adopted. One ­factor limiting surrogacy was that parentage laws in Thailand ­were not conducive to surrogacy arrangements. ­Under section 1546 of the Thai Civil and Commercial Code, a w ­ oman who gives birth to a child is regarded as the ­legal m ­ other of that child. When a child is born to an unwed ­woman, she alone is recognized as having the ­legal rights over that child. ­Under the same code, the f­ ather of a child who is not married to the m ­ other at the time of the birth has no parental rights, even if his name is recorded on the birth certificate or he is able to prove his biological parentage. Thus, intending parents effectively had to adopt a child born through surrogacy. This lack of parentage rights caused ­legal difficulties. For example, one case reported in newspapers at the time involved the Thai civil ser­vice parents of a child born through a surrogacy arrangement using their gametes. They asked for the reimbursement of their child’s medical treatment and tuition fees (a right of c­ hildren of Thai civil servants). However, the Council of State ruled that they did not have a right to reimbursement as they ­were not the ­legal parents of the child b­ ecause the wife was never pregnant and did not give birth (Anonymous 2000). By 2004, reports emerged of pro­gress on draft legislation following a seminar on surrogacy law held by the Ministry of Social Development and H ­ uman Security. A series of public hearings regarding the proposed legislation ­were held throughout 2005 around the country and female members of parliament ­were said to be in support of the draft bill (Anonymous 2005). In 2006, it was announced that the draft legislation had been prepared and that it would focus primarily on the child’s interests; then on morality, culture, and values in Thai society; and fi­nally on the needs and rights of biological parents, surrogate ­mothers, agents, and doctors who provide treatment, without impeding any ­future technological advancement (Anonymous 2006). One seminar participant stated, “Legislation ­can’t keep up with ARTs, creating a prob­lem w ­ hether the baby is a ­legal baby and ­will have ­legal rights such as using a surname, right to get inheritance. When par-



The Growth of Disruptive Commercial Surrogacy in Asia 39

ents agree to use ­these technologies, they have to take/accept this child for the rest of their lives without having feelings that this child is not theirs. If they d­ on’t, this may make the child have no faith in life and become the second class citizen in society.” A further example of the nature of the social debate at the time concerning surrogacy can be gleaned from discussions about surrogacy that appeared on Thai social media sites such as www​.w ­ omen​.­sanook​.­com. On July 21, 2006, ­there was sympathetic discussion of a surrogacy case in which a twenty-­eight-­year-­old Thai ­woman was arranging surrogacy with her thirty-­two-­year-­old cousin. The article considered how Thai law recognized only the ­woman who gave birth as the ­legal ­mother and quoted Professor Somboon, a fertility specialist, as stating that “Thai law is still not catching up with the technology.” However, Dr. Sawaeng Boonchalermwipas from Thammasat University Law Faculty suggested t­here w ­ ere concerns that Thai values ­were being undermined: “Being pregnant carries a very high value that creates the bond between a ­mother and a child, [and now] may become only a surrogacy ser­vice. Are we trailing ­behind Western cultures? ­These technologies are changing the value of being born. Thai culture is a delicate culture with ­these issues. I r­ eally want every­one to ask questions and find out the best answers for this.” The reference to trailing ­behind Western cultures highlights an impor­ tant ele­ment of the debate. In my earlier work on debates over ­legal reform of Thailand’s restrictive abortion laws (Whittaker 2001), I noted how reproductivity is intimately linked in the Thai public imagination to the politics of national identity. Thai w ­ omen’s bodies mark the bound­aries of the Thai nation, depicted as ­under threat by corrupt Western values. In both debates, Buddhist ideals of ­women as nurturing ­mothers ­were evoked. During the 1980s abortion debate the specter of what was described as Western “­free sex” without consequences threatened this ideal; in the surrogacy debate pregnancy without consequences and commercialism of motherhood pose an outside threat to Thainess. As I discuss in ­later chapters, the threat posed by Western values was a pivotal discourse in the eventual banning of surrogacy by a military government intent on protecting Thai moral values. When the details of the proposed draft legislation on the use of ARTs ­were released in 2008, public discussion ensued. The proposed surrogacy laws ­were especially scrutinized. A spokeswoman for the ­Women’s Health Advocacy Foundation, Nattaya Boonpakdee, stated that “the aim of the legislation is meant to look ­after surrogate ­mothers and ­children but in fact, not only it fails to do so but also push(es) the burden to the surrogate ­mothers” (Anonymous 2008). The draft Assisted Reproductive Technologies Bill 167/2553 was approved by the Thai Cabinet in May 2010, but then stagnated u­ ntil the Thai military government implemented it in 2015 following a series of public controversies including the Baby Gammy case (see chapter 7).

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Catalyst I: Changing Legislation in India Up ­until 2012, surrogacy in Thailand remained a largely Thai affair, quietly undertaken within the discreet walls of clinics, although t­ here was a small trade for foreign ­couples. At the time of my initial fieldwork in Thai IVF clinics in 2008– 2009, ­there w ­ ere rumors of commercial arrangements taking place, even of Viet­ nam­ese ­women brought over to act as surrogates for Thai c­ ouples (Whittaker 2015), but t­ here w ­ ere no public advertisements of such ser­vices and certainly no acknowl­ edgment by Thai clinics. Indeed, during that period of fieldwork, I received strenuous denials that commercial ova donations or surrogacies w ­ ere taking place from the infertility specialists I was interviewing. The event that triggered the public growth of a commercial industry in Thailand was the introduction of a new medical visa rule in India for c­ ouples commissioning surrogacy. U ­ ntil 2012 in India, ­under the legislation that existed up to that time, commercial surrogacy for foreign and nonresident Indian same-­sex ­couples was readily available, even though same-­sex relationships w ­ ere not l­ egal in India. With the new regulations introduced on July 9, 2012, the Indian Ministry of Home Affairs (file 25022/74/2011-­F-1) announced that a medical visa for surrogacy would be granted only to ­couples who had been married for more than two years and ­were seeking to enter commercial surrogacy arrangements, and only if commercial surrogacy was ­legal in their home country (Ministry of Home Affairs, India 2011). This announcement effectively stopped a large commercial surrogacy trade catering to gay ­couples that had developed in India ­until that time. Although gay ­couples had previously been undertaking commercial arrangements in the United States, their high cost made them unaffordable for most ­couples. The Indian model of mass, affordable surrogacy had made the possibility of forming a f­ amily more achievable for many gay c­ ouples and generated a new demand as the possibilities ­were advertised. With the closure of India, new affordable destinations w ­ ere sought. Nepal was one destination that opened, utilizing Indian surrogates who crossed over the border to undertake their pregnancies and give birth in Nepal— an innovative “hybrid” model of surrogacy that circumvented the Indian bans and requirements for surrogacy visas. The other destination was Thailand, where sophisticated ART clinics, a flourishing preexisting medical travel industry, and a more benign public culture t­ oward homo­sexuality offered market advantages. One of the reasons that a surrogacy industry could develop so quickly in Thailand was the preexistence of a sophisticated medical tourism industry. Following the 1997 Asian financial crisis, Thailand deliberately ­adopted policies to promote itself as a “medical tourism hub” in the Asian region, in turn to leverage its tourism and health care infrastructure (Connell 2011; Whittaker 2008; Wilson 2011). Although data on the numbers of international medical travel patients are notoriously unreliable, a study using hospital rec­ords in five private hospitals found



The Growth of Disruptive Commercial Surrogacy in Asia 41

that a total of 104,830 foreign patients had traveled specifically for treatment in ­those hospitals in 2010, accounting for 324,926 separate visits and generating US$180 million (Noree, Hanefeld, and Smith 2014). A 2011 study of the impacts of the industry on Thailand concluded that the health ser­v ices trade added an estimated 0.4  ­percent to Thailand’s economy ­every year, highlighting the importance of the trade (NaRanong and NaRanong 2011). In Bangkok, a number of private hospitals promoted themselves as “international” hospitals, offering well-­trained medical staff; sophisticated, high-­tech equipment; translators; and luxurious, hotel-­like accommodation. Th ­ ese hospitals and a small number of stand-­alone infertility clinics ­were able to utilize the existing infrastructure to ser­ vice the growing market for assisted reproduction, particularly surrogacy. The period of expansion in medical and reproductive travel coincided with the increased privatization of medical ser­vices in Thailand. Previously, infertility clinics offering assisted reproduction had been predominantly located within public hospitals. In Thailand, the growth of medical tourism and dissatisfaction with wages and conditions within the public system saw mass migrations of medical specialists to the private sector. ­Today, although large public hospitals provide limited assisted reproductive treatments to c­ ouples, even public hospitals run IVF ser­vices as private ser­vices and most fertility specialists own additional private clinics. Assisted reproduction clinics require considerable capital investment in equipment as well as medical staff, fertility specialists, and embryologists, and so with private owner­ship comes the need to earn sufficient income to pay for the capital costs. This partly explains why, with the closure of surrogacy to gay c­ ouples in India in 2012, international surrogacy quickly became an impor­tant source of revenue for many private infertility clinics in Thailand.

Catalyst II: Growth in Demand from Australia Another catalyst for the rapid growth of surrogacy in Thailand was demand from Australians. A retrospective audit of overseas surrogacy agencies carried out in 2011 by the consumer-­run association Surrogacy Australia showed a 277 ­percent increase in the number of infants born to Australians via surrogacy, with numbers rising from 97 in 2009 to 269 in 2011 (Everingham, Stafford-­Bell, and Hammarberg 2014). Social changes in Australia have contributed to the demand for surrogacy, including the rise of an affluent m ­ iddle class and the greater social ac­cep­tance of gay parenting and movement t­ oward recognition of same-­sex relationships. Surrogacy is one of the only means available to male gay c­ ouples to form biologically related families (Dempsey 2013). Prior to 2009, the US states of California and New Jersey ­were the primary destinations for commercial surrogacy for Australian ­couples. India then became popu­lar ­until 2012, a­ fter which Thailand arose as a destination (Everingham, Stafford-­Bell, and Hammarberg 2014). This was driven by a number of ­factors,

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Intern ation a l Surrog ac y a s Disrupti v e Ind ustry

Table 1.2

Legislation relating to surrogacy in all states and territories of Australia

Australia

No Commonwealth legislation

ACT

Parentage Act 2004

NSW

Surrogacy Act 2010 No. 102

Northern Territory

No legislation

Queensland

Surrogacy Act 2010

South Australia

F­ amily Relationships Act 1975, Statutes Amendment (Surrogacy) Act 2009

Tasmania

Surrogacy Act 2012 and Surrogacy Regulations 2013

Victoria

Assisted Reproductive Treatment Act 2008 (Part 4, Surrogacy)

WA

Surrogacy Act 2008, ­Family Court (Surrogacy) Rules 2009, and Surrogacy Regulations 2009

source: VARTA, https://­w ww​.v­ arta​.­org​.­au​/­regulation​/­legislation​-­and​-­guideline​-­overview.

including Australians’ familiarity with the country as a holiday destination, the fact that many Thai doctors ­were trained in Australia, the existence of a number of Australian facilitation companies, and greater awareness among Australian consumers due to the activities of Surrogacy Australia (see chapter  3). Surrogacy Australia provided a means for intending parents to find out how to arrange an overseas surrogacy and to meet and hear from other parents who had successfully done so. However, as an unintended consequence, it supported a new market for overseas surrogacy, and Australia became a major source of clients for the industry in Thailand. The reason that so many Australians felt compelled to travel overseas was in part the difficulty of arranging surrogacy within Australia. Surrogacy in Australia is highly regulated, and the only ­legal forms in Australian states are ­those involving uncompensated or altruistic surrogacy, when the surrogate ­mother receives reimbursement only for her out-­of-­pocket expenses (such as medical costs) associated with pregnancy and birth. Laws pertaining to surrogacy in Australia vary from state to state and pres­ent a confusing maze for c­ ouples seeking to arrange a surrogacy (see ­table 1.2). ­Under t­ hese laws, altruistic surrogacy arrangements are not enforceable—­a surrogate m ­ other cannot be compelled to hand over a child ­after birth to the intending parents. In addition, the items that may be reimbursed are restricted and vary from state to state. States also vary in definitions of who is eligible to act as a surrogate, the level of counseling required, the ­legal costs, and ­whether a regulatory authority is involved. Many ­couples, especially same-­sex ­couples, find it difficult and time-­consuming to find someone willing to be a sur-



The Growth of Disruptive Commercial Surrogacy in Asia 43

rogate. In all states, it is illegal to advertise for a surrogate or for a surrogate to advertise her ser­vices. In response to the growth of the Thai market from 2011–2012, facilitation companies relocated operations to offer “gay-­friendly” surrogacy options in Thailand. Surrogacy for foreigners was openly advertised on websites, along with costs, in clear contravention of Thai Medical Council guidelines. An internet search in 2012 ­under the key terms “Thailand surrogacy” revealed a range of companies openly advertising, including Medicare Thailand (2012), based in Hong Kong; California-­based Thailand Surrogacy (2012) and its twin Surrogacy Thailand (2012); and New Life Thailand (2012), which is part of a global network started in Ukraine with clinics in Georgia, Ukraine, Armenia, Israel, Estonia, and India. A number of companies had Australian connections, such as ThailandFertility (2012) (started by an Australian ­woman), Global Health Travel (2012), and the Thai-­Australian com­pany IVF Miracle Baby (2012) (see chapter 4 for more information on facilitation companies).

The Disruptive Model in Thailand Although they emphasized their differences from Indian surrogacy, ­these Thai sites also revealed how Thai surrogacy epitomized the segmentation of the value chain characteristic of the “disruptive” model of surrogacy. For example, in 2012, the New Life Thailand site described how s­ imple it was to arrange an ova donor and surrogacy over the internet: “Contact us by email or phone and let us know what you require: For egg donor IVF please describe any details regarding your infertility history (if you have one), age/s and time frame. For surrogacy we require your nationality/s to ensure we can assist you. A password to the donor database ­will be sent, if required, for you to review the photos of donors available. Full price lists are also sent with a breakdown of costs payable at each step of the pro­cess.” The com­pany offered a range of “package deals,” including a “total surrogacy package” deal for US$26,500, a “surrogacy with egg donor package” for US$31,600, the “two surrogate egg donor program for one confirmed pregnancy” for US$36,300, or two confirmed pregnancies for US$53,500. A range of “incidental costs” ­were included that clearly priced body parts and potential physical damage to the donors or surrogates. For example, a twin pregnancy cost an additional US$1,000 paid to the surrogate m ­ other, an embryo reduction cost an additional US$700, the loss of a uterus required an additional compensation payment to the surrogate ­mother of US$2,000, while an ec­topic pregnancy cost an extra US$2,000 (covering US$1,500 for surgery and US$500 for compensation to the surrogate ­mother) (New Life Thailand 2012). At times, the New Life Thailand website described surrogates in terms that framed them as mere laboratory materials, with more than one surrogate “prepared” for a cycle as a backup mea­sure to ensure that the transfer could take place.

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Such redundancy removed some of the uncertainty associated with reproductive cycles, making the pro­cess more efficient for the intending parents, at the cost of unnecessarily treating an other­wise healthy w ­ oman. This was epitomized in the quote below: All of our surrogates meet our screening requirements and are approved by the IVF team before being offered to Intending Parents. Preparation of the surrogates for embryo transfer requires that they follow a medi­cation protocol which prepares their endometrial lining to receive the embryos. The required mea­sure­ment/ thickness of her lining is essential to the success of the cycle. Selecting a specific surrogate allows for the possibility of a cancelled cycle if her lining is not optimal by the day of transfer. To avoid a cancelled cycle, we prepare more surrogates than required for each cycle and the IVF specialist w ­ ill select which surrogate is ideal to receive your embryos. You w ­ ill receive all details on your surrogate as soon as transfer is complete.

In a similar vein, Surrogacy Thailand (2012) offered a “complete ser­v ice” through which c­ ouples could arrange their surrogacy from their home country. If clients used an egg donor, sperm samples could be frozen and flown in so that intending parents would need to travel to Thailand only once the child or ­children ­were born. While the com­pany arranged the l­ egal requirements, c­ ouples ­were invited to go on holiday at company-­owned villas on the island of Koh Samui “to bond as a f­ amily.” The outsourcing of reproductive care even extended to a nanny ser­vice that could be arranged if the c­ ouple w ­ ere not able to stay for the full period of time required for the ­legal work to be completed: Surrogacy Thailand recommends that you attend the birth and while this means that you ­will need to be in Thailand for up to 4 days before the due date, it is usually treated as a holiday by many of our intending parents. A ­ fter your baby is born, the baby ­will leave the hospital with you. The parental order pro­cess can take up to seven weeks ­after the birth and so we would recommend that you travel with your baby to another location in Thailand whilst the ­lawyers work on your case. We provide you with a full ser­v ice to register the birth and part of this pro­cess ­will include one of our team visiting the relevant government department with you and the surrogate so she can give her rights up to the child officially, this ser­vice is provided ­free of charge and comes as part of our surrogacy package. This is an impor­tant time which allows you to bond as parents with your baby, again this ser­vice makes Surrogacy Thailand a unique provider in the field of surrogacy not only in Thailand but also in the Far East. Surrogacy Thailand can organise private villas in Koh Samui, which is a 50-­minute flight from Bangkok. Staying t­ here ­will give you the opportunity to bond as a f­ amily in a homely environment. Alternatively, if you cannot be in Thailand for the w ­ hole



The Growth of Disruptive Commercial Surrogacy in Asia 45

period we can arrange for a certified nanny to look ­after your baby ­until you arrive. Our ser­vice is designed to offer you the best pos­si­ble start to your life as a f­ amily.

The Marketing of Surrogacy in Thailand The model of surrogacy that operated in Thailand differed from that in India. Early on, in response to growing concerns from intending parents about conditions for surrogates in India and Nepal, facilitation companies emphasized the more “ethical” nature of surrogacy in Thailand. Gone w ­ ere the surrogacy dormitories, complete anonymity, and lack of contact between surrogates and intending parents. Thai facilitation companies and clinics ­were more open to accommodating intending parents’ wishes, surrogates tended to live in single accommodation or their own homes close to Bangkok, and luxury hospitals receiving international patients ­were more open to catering to the desires of parents for early contact with babies and provided in­de­pen­dent accounts, resulting in greater transparency in accounting for all the hospital costs. This more “ethical” surrogacy was emphasized in the advertising of facilitation agencies. In 2012, for example, Thailand Surrogacy (Frattaroli 2011), a California-­based com­pany with operations in a number of clinics in Thailand, which it claimed was “the best place to do surrogacy,” was advertising “ethical surrogacy ser­vices.” It described its ser­vices in direct competition to ­those offered in India: Both countries can offer ­couples savings of up to 60 per cent. However, ­there are many reasons why you should consider surrogacy or other fertility treatment in Thailand. When our patients have tried, and failed at their attempts to have a baby elsewhere, when they come to us in Thailand, they get a feeling as though it just feels right. Our surrogacy programs in Thailand are very ethical and our surrogate ­mothers are well cared for. They continue to live with their families during their pregnancy. Thailand Surrogacy has always believed that surrogate m ­ others should continue to live with their families during the 9 months’ gestation period, b­ ecause their families are their foundations. It is where they get their emotional and physical support. We also have a dedicated staff of patient coordinators that picks up our surrogate m ­ others from their homes and takes them to each doctor visit. This helps them to reduce their stress levels. One of the greatest advantages of coming to Thailand for surrogacy is it is a g­ reat place to enjoy yourself ­after you have completed the emotional roller coaster ­ride that comes with infertility treatment. You can travel to one of Thailand’s exotic beaches and just kick back and relax knowing that you are ­going to have a baby in such a beautiful country.

The site went on to describe the ethics committees located at clinics that oversaw surrogacy arrangements, and the com­pany’s good infrastructure, highly skilled

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Intern ation a l Surrog ac y a s Disrupti v e Ind ustry

doctors, Joint Commission International ( JCI)–­accredited medical facilities, affordable prices, and “spa”-­like hospitals. It also presented a cloying ste­reo­type of Thai ­people and their “beautiful culture”: Known as the “Land of Smiles,” the Thai ­people are among the warmest, friendliest, and good natured ­people in the world. Known best for their hospitality and treatment of international visitors, it is no surprise that the “Kingdom of Siam” is the only country in Southeast Asia that has never been colonized. The Thai culture is beautiful too. As 95 per cent of all Thais are devout Buddhists, the gentle nature they have is unlike any other. A short drive around the city, and one can see the beautiful golden Buddhist t­ emples and see pictures of their beloved King and Queen. The mixture of t­ hese two foundations have given the Thai p­ eople “that something dif­fer­ent” not found anywhere in the world. It is no won­der why Thailand receives more tourists per year than any country in Asia. Once is never enough. When you travel to Thailand, you ­w ill undoubtedly return over and over again ­because of the compelling Thai ­people and their beautiful culture.

Blogs on the Thailand Surrogacy site offered cultural tips for traveling in Thailand, observations on Buddhist ritual and “the gentle” Thai ­people, images of Thailand’s most beautiful beaches, as well as a range of baby and child-­rearing advice. Each blog ended with the epithet, “Thailand Surrogacy wants to help you realize your dreams. Let us help bring your baby home to you.” In emphasizing its “ethical surrogacy,” the site deliberately contrasted Thai surrogacy with the industry in India. It claimed that Thai surrogacy was as affordable as the cost of undertaking surrogacy in India, and emphasized the “smiles,” “warmth,” “gentle nature,” and “Buddhist devotion” of Thais as a point of difference, far removed from any discussion of costs. A number of authors have described the racialized hierarchies that structure surrogacy relationships. Damien Riggs and Clemence Due (2010) have written of the evocation of race privilege implicit and explicit when white gay men make use of surrogacy ser­vices in India, such that “a desire for ge­ne­tic reproduction . . . ​ (and the potentially proprietal claims that this evokes) is privileged over and above the rights or needs of non-­white ­women.” Likewise, within the US surrogacy trade, African American scholar Dorothy Roberts (1995) suggests that African American ­women are often implicitly viewed as ideal surrogates by white commissioning parents due to the fact that they are less likely to be successful litigants or to be able to afford to litigate if they wish to amend or challenge the surrogacy contract. This must be understood within a historical context in which black w ­ omen’s bodies have long been treated as objects and tools for the use of white men (Roberts 1995). Usha Smerdon (2008) also argues that, for white ­people, it may be easier to objectify the womb of a black ­woman as simply a tool to be used. Likewise, cross-­border surrogacy in Thailand drew upon a historical context as an R&R



The Growth of Disruptive Commercial Surrogacy in Asia 47

site during the Vietnam War and the subsequent growth of a large sex tourism industry, in which the submissive Asian ­woman’s body has been promoted as willing and available to ser­vice the needs of foreigners (as well as Thai men). Implicit presumptions of race privilege are woven through exchanges between farang (white/foreign) and Thai ­people, often glossed within the discourse of “Asian ser­ vice values.” In this way, class and race, as well as the lax regulation of surrogacy by state institutions and rising demand, helped produce Thai surrogacy as a strategy for economic advancement.

Conclusion No official statistics exist on the numbers of international surrogacy cases undertaken in Thailand, but by 2014 the industry was booming across Asia. For example, at a 2014 Fertility Society conference in Australia, one prominent Thai doctor enthusiastically described how he had started his first private clinic in 2007 and that by 2010 the com­pany had expanded to two more clinics in Bangkok and on the resort island of Phuket. He estimated that he was seeing about a hundred international patients each month for all forms of assisted reproduction, and that 10 to 15 ­percent of his clientele at that time w ­ ere international surrogacy cases. India continued to accept foreign heterosexual ­couples, while Nepal catered to gay c­ ouples. During this time, the surrogacy trade also began in other destinations such as Mexico and South Africa. And the established commercial surrogacy trade continued in the few US states where it was ­legal, appealing to t­ hose prepared to pay for it. The disruptive model of surrogacy that flourished in Asia created new demands and markets for lower-­cost surrogacy among groups who had not been able to afford the more expensive options in the United States. This was driven by changes in Asia—in par­tic­u­lar, the growth of privatized medicine and medical tourism— as well as an entrepreneurial drive and laissez-­faire regulatory system. But it was also in part attributable to and sustained by the domestic policies of source countries, many of which deemed surrogacy unethical or restricted access to domestic surrogacy. Asian surrogacy was particularly appealing to Australians for whom it was close and accessible, lower in cost, and relatively easy to access compared to the complexities involved in local altruistic surrogacy arrangements. To understand how the surrogacy assemblage was configured in Thailand and Southeast Asia and the experience of ­those enmeshed within it, in the chapters that follow I explore the experience of the vari­ous actors in the industry: the intending parents, facilitators, and surrogates. I also explore the crucial role of technology and the cyber community in sustaining and disseminating surrogacy as a ­viable option for forming families. By the end of 2015, India, Thailand, and Nepal ­were all closed to foreigners for surrogacy. In l­ater chapters I detail the controversies that led to ­these closures and the movement of the industry to new destinations and markets.

2 • MERIT AND MONEY The Moral Economy of Surrogacy

I waited downstairs for a while as I had come early to the hospital. The taxi had dropped me off in the Arab patient section, so I was greeted by Arabic-­speaking staff and directed around the front. This hospital is set in spacious garden grounds and very quiet, without shops and ser­vices within walking distance, but with a few restaurant outlets inside the hospital, such as Starbucks and S&P (a Thai restaurant and bakery) to feed visitors. ­After waiting for some time in the lobby where I expected to meet the facilitator and some intended parents for interviews, I left a message on the facilitator’s phone and was directed to a private patients’ room on the twelfth floor. Inside, lying in bed, was Sasithorn, a Thai surrogate ­mother who had given birth to twin girls by caesarean section two days before. The room was a very comfortable private room in a ward of 12 separate rooms, around the size of a large ­hotel room, light and pleasant with a couch and two additional chairs, a tele­vi­sion, and a view of the gardens and separate bathroom. But also pres­ent in the room was her ­sister, the facilitator Pui and two of Pui’s ­children, so the room was somewhat crowded. Pui suggested I should interview Sasithorn but I said that, given that she was on painkillers and had just had a caesarean, I ­didn’t think it appropriate. Further, I ­didn’t think it was appropriate in front of the facilitator to be asking her much about her feelings and money at what was a vulnerable time for her, when she would soon give up the babies. Sasithorn said she had been very sore yesterday but was feeling better ­today, but she looked drained and a bit yellow. She sat up in bed and was absently watching a soap opera on TV. I helped her get out of bed to go to the bathroom; she clearly was still in some pain and winced as she got out. Rather than conduct a formal interview, we simply chatted a while informally while waiting for the intended parents to arrive. Pui’s ­children ran around the room, noisy and excited. Pui joked and chatted to Sasithorn, took calls on her phone and admonished her c­ hildren. Sasithorn is thirty-­five years old, from the nearby province of Nonthaburi, and this was her second surrogacy. She has a child of her own, a ten-­year-­old boy who lives in Nonthaburi and does not know about his m ­ other’s surrogate pregnancies as she has lived in Bangkok during the surrogacies. With her first surrogacy she gave birth to a singleton, this time twins. I asked about the 48



Merit and Money 49

pregnancy and she said it has been fine, she has had no health prob­lems through the pregnancy. The twins ­were delivered at thirty-­seven weeks’ gestation. Both weighed over 2 kilograms, one 500 grams smaller than the other. Sasithorn was expressing milk for the babies and thought she would stay in hospital for four nights in total. I asked if she would stay by the fire (yuufai) ­after this birth, a common postpartum practice for w ­ omen in Thailand. She said she was told not to by her doctor as it might split open the wound a­ fter her caesarean section, but once she returns home ­after about a month, she would do a traditional sauna treatment and drink some herbal mixtures to help heat up her body again. I asked w ­ hether she w ­ ill have contact with the babies afterward; she said it is up to the parents and she d­ oesn’t mind w ­ hether she does or not. She has no contact with the ­family of the first baby she birthed as a surrogate, and prefers not to, although she said the facilitator does receive occasional pictures of the child. Then the Chinese f­ athers arrived and inquired briefly about Sasithorn’s health in stammering En­glish. They brought gifts of food for her and some ginger tea. The newborn twins ­were wheeled in by a nurse from the nursery room. They lay asleep in bassinets wrapped in pink blankets. The f­ athers’ ­faces lit up and all their attention was focused on the babies. They fumbled as they held them; quite besotted, they barely took their eyes off them. They simply sat holding them, admiring them. This was only the second time they had held the babies. Sasithorn watched the f­ athers, occasionally smiling at them holding the twins, but she did not ask to hold the babies nor did she comment; at times she turned to watch the TV screen. The babies ­were red and very small, asleep except for occasional newborn reflex jerks, yawns, and flexing. Suddenly one baby cried, with much exclamation from the ­fathers and a slight look of anxiety from Sasithorn. But throughout this time, Sasithorn seemed in relative equanimity, controlling her feelings—­whatever they ­were. The babies ­were eventually put back in their bassinets and a nurse came to wheel them back to the nursery. Eventually we all said our farewells to Pui, her delightful ­children, and Sasithorn and her s­ ister. I arranged to meet the ­fathers downstairs for an interview. Sasithorn seemed more relaxed now the twins ­were removed from the room. I returned ­later to give her a gift to thank her and wish her well; she was watching tele­vi­sion with her ­sister and eating lunch. (field notes, June 2016)

In crossing borders, transnational surrogacy entails crossing multiple social bound­aries, as w ­ omen from lower and middle-­income countries, of dif­fer­ ent ethnicity, socioeconomic status, language, and religion, act as surrogates for

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Intern ation a l Surrog ac y a s Disrupti v e Ind ustry

p­ eople from other places. Such exchanges involve complex differential power relations and exemplify the stratification of reproduction. But the crossings that occur are also between differing meanings and understandings of reproduction, money, and kinship. In this chapter, I trace the specific understandings and values that framed surrogacy in Thailand and enabled and facilitated the growth of the commercial surrogacy trade t­ here. Writing on the failure of many analyses of sex trafficking to take into account the social and moral context of the transnationalization of sex work, ethicist Fiona Robinson (2011, 76) notes that it is the central work of a feminist analy­sis to analyze how moral views are “socially sited,” the discursive spaces dif­fer­ent moral views create, and the positions of agency and distributions of responsibility they produce. Critiquing the universalizing and abstract tendencies of bioethics, Alison Bailey (2011) warns against writing Occidentalist accounts of ­women’s experiences of surrogacy; she suggests that Western feminists often engage in forms of discursive colonialism when we proj­ect Western moral values onto the lives of ­women in other settings. She argues for a reproductive justice approach that questions the specific social, economic, and po­liti­cal structural conditions in which such surrogacy operates. Bailey recognizes that normative approaches to ethics have been unable to engage the lifeworlds of diversely constituted and situated social groups, particularly t­ hose that are marginalized. Situated ethics emphasize the primacy of context and situation in thinking through ethical prob­lems—­entailing an examination of their culturally specific meanings as part of lived, contested, and negotiated relations. Aihwa Ong (2010, 13) proposes an anthropology of “situated ethics” that considers the “emergent assemblage of diverse logics as the space and tension within which moral reasoning takes place, and is woven into overlapping contexts of technology and sociality.” She suggests that below “schematized descriptions of expropriation and alienation,” it is necessary to locate ethical practices, tracking the intersections between “competing logics of politics, technology and culture” (13). We need specific studies of the dif­f­ er­ent contexts in which international surrogacy occurs that address both the structural conditions and local moral economies that sustain this trade. The international surrogacy trade draws upon local moral economies of gender, both in the recruitment and mobilization of w ­ omen’s bodies as surrogates and in the familial discourses mobilized to recruit intended parents. In this chapter, I explore how local Thai Buddhist ideals about gender are deployed as a means of extracting value from bodies by making use of local moral economies. The relationships between moral values and economic structures have been recognized since Weber’s work on the Protestant ethic and early industrialization. The term “moral economies” is derived from the work of historian E. P. Thompson ([1971] 1991) and has been used in anthropology to describe local values in relation to economic and production relations. The concept has also been applied to describe peasant re­sis­tance to the social changes wrought by global pro­cesses (see Scott [1976] 2008; Zigon 2008). In this chapter, I use this term to describe the position-



Merit and Money 51

ing of values within broader economic relations and how ­these are mobilized within economic transactions and gain value over time. Moral values in Thai society became enmeshed in an industry in which they contributed to generating exchange value. On the supply side, ­women’s roles as gestators and ­bearers of ­children valorized the role of surrogates; on the demand side, clinics and agencies deployed discourses of f­ amily values, hope, and intended parents’ reproductive rights to validate the desires of intended parents. In chapter 3, I explore intended parents’ narratives and ideologies of ­family and hope. In this chapter, I discuss how the surrogacy trade in Thailand proliferated, notwithstanding the tension between ethical values—­Thai cultural notions of surrogacy as a form of Buddhist merit making and an opportunity to provide for one’s own ­children, on the one hand, and a commercial transaction, on the other. The practice of commercial transnational surrogacy in Thailand flourished within the intersections of ­these logics, despite official sanctions against it.

The Commodification of Intimacy: An Entrepreneurial Body A feature of global capitalism is the increased commodification of intimacy in social life (Hochschild 2000, 2003). Surrogacy provides a further example of how the advent of new technologies has transformed and redefined vari­ous forms of intimate l­ abor in care, domestic work, and reproduction. Boris and Parrena’s (2010, 9) notion of “intimate industry” specifically describes how certain forms of work are embedded within par­tic­ul­ ar gendered ideologies. Intimate ­labor is “work that involves embodied and affective interactions in the ser­vice of social reproduction” (9) such as within the transnational marriage market, sex work, and domestic ­labor. It comprises a range of activities, entailing bodily or emotional closeness or familiarity, or close observation and knowledge of personal private information, including forms of ser­vice and caring ­labor. It is productive ­labor involving the exchange of money and is subject to both market forces and ideological views on gender, ethnicity, race, and sexuality as well as other structural constraints. Assisted reproduction can be viewed as an intimate industry, involving the exchange of and intervention into private information and intimate bodily pro­cesses, and affective ­labor by patients and clinical staff; it is a highly profitable business, but one that is strongly gendered and structured by economic inequalities. As with other forms of intimate ­labor, in commercial surrogacy tension exists between notions of care and the rhe­toric of helping o­ thers, on the one hand, and commodification, on the other. Melinda Cooper and Catherine Waldby (2014) suggest that transnational surrogacy be considered as a special category of “clinical l­abor” that trades in biovalue: “the yield of vitality produced by the biotechnological reformulation of living pro­cesses” (Waldby 2002, 310). The growth of reproductive travel has

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intensified the demand for a “bioavailable” population of ­women as sources of surrogacy and ova (Cohen 2005, 83). Cooper and Waldby argue that surrogacy assumes a specific form of rentier cap­it­ al­ist relations in which the biological potentials of the body are traded. But surrogacy is also an intimate industry that trades upon affective values or­ga­nized within specific gender ideologies—­what Arlie Hochschild (2000) terms “emotional surplus value.” As is the case in all intimate industries, ­those participating in commercial surrogacy are subject to vari­ous forms of exploitation based on their gender, race, class (caste), and wealth. Within the globalized economy, international surrogacy, with its fragmentation of reproductive pro­cesses and roles and its portability, links into new modes of disruptive global production, as discussed in chapter 1. In this chapter, I outline the affective ideological underpinning that facilitates the exchange: how moral values are transformed into economic value.

Surrogacy as Intimate ­L abor Surrogacy and ova donation carry special status as forms of ­labor that intersect intimacy and commerce and permeate the porous bound­aries between paid and unpaid work by w ­ omen, and between production and social reproduction. As Boris and Parrenas (2010) note, vari­ous forms of intimate ­labor remain a primary source of livelihood for ­women and are increasingly commodified in late capitalism. Viewing surrogacy as a form of intimate and clinical ­labor allows for a more nuanced approach that recognizes the significance of the social, cultural, economic, and po­liti­cal structures that shape it. The advent of new technologies has transformed and redefined vari­ous forms of intimate ­labor in care, domestic work, and reproduction (Boris and Parrenas 2010). The combination of the expansion of ARTs and the neoliberal privatization of health care has encouraged the international market for commercial surrogacy, which maintains and intensifies vari­ous inequalities. For example, w ­ hether they are “university-­educated,” Caucasian ova donors from the United States, uneducated, subaltern surrogates from India, or the young, single Thai m ­ others described in this chapter, an international hierarchy exists among surrogates that determines their value and the compensation for their work. As in other forms of l­ abor, the degree of exploitation involved differs depending upon a number of ­factors, including the surrogate’s socioeconomic background, level of education, race, and level of social disadvantage; the economic, sociocultural, and geo­graph­ic­ al distance between the surrogate and intended parents; the level of compensation involved; the quality of care a surrogate or ova donor receives; and the protections of the rights, freedoms, and dignity of both the surrogate and the child produced. As this chapter underscores, the experience of direct and indirect exploitation involved in international commercial surrogacy may range from relatively benign insensitivities to clear infringements of ­human rights by criminal networks.



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Embodied Capitalism in Thailand Capitalism in Thailand intensified, restructured, and transformed gender subordination. Throughout the 1990s, the development of the Thai economy was based upon the subordination of w ­ omen and the exploitation of a cheap, young female workforce in the export-­oriented industries such as textiles, garments, footwear, and electronics, where 80 ­percent of the workforce was female (Bell 1992, 69). Likewise, the tourism industry and its associated sex industry ­were largely founded upon the bodies and ser­vice of ­women. The development of the surrogacy industry in Thailand drew upon the mobilization of young w ­ omen’s bodies as bioavailable sources of intimate ­labor as surrogates or donors. Although t­ here is no evidence to suggest t­ here are direct connections between the Thai sex industry and surrogacy, both served to mobilize young ­women’s bodies into a regime of cap­i­ tal­ist accumulation and commercialization.1 Likewise, gendered ­labor migration in the domestic ser­vice industries and marriage migration involved young ­women’s intimate ­labors and ­were impor­tant sources of remittances to the Thai economy (Huang, Thang, and ­Toyota 2012; Yeates 2012). Accounts suggest ­these vari­ous industries shared certain characteristics. They ­were largely ser­v iced by ­women from the poorer regions of Thailand, the north and northeast, with certain districts becoming known as having networks of ­women working as surrogates. Similar to t­hese other industries, recruitment to surrogacy depended largely upon word of mouth through social networks. Unlike ­these other industries, surrogacy work favored ­women who already had ­children, providing a means of economic advancement no longer open through other means. A w ­ oman’s reproductive status as having already successfully given birth, a disadvantage in most other intimate industries, was a positive asset for surrogacy. As Ara Wilson (2011, 128) has noted, the advent of the medical tourism industry in the late 1990s in Thailand positioned it as the savior for an ailing economy. She suggests medical tourism drew upon the antecedent surgical expertise developed through the Vietnam War and a ser­v ices industry that had developed within the tourist sector and Thailand’s history as an R&R destination. It animated demand for a range of bodily care and associated technologies, from plastic surgery to rehabilitative care, and mobilized a workforce (again, a largely female nursing workforce) to ser­vice the needs of mobile global consumers. The growth of reproductive travel has intensified this need. A new market emerged for the “bioavailable” bodies of Thai w ­ omen to ser­vice the demand for surrogates and ova providers. This involved the displacement of and trade in both fertility and emotional surplus value. In comparison with the opportunities available to young, unskilled Thai w ­ omen in the local ­labor market or in the intimate trade in ­women’s bodies within the Thai sex industry, the marriage migration market, and the domestic worker market, surrogacy and ova donation presented as lucrative options. In a society where

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the minimum daily wage in Bangkok is 300 baht (US$10), “compensation” for surrogacy at around 300,000 baht (US$10,000) represented attractive remuneration. It also represented a means of making money that potentially allowed w ­ omen the opportunity to continue to live with and support their own c­ hildren if they wished and did not require them to work long hours in dangerous or demeaning ­labor. Although many ­women kept their involvement in surrogacy secretive, within Thai society a pregnant ­woman receives social re­spect and care, something few other employment options offer.

Agency and the Local Ethics of Surrogacy Across dif­fer­ent cultures, t­ here may be very dif­fer­ent moral values framing the role of surrogates and the relationship between the surrogate and intended parents. Work by other anthropologists has described the differing ideological contexts of surrogacy. Heléna Ragoné’s (1994) study of twenty-­eight surrogates in six agencies in the United States found that the meta­phor of gift giving predominates within surrogates’ narratives. A desire to gift “the ultimate gift of love” highlights the altruism involved in surrogacy and allows the surrogate to deny that receiving remuneration is her primary motivation. Such language frames her actions as morally good, within a culture that usually situates commercial interests in opposition to childbearing and motherhood. By emphasizing the gift involved, such narratives ­counter accusations that commercial surrogacy attaches a price to ­children. Elly Teman’s (2010) work on surrogacy in Israel suggests that while acknowledging their economic motivations, ­women involved in surrogacy also use narratives such as “gift giving” and “sisterhood” within a generalized pronatalist discourse that sees surrogacy as giving the gift of motherhood to another ­woman. She writes of the “power of the surrogate–­intended ­mother intimacy to shape the contractual relationship into a gift relationship” (209). In this discourse, the surrogate is positioned within a gifting resource economy (Kroløkke 2018) as an altruistic philanthropist who selflessly donates her body for the benefit of ­others. This contrasts with the definition of one’s reproductive potential as an available resource for other regimes of productive value within a “neoliberal and entrepreneurial reproductive body.” Yet, as research in Asian settings reveals, in many cultures such discourses need not be oppositional but may form part of the same moral economy. Amrita Pande’s (2011) ethnography of Indian surrogates gives an account of the ideological and discursive socialization of surrogates in that country. She argues that the “perfect surrogate—­cheap, docile, selfless and nurturing” is produced through discursive practices that position and regulate ­women as well as through disciplining via physical enclosures such as surrogacy hostels. This pro­ cess produces a perfect mother-­worker—­si­mul­ta­neously a virtuous m ­ other and good worker. Pande (2011) reports that surrogacy was promoted by clinics as



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“God’s gift to them [surrogates],” offering a precious opportunity for financial gain to poverty-­stricken w ­ omen who ­were then able to support their families. Rather than describe surrogacy as “dirty” work or ­labor (Pande 2010b) associated with the polluting reproductive body, some of Pande’s in­for­mants framed it through the Hindu values of “tapasya, the practice of physical and spiritual austerity and discipline to achieve a par­tic­ul­ar aim” (2011, 621). Th ­ ere was also an expectation among surrogates that they would forge ongoing ties of reciprocity and kinship with intended parents through their surrogacy, despite the rules of clinics often dictating an abrupt termination of their relationship once birth had taken place. Pande notes how this assumed sisterly connection between surrogates and the intended parents led surrogates to downplay the contractual aspect of the relationship and their role as wage-­earning workers, to reinforce an image of themselves as dutiful m ­ others. She reports that intended parents also viewed the relationship in terms dif­fer­ent from a mere economic exchange, framing their choice of India as a form of development aid, or a “mission” allowing them to transform the life of an impoverished f­amily in India. Likewise, Vora (2010) found that Indian surrogates in her study used religious language to express their feeling that they w ­ ere d­ oing a divine act in giving a child to an infertile ­couple. She writes, “The turn to the divine within t­ hese narratives can offer an alternative explanation of the meaning of surrogacy in a frame that is not limited to the medical discourse of the body and bioge­ne­tic parenthood. . . . ​For the reader and scholar who does not originate from within the communities where the ­women working as surrogates reside, this mode of understanding and relating surrogacy could suggest a way to approach the significance of this act in terms beyond ­those of ­labor and economics.” Although I cannot claim to have a representative sample, the few Thai and Laotian surrogates I met during my research tended to come from poorer backgrounds, farming communities, or the poorer northern or northeastern regions of Thailand, and made livelihoods through petty trading, selling food, or laboring. In rural areas, some villages are reported to have networks of w ­ omen who have acted as surrogates, using the money to build h­ ouses and buy consumer goods (Fuller 2014). For example, it was reported in the press ( Jikkham 2014) that within impoverished Pak Chong district, Petchabun province, to the north of Bangkok, twenty-­five w ­ omen from four villages had acted as surrogates. One ­woman whose niece was a surrogate stated that “the ­family does not want to get rich from surrogacy. They only want enough money to pay their debts and repair what they called ‘home’ and to make merit by helping o­ thers” ( Jikkham 2014). Surrogates ­were usually separated or divorced from their husband or had a faen, a de facto partner who might be recognized socially as their partner by their kin and village (in some cases having gone through a village ceremony), but was not legally registered as such. This is a common practice in Thailand and enables ­women to be legally classified as “single” and hence

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available to work as surrogates. All the surrogates I spoke to had given birth previously. Thai surrogates subscribe to a discourse that frames their role as allowing them to help ­others, gain Buddhist merit, and in turn provide for their families. Among the ­women I met, surrogacy was seen as a means to make a substantial sum of money honorably. Sasithorn, whom I introduced at the beginning of this chapter, said she undertook surrogacy to help pay for her son’s education, and that her first surrogacy helped pay for a ­house. She was content with being a surrogate and knew it was “a good deed that w ­ ill give bun (Buddhist merit) and also helps the ­couple.” Aelan was a Laotian surrogate who, at the time of the interview, was five months pregnant for an Australian ­couple from Melbourne (also see chapter 8). She was twenty-­five years old and the m ­ other of a four-­year-­old son who lived in Vientiane, Laos, with his grandparents. She came to Thailand as a mi­grant worker at the age of twelve and worked in a restaurant in Surat u­ ntil she was sixteen, when she moved to Bangkok. She was from a f­ amily of seven c­ hildren, the youn­gest of whom was ten years old. Four of her siblings w ­ ere also working in Thailand at the time. She was “happy to undertake surrogacy for the (intended) parents, happy to be able to help them.” With the money earned from the surrogacy she said she would improve her parents’ home in Vientiane. They ­were rice farmers, and her f­ ather also worked as a laborer. She believed that the money she was ­going to earn would be enough to pay for a modest home in Laos, although she joked that it would not be enough to build a home in Thailand. In this way, she would help her younger ­brothers and s­ isters as well. She was not sure exactly how much she was to be paid for the surrogacy, although she had been paid some money and spent it already during the pregnancy. She expected that the total amount would be approximately 200,000 Thai baht (US$5,788), which was “a lot of money in Laos.” ­These w ­ omen approached their involvement in surrogacy with clear-­eyed pragmatism and the conviction that, in undertaking surrogacy, they w ­ ere both helping ­others and improving their own financial situations. Within a lagging Thai economy, they had made the decision to pursue one of the few opportunities to make a substantial sum of money. Compared to working on farms, migrating to undertake the tedious and sometimes dangerous work on construction sites or in factories, or working in ser­vice jobs for below minimum wage, surrogacy presented as a reasonable option. As Sharmila Rudrappa (2015) has noted in relation to Indian surrogates, their decisions make sense given their local social and economic context and the low wages they receive for other forms of l­abor, such as garment and factory work. ­These firsthand accounts are confirmed by a study of surrogates conducted prior to the 2015 ban in Thailand. Elina Nilsson (2015) conducted research with eleven Thai surrogates from a single agency. They w ­ ere all single m ­ others undertaking surrogacy to care for their existing ­children, and all acknowledged the finan-



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cial motivation for their decision to become a surrogate. Nilsson found that ­these surrogates spoke of their need to support their families, build homes for their parents, support their siblings through education, and have the opportunity to make merit by helping ­others. One ­woman also spoke of surrogacy as a means to make merit to counterbalance the Buddhist demerit or bap she had attained from a previous abortion. Nilsson writes that surrogates are “thus fulfilling the role of the nurturing ­mother in a double sense and in this way surrogacy becomes a means to make money and merit at the same time while living up to local moral values of what constitutes a good ­mother and w ­ oman” (38). Apart from individual interviews, accounts from websites provide an opportunity to examine the public discourses in the pre­sen­ta­tion and marketing of Thai surrogates. The surrogatefinder​.­com site describes itself as a “matchmaking membership site” that links potential surrogates and egg and sperm donors from around the world with intending parents, but it is not clear from where the site originates. Fully paid members (€99) have access to the full contact details of ­those listed on the site. The site purports to contain genuine written accounts from ­women describing their reasons for wanting to be a surrogate. Yet it must be assumed that such accounts have been written for public consumption, and t­ here is no way to verify their origins. Like similar marketing elsewhere, ­these accounts adopt certain tropes to appeal to a foreign audience. However, ­these caveats aside, what makes them worthy of analy­sis is that, regardless of their authorship, they characterize the motivations of Thai surrogates in ways that resonate with Thai cultural values. Although the website carries a disclaimer stating that surrogacy on the site is not commercial but altruistic, most of the Thai ­women who appear on the site are very clear in expressing their interest in financial compensation. The following entry on surrogatefinder​.­com from Sukanya of Chiang Mai— or “Katie,” as she calls herself in English—­includes details of her racial background, age, health, and marital status, together with a short statement on “The Reasons I Want to Be a Surrogate ­Mother”: My reasons are two. First, I’d like to pay off both the loans for my university studies and for my motorbike. I’d like to send some money to my ­family who live in the province to fix our ­house and to help my mom who gave me life. Second, my Buddha teach about is good karma to help someone have life. I would be very happy if I can help someone want to have the baby dream come true. I am lucky I am strong body and have a good heart. If I can carry baby for someone want a lot, I can make many ­people happy too. . . . ​W hen we go to ­temple, many monks tell us this good idea b­ ecause is wonderful if we can help to give someone life. I am happy, healthy and strong. I want to share my good luck about this.

The entries for other Thai surrogates on the site provide less detail about the ­women, although most are purported to be single m ­ others, and all have passports

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and indicate their readiness to travel. Certain tropes run through their accounts. For example, they are open about the financial exchange involved, but this can be seen to be bound up with a moral economy that positions the ­women as ­mothers or d­ aughters. For example, Thanchanok is said to be thirty-­four years old, from Ubon Ratchathani, and the m ­ other of one child, who is four years old. She has already been a surrogate and is willing to undertake surrogacy again ­because “I want to complete e­ very f­ amily that c­ an’t have baby to help them to have their baby and keep money for my child.” Supaporn, described as a twenty-­four-­year-­ old single m ­ other from Pattaya, states her motivations bluntly and clearly: “I need money,” and “I am willing to have your baby as I need to provide a better life for my own child.” ­These public repre­sen­ta­tions of the motivations for undertaking surrogacy may be manufactured for a foreign public audience but are striking for their reliance upon Thai cultural understandings of motherhood, religious concepts of merit and obligation, as well as a pragmatic approach t­ oward payment. In the following sections, I detail some of ­these local understandings and values.

Carrying the Merit As in India, Buddhist ethics in Thailand are not opposed to surrogacy. While it is wrong to consider that religion defines cultural practices in any country, Buddhist thought is highly influential in Thailand, where 98 ­percent of the population professes to be practicing Theravada Buddhism. Generally speaking, within Theravada Buddhism, most ordinary p­ eople interpret karma as the balance between good deeds and bad that ­will affect one’s ­future reincarnation. Acts are defined as ­either bun (meritorious) or bap (unmeritorious), which have karmic consequences for the self and ­others. P ­ eople strive to improve their karma with good acts in this life. For ­women, pregnancy and birth is understood as a highly meritorious act by ­women that allows the rebirth of another life. This constitutes the moral framing for the surrogacy relationship. As I described in chapter  1, a gradual change has been apparent in social attitudes ­toward surrogacy in Thailand, reflected in the language used to describe it. By 2004, the term umbun (carry­ing the merit) was used for all forms of surrogacy. This term is overwhelmingly imbued with positive meanings, positioning surrogacy as a selfless meritorious act within Buddhist moral values that creates bonds of obligation and goodwill. This term superseded all ­others, although rarely did the foreign intended parents I interviewed know the term or understand its significance. The text provided by Katie, advertising on the surrogatefinder​.­com site, needs to be understood within this cultural discourse. Being a surrogate is said to “bring good karma.” As Katie’s text explained, even the monks at her t­ emple approved of the positive karmic consequences of Katie’s surrogacy as it would allow the



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rebirth of another life. Gestation and birth are considered markers of a w ­ oman’s adult status, and Buddhist ideology lauds the pains and sacrifices of pregnancy and birth as meritorious. Such understandings of motherhood and its relation to the sacrifices of pregnancy are reinforced by most methods of assisted reproduction in which w ­ omen endure extraordinary efforts and suffering to become pregnant. ­These concepts are evident in vari­ous Thai texts describing surrogacy. For example, the account of surrogacy provided within the Thai-­language educational book, “Yak pen mae khaekhad jai”: Mommy’s Story (Threechana and Pimonsing 2004), aimed at the general public, celebrates the Buddhist ideology of w ­ omen as nurturing altruists, as in the following account from a surrogate: “I have received a lot of good ­things in return for this good deed. I always get what I wish for. Perhaps this is b­ ecause of this good t­hing that I have done. I believe that being a surrogate mum is a good deed. That’s why it’s called um bun (carry­ing merit/good deeds).” Such accounts may be fictions inasmuch as they elide the conflicts, equivocation, and stress involved in the surrogacy relationship; nevertheless, they exemplify the framing of surrogacy within Buddhist discourses of merit making. Similarly, another Thai surrogate on the surrogatefinder​.­com website explained, “If I can help I would make merit (through this act). To give life to a person is something which grants a lot of merit. So I am happy to help.”

Bunkhun Relationships Another concept associated with childbirth and obligations to parents is bunkhun relationships. The Thai value of bunkhun can be roughly glossed in En­glish as feelings of gratitude for meritorious acts, f­ avors, or help (Podhista 1985, 39). It is most closely associated with motherhood, in describing the sacrifices, care, and nurturing provided by a ­mother to her ­children. As Akin Rabibhadana (1984, 1) notes, “By the mere fact that they brought them into the world, parents gain enough bunkhun to make it obligatory upon their ­children to support them.” In a similar vein, in his early work on what he called the “Thai peasant personality,” Phillips (1965) described how the bunkhun or debt of gratitude felt t­ oward ­mothers was highly valued; p­ eople spoke of how ­mothers go through the discomforts of pregnancy, feed their growing baby with their blood while in the womb, suffer the pains of childbirth, and ­later nurture their babies with milk from their breasts. The beneficiary of this nurturance must seek opportunities to return the f­ avor in order to express their gratitude, and in ­doing so attain merit. For men, ordination as a monk, which guarantees the accumulation of merit for their parents, repays their debt. However, for d­ aughters, the indebtedness is interpreted in exchange and monetary terms (Muecke 1984, 1992). This includes expectations for d­ aughters to provide material support such as through cash, consumer goods, paying for the education of younger siblings, or building a home

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for one’s parents. Even commercial sex work may be consistent with ­these ideals of a w ­ oman as a dutiful d­ aughter whose work and sacrifice enhance the well-­being of her ­family (Muecke 1992). In Katie’s case, surrogacy is the means of achieving ­these filial ends. The belief in bunkhun is pervasive in Thai society, acknowledged and understood across all classes and backgrounds (Liamputtong et al. 2004). The strong belief is that the debt of parents’ bunkhun is never completely repaid. A person who does not repay his or her parents’ bunkhun is considered to be khonnerakhun (khon meaning a person and nerakhun เนรคุณ meaning to revile, refuse, or betray) or khonakatanyu (อกตัญญู, an ungrateful person) and such ingratitude w ­ ill result in demerit or bap and ill health or misfortune ­either in this life or in ­future incarnations (Liamputtong et al. 2004). The concept of bunkhun has a number of consequences relevant to surrogacy. It is implicated in the positive attitude t­ oward ­women earning money as surrogates to support their ­family (an act of merit). Second, financial support through payment for surrogacy ser­vices is compatible with the notion of providing support for the one to whom one shows gratitude and with whom one has a bunkhun relationship. It therefore also implies moral recognition of the obligations of intended parents to their surrogate for giving birth. With regard to surrogacy, the act of carry­ing a pregnancy and giving birth thus implies a relationship of bunkhun, not only between the surrogate ­mother and the child who is born, but also between the surrogate m ­ other and intended parents. The act is one that is understood by Thais to bring a debt of gratitude and merit to the surrogate ­mother, regardless of w ­ hether or not she receives monetary payment for it. It implies a karmic link with the child who is born that lasts forever (and across Buddhist incarnations), and the good/meritorious acts of the child ­will impart some of their merit to the surrogate m ­ other as well as to the child’s biological parents or the parents who raise him or her. This remains so regardless of ­whether the child and birthing m ­ other ever meet again. In this way, such relatedness is performed rather than inherited through biology or developed through interaction.

Financial Exchange and the Moral Economy The open discussion of money by Thai surrogates and their need for financial compensation should not be read as mercenary. Exchanges of money have a long association with intimate relationships in Thailand (Lyttleton 2000; Muecke 1984, 1992). Moral economies in Thailand involve a generalized reciprocity often calculated in terms of material and financial support. For example, the bride-­price (sinsod) given by the groom to the bride’s parents is described colloquially in northeastern Thailand as the kha nom, or literally “price of a ­mother’s milk,” and is regarded as recognition of the nurturing and care given by parents ­toward their



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d­ aughters and a mark of re­spect to the bride’s f­ amily. Throughout Thailand money is also a source of merit making through gifts t­ oward the building or maintenance of ­temples and other donations or borijak. In short, monetary exchanges in Thailand are not seen in Western terms. The financial aspect of surrogacy is openly acknowledged as a means for surrogates to fulfil their responsibilities to their families. As mentioned earlier, compared to other options available to ­women in the local ­labor market, surrogacy and ova donation represent lucrative options. W ­ hether considered “commercial” or “compensation,” the financial amounts involved for surrogacy may be very high in the context of local economies and thus provide a persuasive incentive for impoverished w ­ omen. The ­going rate for surrogacy in Thailand had not changed when the surrogates I interviewed in 2016 stated that they earned 300,000 baht for a surrogacy pregnancy. Sasithorn was undergoing her second surrogacy and had used the money she gained from her first surrogacy to support her son’s education. As someone who had migrated from Laos to Thailand when she was twelve years old to work to help support her ­family, Aelan viewed surrogacy as another, more lucrative means to continue her role as a provider for her ­family. The evocation of ­these values may also be read as a means of affirmation of one’s moral standing and dignity as a worker within an occupation that remains marginalized by Thai and Lao society. In their accounts, the surrogates spoke of their “need” rather than their choice, and of the money earned being used for ­others, including their parents and c­ hildren, for such expenses as housing and education. In their stories of themselves as nurturing m ­ others and dutiful ­daughters undertaking meritorious acts to help o­ thers, t­hese surrogates w ­ ere drawing on traditional Thai morality to affirm their dignity and nullify any potential moral stigma attached to intimate ­labor (Pande 2010a).

Relatedness in Thai Surrogacy Local understandings also structure the relationships between the parties involved in surrogacy. Accounts from other settings suggest that surrogates may undergo considerable socialization to distance themselves from the child they bear for ­others (Pande 2010b; Vora 2010). Impor­tant to Thai understandings of the link between a surrogate ­mother and the child she births is both the nurturing that takes place in the womb and the act of birthing itself, entailing suffering that sets up f­ uture obligations between the child and ­woman. Thai understandings of karma suggest that such relationships ­w ill continue in some form in each subsequent reincarnation, ­whether or not they are fulfilled in the pres­ent life. As anthropologists have described, one of the ­things that gestational surrogacy does is confronts us with the tensions between the givenness of ge­ne­tic characteristics and relatedness. This is especially so in the context of differing cultural

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expectations of relatedness. The concept of the creation of kin ties of obligation through nurturing in the womb and the “feeding” of a gestational ­mother’s blood draws attention to the ways in which the category of what is included as “biological” within kinship may differ in Thailand from Western understandings. As Jeanette Edwards (2014, 47) notes in her essay on kinship in assisted reproduction, although many anthropological studies on the subject have described the interplay between the “biological” and the “social,” while emphasizing the fluidity of kinship, such studies “[run] the danger of assuming a priori, that we know what is included in the categories of biological and social, thus u­ nder problematizing how ele­ments get categorized as such.” Prior to any understanding of ge­ne­tics, Thai understandings of relatedness described the sharing of bodily substance, such as a ­woman’s blood and a man’s sperm. In my early fieldwork in northeastern Thailand in the 1990s, I was told repeatedly about the importance of blood as a vital substance that maintains strength and vitality in the body. Blood is produced through the consumption of rice—in par­tic­u­lar, consuming the correct rice for your body (in northeastern Thailand this is glutinous rice) creates this vital essence. Blood (luat) may take on vari­ous forms and colors. For example, breast milk is seen as a form of blood, converted into a form that a baby can drink. A fetus in the womb is thus nurtured through sharing a w ­ oman’s blood, her vital substance, and, a­ fter birth, her breast milk. Janet Carsten has described similar ideas about the mutability between food, blood, and breast milk in Malay understandings of bodily substances (2001, 47). In Thailand, the nurturance from a ­woman’s body in the womb is recognized as creating a form of kinship; blood is a primal substance linked directly to the child. Acts committed a­ fter birth, such as breastfeeding, the consumption of rice, and further nurturance, together cement this kinship, but their absence does not negate the initial act of nurturance in the womb in creating ties and obligations. Thai conceptions of kin relations do not therefore fit neatly into the distinct analytic categories of Western biomedicine that distinguish the ge­ne­tic from the nurtured. The Western nature/culture dichotomy does not neatly map onto traditional Thai understandings of the importance of the ­mother’s body through pregnancy. Understandings of blood further complicate ideas about relatedness, especially when gestation occurs in the body of a w ­ oman who has not provided the egg, as in surrogacy. Given that a fetus is nurtured by a ­woman’s blood while in the womb, in Thai understandings the child acquires some aspects of its identity through that ­woman, regardless of its inherited characteristics from its ge­ne­tic parents. Likewise, a w ­ oman’s actions, experiences, and emotions through pregnancy are understood to directly affect a baby’s identity. Expecting m ­ others are advised to avoid negative emotions and ugly sights and sounds, and to protect themselves from shocks, as t­ hese may all damage the unborn child. In sum, a child acquires some of its characteristics as part of a pro­cess of nurturance, and ­these partly derive from a shared substance (that is, genes) but are also mutable and transformed through



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the nurturance they experience in the womb and ­later through breastfeeding. In this way, most Thais believe that a surrogate and the child she births ­will always continue to have karmic ties and obligations to each other. ­These ties between a surrogate m ­ other and the child she bears for ­others are also mediated by the extreme care and attention placed upon the pregnancy that mark it as belonging not to the surrogate ­mother but to ­others. Surrogacy is not experienced as an “ordinary” pregnancy, and the surrogates I met usually had l­ ittle say in the decisions made about the number of embryos transferred, hormonal injections, vitamin supplements, testing, or caesarean sections, all of which w ­ ere determined by the clinic doctors and intended parents. Throughout the pregnancy, the surrogate m ­ others in my study underwent multiple tests and regular ultrasound scans and ­were advised to give up work and to rest to protect the “special” pregnancy. Some lived apart from their families in apartments in Bangkok near the clinic for the gestation. Surrogates such as Sasithorn and Ladda described looking ­after themselves better and eating more carefully during the surrogate pregnancy than they had when they carried their own c­ hildren. Ladda said that she was “looking ­after myself much better for this pregnancy than my own which ­were thamachaat (natu­ral).” This distinction between the “natu­ral” pregnancy and the fragile, high-­tech IVF pregnancy was reinforced by the greater medical attention and intense monitoring they experienced. Giving birth in a private hospital also reinforced the sense of special care. Among her sample of surrogates, Elina Nilsson (2015) noted that many expressed fear and worry about something ­going wrong with the surrogate pregnancy and felt a greater responsibility to have a successful pregnancy with the surrogacy than they had felt with their own pregnancies.

Kinning How kinship ties are recognized by intended parents and surrogates and made manifest through kinship relationships thus involves a creative pro­cess rather than representing a status that is given or achieved. Signe Howell coined the term “kinning” to describe the universal pro­cess by which a “foetus or newborn child (or previously unconnected person) is brought into a significant and permanent relationship with a group of ­people that is expressed in a kin idiom” (2006, 63). However, as Edwards (2014, 55) notes, ­there are limits and bound­aries to kinning ­shaped by vari­ous ele­ments and ­factors, such as the level of care and attention given within the group, class, place, desire for a relationship, and so on. She describes how intending parents may variously define the limits to their recognition of kinship, and some may abruptly “de-­kin” surrogate ­mothers or gamete donors. Edwards explains how “the substance shared by their offspring and their offspring’s gestational m ­ other is irrelevant to the f­ uture embeddedness of their ­children in a complete and complex kinship network” (55). As Vasanti Jadva and

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Susan Imrie (2014) similarly note in their study of surrogates and kinship in Britain, perceptions of relatedness among surrogates, their partners, intending parents, and c­ hildren are complex and varied. Kinship can be forged through care, desire, and attention in the case of intending parents, who determine the degree to which they allow their gestational surrogate to become a part of that. But kinning can also be disrupted and blocked by structural issues related to the organ­ization and practices of the surrogacy exchange, or the sheer logistics of language differences and geography. The Thai kinship system offers g­ reat flexibility, reflected in the widespread practice of using fictional kin terms and the inclusion of non-­kin in the ­house­hold. In the narratives of surrogates, t­ here is evidence of the incorporation of the intended parents into social kinship by surrogates. For example, Jintala, the surrogate ­mother of Elise’s d­ aughter, calls Elise her phiisao or elder ­sister. The use of this term indicates both the age differential (younger surrogate to older intended parent) and the intended parents’ superior social status. By implication, a phiisao is understood to have a duty to protect and care for her nong sao or younger s­ ister. Indeed, the phii-­nong relationship implies patron-­client obligations. As Rabibhadana observes (1984, 1), “By their obligatory nature, all relationships resemble ­those between friends and patron-­client relationships—­a deep rooted institution in Thai society.” Through the use of terms that denote the social and economic se­niority of the intended parents, surrogates are including them in their moral world such that ­there is an expectation that patrons or t­ hose of se­nior status w ­ ill demonstrate care and attention, including financial support, to ­those of inferior status. Similarly, the child produced through surrogacy tends to be addressed as nong, a generic term used for ­children and ju­niors, but it also implies obligations to care for and protect. However, such linguistic nuances are usually not understood by non-­Thai-­ speaking intended parents. The degree of contact between intending parents and Thai surrogates varied and depended upon the organ­ization of the par­tic­u­lar agency involved. In general, intended parents and Thai surrogates usually had an opportunity to meet, but most ­were able to maintain only superficial relationships due to language difficulties, which largely precluded any long-­lasting intimate ties or meaningful incorporation into the extended f­amily, as described in other accounts of surrogacy relationships (Teman 2010). The forging of any contact depended upon the desires of the intended parents and how open and committed they w ­ ere to the prospect of an ongoing relationship with the surrogate(s), w ­ hether they had an opportunity through their agent or clinic to meet their surrogate(s), how many surrogates they used, w ­ hether the surrogates wished to maintain contact, and the sheer logistics of maintaining contact. In Thailand, if requested, some agencies and clinics maintained the anonymity of parties on each side of the exchange, which prevented any further ties from being forged. The ­legal context also affected the degree of contact encouraged between surrogates and intended parents.



Merit and Money 65

The surrogacy agencies also had commercial interests in not allowing surrogates and parents to be in contact. ­Under the guise of it being “easier” if the arrangements remained anonymous, clinical, and business-­like, contact was also discouraged to prevent surrogates from learning how much intended parents ­were paying in total for the surrogacy and parents from making further payments to surrogates, which could then affect the prices surrogates might demand for their ser­vices once word got around. For example, Chris explained: “Like we ­were told by one agency that we ­didn’t end up ­going with . . . ​they said, ‘Oh, you know, try not to form a ­really close relationship with your surrogate ­mother; ­they’ll try and ask for more money. It’s best ­after the birth just to keep your distance.’ ” As evident in statements such as this, agencies played upon the dif­fer­ent cultural interpretation of the payment of money as purely a business transaction, thereby seeking to negate the potential for an affective relationship. This contrasted with the marketing hype of agencies, which portrayed the caring surrogate wishing to help ­couples. Such tropes of the untrustworthy surrogate demanding more money from intended parents are also common in Indian surrogacy, based upon a common presumption that surrogates are w ­ omen who are particularly ruthless and pecuniary and that their class position in relation to intended parents always compels them to ask for more compensation (Majumdar 2014, 202). However, as w ­ ill be seen in chapter 5, some intending parents circumvented such rules and developed links with their surrogate m ­ others, maintaining (albeit often fragile) contact to update their gestational surrogate about their child’s pro­ gress and development through Facebook and Skype. Given the limitations imposed by their language differences, quotidian demands and practicalities, and the misinterpretations of Google Translate, it remains uncertain how long such ties can be sustained. In some cases, the agent is also incorporated into the f­ amily network and intended parents ­w ill continue to update the agency about their child’s development and send photos, some hoping that the agent ­will pass them on to the anonymous surrogate. For some intended parents, the relationship with their surrogate also carries a certain tension, given that the intending ­mother may not be considered the ­legal ­mother of a child born to a Thai surrogate. For example, Australian intended parent Elise (whose story I describe in chapter 3) did not legally adopt her second child born to a Thai surrogate. In such a case, ­under Thai law the surrogate remains the ­daughter’s l­ egal ­mother. Nor did Elise apply for an Australian parenting order. She placed emphasis upon ge­ne­tic relatedness along with nurturing as the real bonds defining kinship.

Conclusion In the previous chapter, I described how the po­liti­cal economy of embodied capitalism in Thailand and the development of a sophisticated ART capacity and

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medical tourism industry catalyzed the development of commercial surrogacy in Thailand—­the material under­pinnings of the surrogacy assemblage. H ­ ere I have described its ideological under­pinnings. Empirical work in a number of settings shows how ­there are other ethical values beyond the strictly economic that are negotiated in commercial surrogacy relationships. “Situated ethics” allow us to locate and understand the tensions, competing logics, and contradictions within ethical practices (Ong 2010, 13). In this case, Thai surrogates write of their involvement in terms that evoke surrogacy as a selfless, meritorious act, creating bonds of obligation and goodwill that allow them to fulfil their filial duties as d­ aughters and ­mothers. Such local moral economies help sustain the trade. Local ethics of surrogacy as meritorious, combined with ideals of dutiful motherhood and the realities of economic need, form part of the assemblage sustaining the practice of commercial surrogacy in Thailand. Th ­ ere are parallels with other intimate economies. Similar discourses are found in the narratives of Thai female mi­grant workers, sex workers, and factory workers, and t­ here are movements between t­ hese vari­ous sectors. They appeal to a similar demographic, involve similar means of recruitment, and validate the ­labor involved. I should add a caveat to this discussion. I am not suggesting that ­these ideologies are fixed and unchanging. To pres­ent ­these ideas as some sort of overly rigid coherent philosophical system that determines all actions would be misleading in the face of obvious variations between ­people and localities. Nevertheless, my account ­here does suggest that such ideas are deployed in practice, in ways that can further par­tic­ul­ ar interests—­such as by agencies to promote surrogacy as “culturally acceptable,” by surrogates to rationalize their actions, and by agencies to socialize surrogates in their ­labor. At one level such accounts may be read as yet another example of how capitalized economic relations involving h­ uman bodies are often masked by other forms to soften the pecuniary image, in this case, of commercial surrogacy (Scheper Hughes and Wacquant 2002). For example, meta­phors of surrogates as “angels” and ­children as gifts are commonly evoked in clinic discourse and advertising and in intended parents’ speech in the United States (Ragoné 2005). In Thailand, the local values of making Buddhist merit and ideals of dutiful motherhood are evoked. “Carrying merit” may be simply a new meta­phor masking power differentials, economic stratification, and the potential subordination of w ­ omen by other (wealthier) ­women and men. As I discuss in chapter 6, the controversies that beset the Thai surrogacy industry in 2014 and led to its eventual banning evoked other ideologies, of ­women’s bodies as the bound­aries of the Thai nation, ­under threat from foreigners and non-­ Thai values. Yet as I w ­ ill describe in chapter 8, Thai w ­ omen continue to “carry merit” as surrogates, traveling to other countries for embryo transfers and then giving birth in Thailand or elsewhere.

3 • THE BEST OF INTENTIONS Now ­after t­ hey’re born we are just a normal f­ amily. It ­doesn’t r­ eally m ­ atter how we came into being as a ­family, it d­ oesn’t m ­ atter for most purposes. ­We’re not a ­family through surrogacy. W ­ e’re just a f­ amily now. (Joseph, ­father of twins born through surrogacy) Never doubt yourself. Parenting is your journey. (Chris, ­father of three ­children born through surrogacy)

Depictions of intending parents vary widely in the popu­lar media and academic lit­er­a­ture, from “desperate” c­ ouples to exploiters of other w ­ omen, from pioneers in new ­family forms to neoliberal consumers. The lived experience of international surrogacy defies easy stereotyping. As I was repeatedly told throughout my research, the experience differs markedly between c­ ouples as each undertakes their own unique “journey”—­a statement describing both the distances intended parents travel and the existential transition into parenthood. The intending parents I met during the course of this research entered surrogacy arrangements with considerable trepidation, excitement, hope, and concern, and for some a certain naivety about the complexities the pro­cess might involve. They entered arrangements with the best of intentions: to form a desired biological f­amily. Yet, as they enter into arrangements overseas, they become another part of the assemblage, subject to the exigencies and contradictions of the surrogacy industry. As this chapter ­will show, ­those intending parents who entered into arrangements in Southeast Asia met special challenges and w ­ ere often forced by the structure of the industry to compromise their ideals about forming their ­family through surrogacy. Many had to relinquish their desire to form a relationship with their ova donor or surrogate or w ­ ere forced into sometimes uneasy compromises over their personal concerns about the conditions in which their surrogates ­were chosen, paid, or lived. Seeking to engage a surrogate within an industry attuned to a quick contract and mass market, they usually had l­ittle opportunity to understand the context of their surrogate’s motivations or lives, exacerbated by language differences and the ready reassurances of their facilitators. In retrospect, many of ­these parents provided pragmatic post-­facto narratives of satisfaction; a­ fter all, the end 67

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result of a beautiful baby nullifies and justifies the means. Yet, in the narratives of many parents, the effects of becoming enmeshed within the industry emerged from their disquiet about how they lost control as the facilitators and medical staff took over the logistics and management of the pregnancy. For ­those who ­were engaging in surrogacy at the time that international surrogacy was banned in Thailand and ­later Cambodia, their lack of control became frighteningly obvious as they found themselves with no means to contact their surrogate or agency, and ­little information about what was ­going to happen with their surrogate’s pregnancies or ­whether they would be allowed to leave Thailand with their babies. I selected ­these case studies b­ ecause, in many ways, they typify the intended parents I met in the course of this research but also b­ ecause of the depth of detail they ­were willing to impart and their openness and honest discussion of their feelings. I quote them at length to allow them to express their experience in their own words. Such interviews constitute forms of “ethical demand” (Zigon 2008) from the anthropologist expecting reflection, recognition, and articulation of decision-­making pro­cesses from in­for­mants in ways they may not have previously contemplated. My interviews began with me asking the in­for­mants to provide the story of their surrogacy experience—­thus, to articulate their version of events, which produced moments of tension, justification, and recognition of the dispositions of the dif­fer­ent social actors involved. ­There are some consistencies across the narratives, perhaps reflecting the rehearsed justifications and explanations they had already given to curious f­ amily members and friends. But t­ hese stories also reflect the dif­fer­ent approaches of, understandings of, and situations faced by ­these intended parents. In this chapter, I pres­ent case studies of three c­ ouples, whose stories represent the ­human face of intending parents’ experiences. What can be seen in t­ hese accounts is a negotiation over the emotions aroused by surrogacy—­conflicts between the ways in which the clinics and facilitators define and ­handle affective ­labor and business relationships against the inevitable emotions aroused for both the surrogates and intended parents. All three case studies involved surrogacy in Thailand as, by the time this research was conducted, Indian surrogacy had closed for Australian ­couples. The first ­couple, Joseph and Dan, had twins via two surrogates in Thailand in 2014. Peter, subject of the second case study, was interviewed in 2015, four months ­after the birth of his twins, when they ­were back in Australia and settling into their new routines. I interviewed the subject of the third case study, Elise, in Thailand also in 2015, shortly a­ fter the birth of her second d­ aughter at the time, when she was still uncertain of how long it would be before she could take her back to Australia. Both Elise and Peter and their partners ­were in Thailand at the time of the clinic raids and the uncertainty surrounding the industry prior to it being banned. Following the discussion of ­these cases, I supplement their perspectives with ­those of other intended parents with whom I spoke, to explore what families did when t­ hings went wrong with their arranged surroga-



The Best of Intentions 69

cies. Fi­nally, in this chapter I consider a surrogacy support and advocacy organ­ ization to demonstrate how ­people involved in the industry have been coming together and forming new identities around their quests for ­children. ­There is ­little qualitative research about Australians traveling overseas for surrogacy. A study by Michaela Stockey-­Bridge (2017) documents the travel of Australians to undertake commercial surrogacy arrangements in India, with insights into the motivations, concerns, and experiences of intended parents, their surrogates, and the broader organ­ization and economy of the Indian surrogacy industry. The Australian ­couples she followed saw transnational surrogacy as their only means of forming a ­family. The discourse of hope figured prominently in their narratives as well as that of the clinics they attended. As in my interviews with intended parents, each ­couple in Stockey-­Bridge’s research had a dif­fer­ent trajectory and varying experiences leading to the surrogacy clinics of India. Some resorted to surrogacy following traumatic reproductive histories, while o­ thers had unsuccessfully tried to adopt ­children but encountered bureaucratic difficulties in ­doing so and ­either w ­ ere considered ineligible or ­were too old once the vari­ ous hurdles had been overcome. Among my in­for­mants, some gay ­couples had considered coparenting arrangements as a means to achieving biological fatherhood but preferred a surrogacy arrangement for its lack of complicated relationships. Many w ­ ere deeply concerned about the ethics of their transactions and the potential for exploitation of overseas surrogates. In most cases, they had l­ittle opportunity to meet or develop a relationship with their surrogate, and language differences usually limited interactions. As one ­mother, Sarah, told me, “It seemed easier in the headspace we w ­ ere in, the quickest and easiest way to start a ­family.”

Joseph and Dan Joseph and his partner, Dan, had two ­daughters through surrogacy in Thailand. They had been together for over eleven years and “always planned we would have kids one day and we knew that surrogacy would be one of the options available ­there.” Joseph became aware of international surrogacy options through a current affairs program on TV that featured surrogacy in the United States and India. Like all the other ­couples interviewed, they investigated vari­ous options and destinations primarily via the internet and social media: We searched a lot online, we emailed a number of dif­fer­ent agencies and asked them for information and we also engaged with some online communities, for example, on Facebook, about surrogacy as well and talked to p­ eople, not talked but typed to p­ eople I guess [laughs], talked to p­ eople online. I should actually add that I did talk to someone. I called up a stranger from interstate, another Australian but from interstate, I called them on their phone who I’d found online just to chat about their experience as well, so certainly I did seek out other ­people

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who had previously engaged in surrogacy overseas or ­were part-­way through the pro­cess as well.

As Joseph and Dan ­were a gay c­ ouple, India was closed to them at that time, so they chose Thailand. The United States was a possibility, but the higher cost made Thailand a more comfortable choice. Once they had deci­ded upon an agency, they made their first trip to Thailand: “We felt very excited, a ­little bit, you know, I guess we ­were in a foreign country, every­one spoke En­glish pretty well but you still have that foreign aspect to it. We d­ idn’t ­really know—we felt a ­little bit sort of powerless in some ways.” Once in Thailand they ­were impressed with the clinic setup and noted that some aspects of the medical facilities ­were better than what they had experienced in Australia. While ­there they donated sperm for ­later use. They also went to look at the hospital used for maternity care. Joseph and Dan did not receive any counseling at the clinic; rather, with the agency staff they discussed the procedures they wanted and the contract. They ­were able to insist upon single embryo transfer and ­were offered preimplantation ge­ne­tic screening (PGS) and pos­si­ble sex se­lection, although they deci­ded against the latter. They did not meet the egg donor or surrogates before the pro­cess began, instead selecting them on the basis of advice from the agency. They had an anonymous Caucasian egg donor who was flown into Thailand: “That was or­ga­nized through the agency as well and they sent us some profiles with pictures and with basic demographic and health information about the egg donors and so we selected one based on that information.” Joseph and Dan used two surrogates: The surrogates had already been selected by that point so we ­didn’t select the surrogates, they w ­ ere selected for us by the agency. We ­were sent some very basic information via email so we could engage further—we may have been able to ask for a dif­fer­ent surrogate or something, I’m sure we could have, but we received some basic information about the surrogate via email earlier and we w ­ ere happy with them to continue with t­ hose ­women. . . . ​We ­didn’t actually find out that much about recruitment of the surrogates. In retrospect, I won­der why we ­didn’t ask more at the time but t­ here was so much ­going on. We did ask a lot of questions in emails earlier on about vari­ous t­ hings but ­there’s so much that we ­didn’t get a chance to ask ­because it was all over email and ­there was so many ­things to be worried about.

The ­couple kept their surrogacy plans secret ­until they had two successful twelve-­ week pregnancies. They ­were concerned that their attempts might not be successful: “We ­didn’t even tell ­family or friends that we ­were engaging in surrogacy at all. We went to Thailand in secret the first trip [laughs] ­because we thought it would be too suspicious. I think we had talked about it, about surrogacy, so we actually went t­ here in secret that first trip and we d­ idn’t tell ­people ’til twelve weeks,



The Best of Intentions 71

so we tried to keep every­thing low key and keep the excitement down as much as pos­si­ble as we went on.” Joseph and Dan arrived in Thailand two weeks before the planned caesarean sections to prepare every­thing, and met the surrogates the day before the births. Although not allowed into the operating theater for the births, they got to see their newborns as they w ­ ere wheeled into the nursery: “So we waited outside and they just got wheeled past. We got to see the babies when they ­were being wheeled from the delivery room to the nursery where they w ­ ere ­going to be cleaned up so we saw them before they ­were cleaned up but we just got to see them wheeled. We ­didn’t get to hold them or anything at that point. . . . ​We w ­ eren’t actually allowed to be in that room e­ ither, so we got to see them while they w ­ ere being wheeled between ­those rooms, and then ­after they had been all cleaned up and then we w ­ ere allowed to come in and see them.” For the first three days, the babies ­were cared for in the nursery by the nurses. Although they would have liked more contact with the babies during this time, it was not encouraged, and Joseph and Dan ­were only allocated specific times to hold them and learn to bathe and feed them: “I think it’s quite dif­fer­ent to the Australian experience but, I mean, that’s just a cultural difference. It’s slightly disappointing but that’s not ­really a big deal in the big scheme of t­ hings. We tried to work within their systems and not make a fuss. I think foreigners would sometimes make a fuss about ­things and make ­things difficult for the hospital staff.” On the fourth day the babies ­were handed over to them by the hospital staff and they returned to a ser­viced apartment to await the paperwork. “It was a bit sort of sudden. Like, we ­weren’t allowed to see them, ­didn’t have that control, and then suddenly t­ hey’re like, ‘­Here you go, ­here are your babies and now ­you’ve got them for the rest of your life.’ [laughs] It was a ­really beautiful sort of moment.” They had ­little contact with the surrogates following the births: “We saw them ­after but not directly a­ fter, we d­ idn’t see them in the hospital. We saw them a few days ­later I think. We saw them a few times a­ fter the birth just at the hospital in the hospital foyer and at the Australian embassy.” Joseph spoke of this moment when they met with the two surrogates at the Australian embassy when they came for their interviews with embassy staff, at which no one from the agency was pres­ent: They entered the Australian embassy by themselves before we got ­there and we entered separately and then got to go “talk” to them for a while b­ ecause we c­ ouldn’t communicate in the same language so they held the babies and talked to each other. They took photos of the babies on their mobile phones and tried to communicate with us about what they ­were saying. . . . ​I think both us and the surrogates ­were more comfortable without the agent t­ here, funnily enough, even though we strug­ gled to communicate. So I felt that that par­tic­ul­ar meeting is where we actually, without using complicated words, communicated a ­little bit better with the

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surrogates. I’m happy we had that experience ­because I do feel more confident about how happy they w ­ ere with the pro­cess and with ­doing this for us and with us being the parents of the kids and t­ hings like that. I feel a bit more confident about how real that was when it was just us and the surrogates.

Like most intended parents, Joseph and his partner gave high-­value gifts to their surrogates at the birth of their babies, even though agencies often discouraged the practice. Such gift giving implies reciprocity and positions the transfer of the child in moral terms rather than simply commercial ones. Intended parents often agonized over what was best to give their surrogate and how to give it to her without the agency finding out. For example, Joseph explained how they ended up putting necklaces in plain paper bags: We worried a lot about how to thank them and what we should do in that sense. We wanted to buy them gifts and we ­didn’t know exactly—we wanted to buy them high-­value gifts as well but we w ­ ere limited, you know, y­ ou’re not supposed to give them—so we got them some gold necklaces which we’d purchased in Thailand ­because our online research told us that they have very par­tic­ul­ ar types of gold, so in case they did want to trade that in for additional money rather than keeping it as jewelry. So I think we fussed a lot about what to say to the surrogates and how to give them gifts, and we also ­didn’t want the agency to potentially take the gift from them or something like that if t­ here was the power issues which we d­ idn’t see anything of, but you do worry about the power imbalance between the agency and the surrogates so we did try to do what we could in that sense.

Once the paperwork, DNA testing, and passports ­were fi­nally completed and pro­cessed by the embassy seven weeks ­later, Joseph and Dan took their ­daughters home. Joseph estimated that, with flights, accommodation, and every­thing included, their surrogacy cost around AU$80–100,000 (US$60–70,000). As with most other families, the significance of the manner of conception, pregnancy, and birth fades once the daily nurturing and quotidian demands of caring for their c­ hildren take over. While their identity as intending parents is all consuming for a brief period, their new identity as simply parents takes over. Joseph put it very succinctly: “Surrogacy is the story of their birth and they have a story book which tells their story which we read to them already. We printed up a photo book which has their pictures with their surrogates so ­they’ve got their story of the personal journey and that’s their story of their birth and it’s something that ­will be impor­tant to them and it’s something they w ­ ill want to share with other ­people. But, in general, surrogacy is likely to not be a big part of their lives, not be a big part of our lives. That happens to be the story of their birth but you d­ on’t want to focus on it too much.” Joseph and Dan’s experience involved a distanced relationship between intended parents, egg donor, and surrogates. All communi-



The Best of Intentions 73

cation with regard to the pro­gress of the pregnancies came via the facilitator, and they had no contact with the ova donors and l­ ittle contact with the surrogates. They had minimal contact with the babies immediately ­after birth u­ ntil the hospital handed them over four days ­after birth. Although they found the attitudes and practices at the hospital “somewhat disappointing,” Joseph and Dan accepted how the surrogacy was arranged. Yet the moment of “connection” Joseph experienced with the surrogates at the embassy remains vivid and speaks of the possibility of a more intimate and connected relationship between gestational surrogates and intending parents. Joseph spoke with love and won­der about his ­children and his hope that they may be accepted as an ordinary ­family and that the means of conception and gestation do not define Joseph and Dan or their ­children.

Peter and Ben At the time of the research Peter and his partner Ben, like Joseph and Dan, had been in a long-­term relationship for over seventeen years and “had always spoken about wanting to have c­ hildren and knew a l­ittle bit about surrogacy.” Peter and Ben had taken an extended period of time, over six years, to make their decision to go ahead with a commercial surrogacy arrangement overseas. “We knew that other ­people w ­ ere g­ oing down the surrogacy path. We looked at foster care or adoption in Australia, for surrogacy in Australia. In the end, Ben r­ eally wanted to be a biological f­ ather of the c­ hildren, so obviously surrogacy was the way we ­were ­going to go then.” The ­legal situation in Australia and the difficulty of finding a local surrogate led them to decide to travel for a commercial arrangement. They felt a commercial arrangement would be more straightforward and “clearer” than undertaking an altruistic surrogacy arrangement with a friend or relative, an approach consistent with Dean Murphy’s (2015, 259–269) findings in his study of gay parents in the United States and UK who used the term “clean transaction” to describe how they wished to avoid mutual social and emotional obligations t­ oward surrogates through a contract and payment. We looked at surrogacy in Australia and we just in the end thought, look, we want to go where it’s clearer, like the idea of a commercial arrangement to us means that the ongoing arrangements w ­ ere g­ oing to be clearer for all the parties involved, whereas we thought that the noncommercial kind of arrangements with someone who you had only just met d­ idn’t ­really mean it was ­going to be secure in the ­future. So the other part of that was that we ­were looking at who [might be altruistic] surrogates, ­people that we knew, and said, we thought it’d be clearer and more secure if the child d­ idn’t have biological ties with anyone h­ ere. We wanted that to be clearer. . . . ​We had heard of it and certainly some p­ eople we know who had relationships fostering through lesbian partners who are friends of theirs, it has

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actually turned a bit tricky, whereas some ­people said, “It’ll be separate and clear and this is how the demarcation w ­ ill work.” But of course once you actually start the person having the child, the feelings change along the way . . . ​then that turned into them wanting to have a say on the way the child was brought up. It just led to some complications. O ­ thers had had a fantastic experience on that front, but we just thought that we looked at some of our friends and, in the end, we thought it’d be complex.

For Peter and Ben, the decision to undertake international commercial surrogacy required major changes to their jobs and residence. Both had had jobs in the Australian Capital Territory (ACT). Ben had moved to the state of New South Wales (NSW), but laws banning residents from seeking commercial surrogacy overseas ­were introduced ­there, so they moved back to the ACT on the advice that it was l­ egal in that territory, only to find that the ACT had introduced similar legislation. Fi­nally, they both changed jobs and moved to the state of Victoria for two years to enable them to legally seek commercial surrogacy overseas. Since the birth of their sons, they have made a “tree change” and moved to a farm back in NSW, starting a ­whole new lifestyle to raise their f­ amily. Originally, they wanted to go to India for surrogacy as Ben’s ­brother had had a successful surrogacy experience ­there. They took a long time to research where to go and the conditions and practices used by vari­ous clinics: “It took us a lot longer than other ­people we know, like my brother-­in-­law, they basically signed it overnight, off they went and a year l­ ater they had a baby, and we took six years of me saying, ‘No, it’s got to be done according to the right laws and ­we’re ­going to make sure w ­ e’re in the right place.’ . . . ​I wanted to look into how places w ­ ere being run and have references from ­people.” But as they ­were engaged in this decision-­making pro­cess, India banned gay ­couples from undertaking surrogacy, so they had to quickly change their plans. Still they had misgivings as, unlike Joseph and Dan, they ­were determined to develop a connection with the surrogate ­mother: “Our concerns about India ­were largely that every­one we spoke to had pretty much said they d­ idn’t ­really get to have relationships with the m ­ other, and that it was ­really a commercial arrangement and you ­didn’t actually get to spend a lot of time with the ­mother, getting to know her, getting to know what she was ­going through, getting to offer her support or even know how she was being treated or cared for during the pregnancy. That was something we ­really liked about Thailand.” They found out about surrogacy in Thailand at a Surrogacy Australia conference, and linked up with a clinic that had advertised at the conference and then traveled to Thailand. They selected an egg donor and, in breach of normal procedure, insisted on meeting her. Likewise, they selected and met their surrogate. But two initial cycles with their first Thai egg donor failed. A new egg donor was found, and Peter insisted that he meet the new ova donor and traveled to



The Best of Intentions 75

Thailand especially for that purpose, despite her reluctance to meet him—­a reluctance not properly conveyed by the agency. Since the birth he has attempted to make contact with a f­amily who had used the same donor in case the part-­ genetic siblings might in ­future wish to have knowledge of or even meet each other. I said, “I d­ on’t want to go ahead u­ ntil w ­ e’ve actually met.” And so I flew in for a one-­day visit and when I got t­ here, I said, “­Great, when’s the egg donor coming in?” She goes, “Oh, she’s not coming,” but that’s the w ­ hole reason I’m ­here! And so then they called her and arranged for her to come and I got to meet her. But she just ­wasn’t interested. She was ­doing it as a way to get herself through uni[versity]. We know that she’s donated to one other ­couple and ­they’ve had twins. ­They’re in the UK. And they ­were through our agent as well. We ­don’t know who they are, but [­after the birth] we sent an email to them via our agent saying, “This is who we are, ­here’s photos of us and where we live. ­Here’s photos of the boys. If ever you or your c­ hildren want to make contact, w ­ e’re happy.” We have no idea who they are or where they are except in the UK, and they ­didn’t reply to it.

On their third and final attempt at fertilization, Peter and Ben ­were encouraged by the clinic to try two surrogates (parallel surrogacy): “On our final attempt, we’d actually seen the agency and said, ‘This ­really has to be our last attempt, ­we’re out of cash.’ And they ­were saying, ‘No, ­we’ve got more eggs. Keep on trying,’ and we said, ‘No, we ­can’t.’ So they said let’s get two surrogates and they implanted two embryos in each surrogate. In the end, only one of them took, only one surrogate.” The use of two surrogates was something the clinic suggested to maximize the possibility of a successful pregnancy. Peter and Ben went ahead with two surrogates even though they w ­ ere concerned about the possibility of both surrogates becoming pregnant and that they could end up with multiple births: “We actually thought ­there is a chance that even if one of ­those eggs split, they ­were allowing the surrogate up to three babies, so we could end up with six. Now having had twins for four months, I ­don’t know what we w ­ ould’ve done.” Their surrogate whose implantation was successful was from the northeast of Thailand, and they paid for her to stay in Bangkok for the year of her surrogacy to be close to the clinic and agency. Her parents came to Bangkok to support her ­after the birth, and clearly they knew about the surrogacy. Peter stated that the most pressing issue for him and Ben during the pregnancy was the welfare of the surrogate, and they visited Thailand during the pregnancy to see her and check that she was being well cared for. They appreciated even the limited contact they ­were able to have with her: The key issues for us ­were exactly how it was g­ oing to work for the ­mother overseas. We w ­ ere concerned about the ethical questions around that, how is she

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g­ oing to be cared for, is she ­going to be cared for well enough, what happens if something goes wrong for her. We ­were incredibly lucky in that, we know lots of ­people where fairly awful ­things happened health-­wise, so that’s why we wanted to be in touch. Thankfully we ­were put a ­little at ease, well mostly at ease, by ending up getting to be able to have direct contact with our surrogate. Although she ­doesn’t speak En­glish, we knew where she was, she knew where we ­were and it was largely through a ­mistake that the agency made that they sent us documents from some of the early tests that had the three bodies’ contact details on ­there. And then the surrogate contacted us. So ­they’d already been at the [agency] place with them saying, “You w ­ on’t make contact u­ nless it’s via the agency.” So we r­ eally found that they ­were all a bit slack on that front and you often got documents that gave other ­people’s details. So ­there was even times when I saw details of other surrogate families.

Communication with the surrogate was difficult and frustrating throughout their surrogacy. They tried to use Google Translate but realized that it was very poor at translating Thai and sentences would come back almost nonsensical. They then used a person from the agency as the translator to talk to their surrogate. Peter and Ben found communication with the medical staff at the agency even harder: I wanted to ask lots of questions and they r­ eally d­ idn’t want me asking so many questions. It was very much a Thai ­thing and ­they’d say, “It’s all okay.” Even when the vari­ous transplants or embryo implants had failed, all we got from the doctor ­after many emails saying, “­Really, can you tell us what’s happening?” He’d go, “It’ll all work. It’s all fine.” Then we’d get an answer back, “It must just be the eggs. You just need to try again.” That was the complete information. So the communication was harder actually with the medical prac­ti­tion­ers. They d­ idn’t seem to want to put much time into that.

They received the scans from the clinic via email, with ­little accompanying information. In a similar vein, Peter and Ben ­were informed early on that their surrogate had placenta previa, a condition that can cause serious complications and premature birth: “Yeah, she had placenta previa. She had it early in the pro­cess and it corrected itself, but again they d­ idn’t tell us that it was corrected. We w ­ ere just asking, ‘What’s happening?’ and eventually they said, ‘No, it’s fine.’ ‘You ­could’ve told us!’ [laughs] Given we received an email that said she’s spotting blood and it could result in the loss of the baby!” To follow the pro­gress of the pregnancy, Peter and Ben asked their ­family doctor to help them interpret the scans and understand the stages of pregnancy, and Peter also referred to an app that gave him a weekly message via his phone describing what the m ­ other would experience week by week.



The Best of Intentions 77

Peter and Ben had a ­lawyer acting for them to check over contracts and negotiate with the agency. True to Peter’s desire for every­thing to be done legally and via proper pro­cess, at the time of the interview the same ­lawyer was preparing a ­legal application for parenting ­orders: So he ­really worked quite a lot on that contract and ­because he had a relationship with the agency we ­were g­ oing through, he was able to call them directly and say, “You need to fix this, this is wrong.” Or when I expressed concern about them disappearing off the map, particularly when the Thai laws ­were changing, we had no idea what was happening and the agency just dis­appeared for a l­ ittle while, but he got on the phone to them and said, “You ­can’t do this to your clients.” That was helpful. What ­wasn’t so helpful is we got ­there and discovered that some ­things like ­doing your citizenship applications and your passport applications is actually, while it’s laborious, was a very easy pro­cess and we could do that entirely for ourselves.

But then, following years of po­liti­cal unrest and major public demonstrations, a military coup took place in Thailand. L ­ ater, following the Baby Gammy case and other controversies (see chapter 7), the military government raided several clinics offering international surrogacy and shut them down. For fear of arrest, many facilitators and clinics ceased all communications with intending parents and surrogates. Peter and Ben w ­ ere one of the many c­ ouples who ­were uncertain about the f­ uture of their surrogacy. As clinics closed or w ­ ere raided, and dramatic headlines made the front pages of newspapers, they lost contact with their facilitation com­pany: That was ­really worrying. We actually found out ­because we ­were due to receive a scan and it ­didn’t come through. So I emailed and d­ idn’t get a reply and I kept emailing, ­wasn’t getting replies. It was around that time that we saw on the news what was happening. We ­were ­really concerned b­ ecause the news we ­were getting through online forums and through media speculation as well was that the ­mothers ­were ­going to be tried as criminals actually in Thailand. That was the biggest fear, that they w ­ ere ­going to abort babies, not good for anyone. So that was our biggest concern, we c­ ouldn’t get information. The media in Australia certainly overplayed it and that led to a daily experience of walking into my workplace where I’m the director of a fairly large team, and ­people are looking at me ­going, “What exactly is ­going on ­here?” Indirect questions tend to be along the lines of, “Are you actually committing a crime with what ­you’re ­doing?”

The stress took its toll and Peter described a low point at which he ended up crying in public when asked about their situation: “The daily media barrage was just upsetting and it was hard ­because you w ­ ere just trying to keep sane and focused

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on it. When your friends ask you lots of questions about it, and they tend to ask questions of men in a way that they prob­ably ­wouldn’t ask of ­women or ­mothers, and you felt you ­were lectured and told pretty bluntly. ­There w ­ ere times where it got a bit much.” Peter’s observation that ­people ask questions of men that ­wouldn’t be asked of ­women points to the differences for non-­heteronormative parents undertaking surrogacy. In his study of gay ­couples undergoing surrogacy in the United States, Marcin Smietana (2017) describes how normative discourses of parenting force gay parents to feel they must account for their reproductive activities and defend their skills and worthiness to parent in ways not demanded of heteronormative ­couples. Another gay ­father, Chris, noted how he feels some pressure to always have his c­ hildren dressed nicely in public and appear to be superor­ga­nized to assert his capability to parent. To some extent this desire to fulfil normative expectations is felt by all families formed through surrogacy. However, gay parents noted that, unlike heterosexual ­couples, ­there was no way they could hide the fact that they needed surrogacy to reproduce. This made it especially difficult at times of public controversy over surrogacy. Peter and Ben had always been very open about their surrogacy, telling f­ amily friends and work colleagues: We made a decision very early on, before we even started the pro­cess, that we ­were g­ oing to tell every­body so that every­body we knew would know what was happening, that was every­body would know where they stand and where we stand and how that would affect ongoing relationships. As part of that, t­ here are ­people who w ­ e’re no longer connected to, including actually mainly members of my f­ amily who have been quite clear on where they stand. So we wanted every­ body to be aware of that and it’s been g­ reat. We actually got a huge amount of support. Th ­ ere ­were some indirect questions but that was definitely in the minority.

­Because of the ­legal uncertainties, Peter and Ben’s clinic moved the booking for the birth from one hospital to another, contrary to their contract. Then the booking was changed back to the original hospital, but Peter and Ben ­were asked not to mention the surrogacy when they visited the hospital, and Peter described the somewhat comic confusion of staff trying to work out whom to call “­daddy” and how, despite the obvious fact that he and Ben w ­ ere a c­ ouple, nothing was said about that, and the public appearance of heteronormativity was maintained. Peter and Ben went on a holiday before the birth and ­were in Paris when they got a message from the clinic that the birth would take place. They flew back to Bangkok to be pres­ent for the caesarean birth. I asked Peter how he felt about not being able to witness the birth:



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I ­would’ve ­really loved that actually. We w ­ ere sitting outside [the theater]. We actually just missed her [the surrogate] ­going in and we d­ idn’t see her before she just went in. It’s amazing how long it takes to travel small distances in Bangkok, so we got ­there just as ­she’d gone through. So it ­would’ve been ­great to be in, but again, we ­weren’t ­really sure exactly how she was feeling. Whenever we ask the question of “How are you feeling? Is t­ here anything you want to talk about or say?,” we w ­ ere ­doing that through the translator, again we’d just be told, “Yes, it’s good. Yes, it’s fine,” and “She understands the relationship and t­ hey’re not her c­ hildren and s­ he’ll give them up and that’s fine.” The h­ uman side of that, you can never r­ eally believe fully that someone is totally fine with that. And so in seeing her just the week of the birth, she actually grabbed my hand at one point and put it on her stomach, saying, “Feel the baby moving.” I would not have dreamed of her thinking I had the right to touch her and see how the baby is ­going. So that was nice, I ­really appreciated that. But the bit g­ oing into the birth, obviously that ­would’ve been a step too far with every­body and it ­wouldn’t have worked with the hospital, the way they ­were ­handling it.

­ ere we see that Peter was quite sensitive to the surrogate’s feelings, as it was she H who initiated and allowed him to touch her pregnant torso to feel the child moving within. He openly admits the emotional impact of surrogacy for the surrogate and the “­human side,” as well as the impossibility for him to fully comprehend how she might be feeling. Like other intended parents, he spoke with relief of the moment when the relationship with the surrogate transcended the commercial relationship, moments when he was reassured by her positive attitude and ac­cep­tance of them as parents. Throughout the interview, Peter emphasized his care and empathy for the surrogate’s experience, and his concern that she was well treated. To have met and had a relationship with the surrogate, however limited, was impor­tant to him and his partner: “Every­one we spoke to in Thailand who went down the path of wanting a relationship with their surrogate got it and had a ­really good outcome from it. Outcomes meaning not just having a baby, but a good relationship and they know that she was cared for. And every­one we spoke to in Thailand who ­didn’t go down that path say they wish they had. So that was ­really ­great. In any kind of surrogacy arrangement, having a relationship with the surrogate is ­really impor­tant, b­ ecause along the way you just need to know ­they’re okay.” The moment of leaving the hospital and taking their babies home was one of some confusion as hospital staff had not been informed about the surrogacy: “We got downstairs to the taxi area and they tried to put [her, the surrogate] and the babies in one car together, but they ­were ­going to dif­fer­ent places. That’s when it got ­really difficult, she came over and said goodbye to the babies, and she went to the car and was crying. The staff w ­ ere standing t­ here thinking, what’s g­ oing on ­here? But it was difficult for them and for the boys’ mum as well.”

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­Because of the concerns over the closure of the clinic, unknown to Peter and Ben the surrogacy agency changed its bank details and ­there was some confusion ­after they made their final payment to the wrong account number. This had to get sorted out, which caused a further delay before they could leave Thailand with their ­children. They estimated that their total costs, including their airfares for three trips to Thailand, ­were around AU$130,000 (US$100,000). Their surrogate and her f­ amily had the opportunity to spend some time with the babies during the six weeks before they left for Australia, and during that period she expressed breast milk for them. Since their return, social media have allowed them to maintain some contact with their surrogate, and Peter and Ben have emailed photo­graphs to her; but Peter stated that they have tried to be sensitive to what she might be feeling, so they did not immediately send lots of photo­ graphs. “We just thought we need to give her a bit of time. Not being in our country, we d­ on’t know how she’s feeling. We d­ idn’t want to sort of say, ‘Hi, w ­ e’re back in Australia,’ and start bombarding her with photos when she’s ­going into a pro­cess of trying to separate herself.” The birth of the twins also heralded a ­whole lifestyle change for the ­couple involving another change of location to a rural area back in NSW in Australia: “We sort of threw life up in the air and just before we left to go overseas, we went and had a holiday for three months before the ­children ­were born, and just before that happened we said, ‘Look, let’s sell our h­ ouse . . . ​and let’s buy a farm.’ So we did that and settled that while we ­were overseas. So ­we’ve actually moved back to a ­whole new life with twins away from our friends and f­ amily. It’s been in­ter­est­ing. But ­we’ve stayed fairly sane and it’s been good. The boys have been ­great.” Peter and Ben reported that since moving to a rural area, they have received lots of support within their new community, with some older ­women offering themselves as “honorary grand­mothers.” They have also maintained links with Facebook groups. The local health ser­vice has even linked them up to another gay ­family in a nearby town who have ­children born through surrogacy in India: It’s been overwhelmingly positive actually. We’ve come into a rural community back ­here and it’s been amazing. P ­ eople stop us on the street, want to talk to us and ­people are welcoming us ­here as if ­they’re welcoming anybody ­else. I think just around twins, ­there is this ­bubble of love that happens. Shopping is a very slow experience. Every­one wants to look at the babies. ­People of all ages and background are stopping us and saying, “It’s fantastic what ­you’re d­ oing. G ­ reat, g­ reat.” And I think ­those sort of comments is related to us being a gay c­ ouple with twins. I think ­people are actually making a comment on that.

But this somewhat idyllic depiction of a “­bubble of love” surrounding the twins did not reflect the conflict within Peter’s ­family over the surrogacy. At the same time that the creation of social kinship relations, “kinning,” was taking place within



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their new rural location, a few members of Peter’s f­ amily ­were having difficulties accepting his decision to undertake a surrogacy. His ­sister, in par­tic­u­lar, had articulated her strong disapproval, resulting in a rift in relationships within his ­family: And she started saying to the kids [his niece and nephew] that we w ­ ere picking up some w ­ oman out of a slum and that we w ­ ere ­going to throw her back t­ here in the end. ­There was definitely an agenda ­there, that we ­were exploiting ­women by ­doing this. And my u­ ncle r­ eally strangely called my mum one time and just went off his head at her about it. Had no contact with us about it. So that was strange. So they ­were the two experiences that we had ­there. My ­sister has sent quite vitriolic texts and emails to us and my mum saying t­ hings like, “­Those poor motherless creatures, how dare you do this to c­ hildren, bringing them into the world without a ­mother.”

Although he is sad that their relationship with his s­ ister is estranged, he hopes that eventually the cousins w ­ ill have a chance to meet. The accusations leveled at Peter, of exploiting w ­ omen and denying c­ hildren a m ­ other, point again to gendered politics gay c­ ouples face undertaking surrogacy. They point to conservative anx­i­eties about the gender roles of men and w ­ omen and the perceived rejection/subordination of ­women by gay men as well as disquiet with nonnormative ­family structures. Her comments may also have been influenced by ongoing social concerns in Australia about the effects of the separation of c­ hildren from their families, witnessed in the past policies of removal of indigenous ­children from their parents and forced adoptions, as I ­will discuss further in chapter 7. They point to the deep emotions perceived threats to heteronormative norms evoke for some ­people. Peter’s narrative exhibits a number of characteristics that in turn refute such accusations. His narrative begins with an assurance of his desire for ­children and need for surrogacy, and a repre­sen­ta­tion of the c­ ouple as caring and careful in their choices. He describes how, as intending parents, they prepared for and thought very carefully about their decisions and the implications of their choices. This assertion of the care involved is maintained throughout the discussion of the surrogate, their desire to establish a relationship with her and the egg donor, and their negotiations with taciturn doctors and poor communication with the agency. He contrasts their desire to have a relationship with their surrogate with “other” ­couples undertaking surrogacy in India and Thailand who did not insist upon getting to know their surrogate and egg donor. Yet this desire for a caring and respectful relationship with their surrogate at times conflicted with the systems and organ­ization of the agency and clinic in Thailand, so Peter and Ben needed to make special efforts to assert and develop a relationship. The crises of the initial failed cycles and the raids and closures of Thai clinics are resolved in the narrative through patience and per­sis­tence. Fi­nally, with the successful birth and

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bringing home of the babies, a “new life” and lifestyle is forged, representing Peter and Ben’s new identity as parents, in their case involving a radical departure from the old. Throughout, the prob­lems they encountered along the way are minimized, even normalized by Peter, although we gain a glimpse into what must have been highly stressful circumstances. Th ­ ese crises stand in contrast with the idyllic depiction of life in a new rural community where community members compliment them on their efforts to form a ­family, in stark contrast to the tensions within Peter’s biological ­family, with whom relationships have broken down.

Elise and John Elise, aged forty-­two, and her husband John, aged forty-­four, are from Adelaide, South Australia. I spoke to Elise at her Bangkok apartment where they w ­ ere caring for a new baby born through a Thai surrogacy arrangement, waiting for the documentation to be finalized before they could legally take her home with them. The ­couple had another d­ aughter conceived through surrogacy in Thailand and had engaged the same ser­v ice agency and clinic for this pregnancy. Elise and John had a difficult reproductive history; her husband had a low sperm count, and Elise had a long period involving six cycles of IVF, gynecological surgeries, an ec­topic pregnancy, several miscarriages, and failed IVF attempts before it was discovered that she had tubal blockages, endometriosis, and adenomyosis, which had damaged her uterine lining: “It was explained to me that even if it does implant it [my womb] ­will never stretch beyond nine weeks to accommodate a ­viable pregnancy. So your journey’s over.” They investigated adoption but discovered that they would be too old to adopt as, by that stage, she was aged in her late thirties and her husband was already in his forties. Her ­mother suggested surrogacy and in fact herself offered to act as a surrogate, although by that stage she was sixty-­four years old, so not a candidate. Elise and John investigated the option of altruistic surrogacy in South Australia, but a ­sister, sister-­in-­law, and two friends who volunteered as surrogates ­were all ruled out as possibilities for medical reasons. At that time, Elise was unaware of any other possibilities for altruistic surrogacy in Australia. Her ­mother continued to investigate options and learned of the surrogacy industry in Thailand. A ­ fter summoning the courage to contact the clinic, Elise investigated further: “So I said: ‘I think we just have to get on a plane and go over ­there and check this out’ and we jumped on a plane in 2012 and we came over and we saw the clinic and ­were blown away with the professionalism of the doctors, the clinic, the nurses, the facilities, thinking that in some ways it’s a lot better than what we have in Australia.” The facilitator arranged for a surrogate who had previously successfully undertaken a surrogate pregnancy. Using Elise’s ova, the ­couple w ­ ere fortunate to have their surrogate fall pregnant on the first “fresh” cycle, referring to an IVF cycle in which newly retrieved ova rather than frozen ova are used to produce the embryo: “[I] went in and held my sur-



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rogate’s hand when the transfer happened. So that was a very special moment for us.” News of the successful pregnancy came via email: “I think you jump up and down and think, oh my God this is amazing, but at the same time t­ here is so much fear. When ­you’ve already had fertility issues, and all you ever think about pregnancy is failure. Like you cannot ever work out how p­ eople actually get pregnant, ­because yours is always t­ here with failure and tragedy and operations to clear it up and infection. That’s all you ever think.” As the pregnancy progressed Elise and her husband ­were kept informed via emails that included scans and photo­graphs of the surrogate. Elise described it as “surreal” and spoke of the trust involved: It’s hard to explain, b­ ecause it was a very surreal feeling, and b­ ecause it’s definitely an out-­of-­body experience, y­ ou’re sort of looking at ­those scans thinking, “Is it ­really my baby? Is it r­ eally happening? Is this just a scan they send to every­one that’s ­going through ­there?” It’s so many emotions that you ­can’t explain. I always say it was surreal, but it’s your hope and it’s your craving and it’s your trust. That trust that someone ­else is taking care, and is that actually g­ oing to happen? But I suppose you also have ­those doubts in your mind as well that, “­Will they keep the baby? ­Will you get the baby? Are you g­ oing to be held for ransom once you get ­there?” Like when you hear the horror stories and y­ ou’re thinking, oh I’m taking a big leap of faith h­ ere. It was our only door that was left open. Like it was the last time that we could ever—­there’s nothing ­else.

Throughout the pregnancy they had no contact with their surrogate except via the clinic. Elise explained that “our surrogate ­didn’t speak a word of En­glish” so they could not communicate directly. All went well, however, and their first ­daughter was born in January 2013. The ­couple came over to Thailand two weeks early and went on a diving holiday before the scheduled caesarean at thirty-­eight weeks’ gestation. Elise was not allowed to be pres­ent at the birth, although her husband was (as the l­ egal ­father). Her husband held the surrogate’s hand during the birth: “Apparently, they squeezed hands lots during it, and ­there w ­ ere tears and that and when the baby was born obviously very briefly cleaned up and came out to me . . . ​we ­were allowed to take a few happy snaps and not allowed to touch yet. . . . ​They ­don’t let you hold the baby. . . . ​As an IP [intending parent] it’s just another t­ hing you have to give up and just think. ‘Wow, how lucky am I that I can still have a baby.’ ” ­After four days in hospital during which time they learned to feed and bath the baby, Elise and John ­were discharged with her. Their surrogate continued to supply breast milk for them, which she brought to their apartment e­ very second or third day: “We did ask w ­ hether she could see or hold the baby and it’s policy that they ­don’t but I also asked through a translator ­whether she wished to do so, ­because some surrogates want to and some surrogates d­ on’t want to, and I d­ idn’t

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want to be disrespectful and just bring the baby in, and she said she d­ idn’t want to see or hold the baby while she was in hospital but when she came to deliver breast milk ­she’d r­ eally like to see the baby then when she felt better in herself to hold the baby.” In this statement, we see the acute sensitivities involved in negotiating the emotions aroused by the exchange. Unlike the experience described by Peter, in this case the protocols used by the surrogacy agency and hospital staff maintained bound­aries to distance the surrogate from the baby to whom she has just given birth. In effect, it is not the surrogate but the hospital who hands over the child to the ­couple. The hospital is the intermediary—­the surrogate gives birth to the child, who is handed over to the nursery, and then eventually the hospital gives the child to the IPs. It was clear throughout the interview that Elise and her husband tried to initiate a relationship with their surrogate, but in many ways their attempts w ­ ere limited by the protocols put in place by the agency, clinic, and hospital, often in ways that felt disconcerting to the ­couple. Since the birth of their first d­ aughter, Elise and John have stayed in contact with their first surrogate via Facebook, and while they ­were in Bangkok she visited them to meet the ­daughter she gestated for them. Elise commented on her feelings ­toward the surrogate ­mother of her first ­daughter and the means through which they have managed to maintain contact with her: “It’s ­really hard to explain in words, but it’s a feeling of absolute love and gratitude [­toward her surrogate] that no money and no words could ever describe. It’s just amazing and I mean ­every time she [the surrogate] sees her [the ­daughter] she gets tears in her eyes and sees our ­little girl growing up. I set it up on Facebook. So we talk to each other by private message and she translates. Obviously she types in Thai and translates it to En­glish, and then I type in En­glish and translate to Thai.” Elise reported that their relationship with this surrogate was in stark contrast with her surrogate’s experience with another ­couple: “Well, her first surrogacy the ­people ­didn’t want to see her anymore. They d­ idn’t even visit her in hospital, so she’s ­really delighted that we still want to see her.” Following the birth of their first ­daughter, Elise and John contacted the Australian embassy to start the procedures required for her citizenship and passport applications. Elise described how she “muddled through the pro­cess” with the “118” (passport application) forms as “back then I d­ on’t think they had had too many Australians before and we d­ idn’t know anyone who had been through it in Thailand before.” Unlike Peter and Ben, they had no l­ egal advice. At the time of their first surrogacy arrangement, unlike the pro­cess in place in 2014, their surrogate did not sign over parental responsibility, so technically John and Elise never legally a­ dopted the child in Thailand; nor have they applied for a parenting order. But this does not concern Elise: We do have DNA and if you draw up w ­ ills and dif­fer­ent t­ hings I think t­ here’s always ­going to be ­legal loopholes to every­thing. The fact is my surrogate d­ oesn’t want



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my d­ aughter. She’s very happy that she has created a f­ amily and she’s very happy that she still gets to see pictures of my ­daughter and that when we come over ­here that we catch up with her. . . . ​However, in a ­legal sense, yes, ­there is the fact that I’m not on the birth certificate, and so how legally am I her ­mother? . . . ​Look, in the big scheme of t­ hings, it [the birth certificate] is a bit of paper, and another is a person who nurtures and nourishes and loves and brings up the child.

­After the birth of their first ­daughter, Elise and her husband wished to have a second child, but t­ hings did not go as smoothly. The surrogacy agency supplied a surrogate, but their first attempt failed and they needed to find another surrogate; meanwhile, their original counselor had moved to another agency. A ­ fter a failure with the second surrogate, they ­were placed with a third. In all, they tried another four cycles, some fresh and some frozen, but all failed. A final cycle taken in January 2014 was successful. Elise explained, “We get three attempts in one package [within a fixed price] but I ­didn’t have any eggs left over to do another.” Her description of the “package deal” refers to the fact that, at that time in Thailand, it was common practice for clinics to have a group of surrogates who ­were in preparation for ­either fresh or frozen cycles and, depending on the timing, a surrogate who was on the drug regime for a frozen cycle could be diverted to a fresh cycle to fit in with a c­ ouple’s timing. C ­ ouples could not specify whom they wanted as a surrogate; however, Elise described some characteristics that could be selected, specifically uterine characteristics: So we did ask for a young surrogate. Not a ridiculously young one but in prime child-­birthing years. We did ask for a positive blood group and we did ask that if a surrogate had completed her ­family that the child had been born in the last one to two years b­ ecause the uterus lining is at optimum. Some ­people ask for the ­triple lining. . . . ​Some ­women that are highly fertile instead of producing just an eight to ten millimeter [endometrial lining] w ­ ill produce what’s called a t­ riple lining, which means that pretty well no m ­ atter what sort of embryo it w ­ ill take. . . . ​Some ­people get ridicu­lous with their demands on what they want, but we just wanted someone that had a healthy uterus lining, and that had had a baby reasonably recently. I know that sounds awful, but they reckon that your optimum time is about twelve months ­after a baby is born to get pregnant again. So we asked if they had any surrogates that had completed their f­ amily around then.

In this description, the value of surrogates is reduced to their age and endometrial quality, or “the ­triple lining.” In her statement, “I know that sounds awful,” Elise herself reveals her awareness of the objectification such pragmatic descriptions involve, and she repeatedly tried to c­ ounter this by asserting her recognition of the surrogate as a young ­woman providing a “gift” to them.

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At each failed attempt, they received ­little support from the agency in Thailand: “You c­ an’t expect p­ eople on the other side of the world whose second language is En­glish to provide support for failed attempts. You just ­can’t expect it. You’d be ridicu­lous to think they could offer some comfort via email or a Skype talk or anything.” Elise and John had mentally prepared themselves to attempt six times, the same number of IVF cycles they had previously attempted in Australia. Elise felt that her previous experience with IVF put her in a good position to make decisions about the pro­cess: “It ­didn’t feel like I was out of my depth making ­those decisions for myself and for our surrogate and also ethically.” She contrasted her experience with that of ­others who had not been through IVF, or of gay men who had no experience of pregnancy. Like Peter and Ben, Elise and her partner ­were another Australian ­couple engaged in the surrogacy pro­cess in Thailand when the military coup and ­later crackdown on surrogacy occurred. Their second surrogate pregnancy was at twenty-­two weeks’ gestation when the clinics w ­ ere closed and surrogacy banned: Well, the coup happened and then on the 22nd of July that was when the crackdown happened, and that’s when ­they’d gone through the clinics and pretty well said that surrogacy is now illegal. Commercial surrogacy is outlawed, gone, finished. So I suppose that’s when the [online] forums did become a ­little bit impor­tant, and sitting and listening to what was ­going on and I suppose it was quite frightening, ­because it said that it was outlawed. That you are now g­ oing to be jailed. . . . ​[noise interruption] It said commercial surrogacy was outlawed and that we w ­ ere g­ oing to jail. That was the first bit. That the surrogates would go to jail. We would go to jail. We ­wouldn’t be allowed to take the babies out. ­They’d be put in orphanages. Then ­there was the ­going through the court system. . . . ​Look, for about six weeks it was m ­ ental and I think the anxiety levels for anybody that was in the pro­cess was up ­here [indicates top of her head], and I think we prob­ ably ­were a ­little luckier in the fact that we w ­ ere over halfway in the pregnancy. If I had got my positive pregnancy test result on the 22nd like some ­people did or was ­doing a transfer on the 22nd, I tell you what, I would have been beside myself, particularly if it failed b­ ecause you would then think t­ here was something untoward happening, b­ ecause t­here was then the rumors that the surrogates w ­ eren’t ­going to be taken care of. The hospitals w ­ ere turning them away. That ­people ­were abandoning ship. The clinics w ­ ere closed. The horror stories you heard and you ­were living a nightmare.

Following the raids on July 22, Elise and John received no further word from their doctor or clinic, but continued to receive scans. The hospital they w ­ ere booked into for the caesarean refused to accept their surrogate, so like Peter and Ben, they had to change hospitals. Eventually they ­were able to track down their surrogate



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on Facebook, so they w ­ ere able to communicate directly with her to ensure that she and the pregnancy ­were all right. During the birth of their second d­ aughter, neither Elise nor her husband was allowed to accompany the surrogate and witness the birth. The next day they got to hold their second d­ aughter for the first time. This time, their surrogate did not produce breast milk, so their infant ­daughter was fed formula. Although she ­doesn’t feel they have as close a relationship with the surrogate of her second d­ aughter, Elise returned in the interview to emphasize the warm relationship they had with their first surrogate, emphasizing that surrogate’s satisfaction with her role: Well, my surrogate ­can’t speak highly enough of the experience that ­we’ve given her, and I mean I’m lucky that I’ve got that knowledge b­ ecause not many p­ eople have that knowledge, but ­because ­we’re in contact with our surrogate I do have that knowledge that she genuinely thinks that what she’s done is ­going to help her in this life ­because she’s given back to humanity and she’s also created a beautiful ­family, and she’s so happy to have done all that. She just gives a sense of overwhelming joy. Like she’s just beautiful, and I mean she said she w ­ asn’t just ­doing it for the money, ­because when she was pregnant with my ­daughter she knitted for us and she’s given my ­daughter all sorts of l­ ittle keepsakes.

Elise and her husband have been very open with f­ amily and friends about their surrogacies, maintaining a Facebook page detailing their news as their ­daughters grow, and they intend to tell both c­ hildren as they grow up about all the details of their origins: “And ­we’ve been very proud of our story. So ­we’re hoping that as they grow up with us being so proud of the way that they ­were created, that it’s just ­going to be a normal ac­cep­tance.”

The ­Human ­Factor The three narratives presented in this chapter reflect how ­these ­couples perceived their interactions with the surrogacy industry as it existed at the time in Thailand. In their quest to form a ­family, each ­couple had to negotiate the protocols of agencies, clinics, hospitals, and l­egal structures, and each experienced varying levels of power and agency in effectively d­ oing so. Some ­were able to assert their desire to meet and get to know their surrogates and ova donors, contact their surrogates in­de­pen­dently, and demand further information from the clinic. Elise’s narrative, like Peter’s, centers herself in the arrangement, negotiating the contracts, maintaining contact, and overcoming adversity to form her f­amily. Her history of repeated IVF attempts and the lack of suitable local candidates for surrogacy foreground her rationale for arranging surrogacy in Thailand. From this tragic start,

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her story involves vari­ous t­ rials and tribulations, failed cycles, and the crisis of the clinic closures during their second surrogacy. But, ultimately, her narrative is one of triumph in forming a much-­desired f­ amily. In their own ways, all three in­for­ mants articulate the ethical values they brought to their decisions, and their awareness of the criticism that ­others might make against them. The ­couples differed in their concern over ­legal issues. Elise chose not to contract a ­lawyer and has no plans to apply for parenting ­orders. Peter and Ben ­were very careful, moving interstate so as not to be in breach of the state laws and obtaining l­ egal advice for contract writing, and they w ­ ere planning on seeking parental ­orders in the near ­future. Joseph and Dan also had ­legal repre­sen­ta­tion but ­were not applying for parental o­ rders; yet they w ­ ere involved in negotiating for better parental leave arrangements at their workplace. As other studies of Australian surrogacy have noted (Millbank 2011), few intending parents take on the extra l­ egal expense involved in applying for parenting ­orders—an issue I consider in greater detail in chapter 4. ­There are also differences in the c­ ouples’ “kinning” surrounding their surrogacies. They differ in the extent to which they have attempted to incorporate the surrogates into their definition of f­amily. Joseph and Dan had no ongoing relationship with the ova donors or surrogates but described the positive ac­cep­tance of their c­ hildren by members of their social circle and on social media, and their determination that neither their being gay nor the means of conception of their ­children should define social perceptions of their f­ amily or affect the social ac­cep­ tance of their ­children. Elise is determined to maintain a close relationship with her first ­daughter’s surrogate, and she regrets that this w ­ ill not be pos­si­ble with the second one given the ­legal situation in Thailand. In Peter and Ben’s case, again ­there is an attempt to continue relationships with the ova donor and surrogates, but at the same time Peter and Ben’s use of surrogacy to form their f­ amily has caused a f­ amily rift that has disrupted Peter’s relationship with his ­sister’s ­family, particularly with his niece and nephew. Elise describes her surrogates in biological terms but also uses the language of “beauty” and surrogacy as a “gift” and “joy” to describe the relationship between herself and her surrogates. She also emphasizes her first surrogate’s gratitude to them as intending parents for giving her the opportunity to help them form a ­family and the opportunity to remain in contact. Peter is more muted in his description of their surrogate, as he sees her role as central only throughout the gestation. And for Joseph, the limited relationship he and his partner had with their surrogates means they are barely pres­ent in the narrative, although the care he expresses concerning how to thank them with gifts and his relief when a moment of h­ uman connection is made betray a level of discomfort with the anonymity of their roles. ­These narratives also conform to what Smietana (2017) describes as the moral frames used within surrogacy communities to describe the practice: an affective narrative of gift giving and relatedness, and an economic narrative of agency and



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equality on the part of the relationships with surrogates. As he notes, intended parents become socialized into such cultural narratives of surrogacy through advocacy organ­izations like Surrogacy Australia and Families through Surrogacy. The narratives of gift giving and economic agency are not in opposition, but constitute the surrogacy relationship, disambiguating kinship relations between intended parents and surrogates and donor providers (Thompson 2005). As Smietana (2017) suggests, the contractual and financial aspects of commercial surrogacy negated surrogates’ potential parenthood claims, yet this did not exclude affective relationships where surrogates could take up roles other than as parents. Even though Peter and Ben wanted a “clearer” contractual arrangement to avoid the emotional obligations and complications of a relationship with the ova donor or surrogate, they still appreciated the brief connection made with the surrogate ­mother. Elise subscribed more to the “gifting” discourse and attempted to maintain distant relations with her surrogates, but we also find constant assertions of the status of the ­couples as the rightful, committed parents, regardless of the means of conception. ­These interviews tell us much about the organ­ization of surrogacy in Thailand at the time, with agents carefully placing themselves as gatekeepers to the ova donors and surrogates, attempting to limit contact, and being the intermediary for scans and medical information, so much so that when Elise’s agency closed due to the clinic raids, she lost contact with her second surrogate as she had no phone number or other way to contact her. We also see in Peter’s account the pressure placed upon intending parents when faced with failed cycles to increase their intervention, in his case agreeing to transfer two embryos into two surrogates, despite the risk of a multiple birth. Such parallel pregnancies using two surrogates are a common feature of the model of surrogacy that continues to operate in other Asian countries. Given that the ova donors and w ­ omen used as surrogates are usually relatively young and fertile, such parallel surrogacy practices run a high risk of producing large families for intending parents. All three ­couples experienced difficulties in communicating across the linguistic and cultural bound­aries. In Peter’s and Joseph’s cases, their communication was mediated by someone from the agency, signaling again their de­pen­dency upon the agent and their inability to in­de­pen­dently communicate with their surrogate. In Elise’s case, her and John’s need to make contact with their surrogate required them to have an in­de­pen­dent interpreter, allowing them to communicate more clearly with the surrogate. Fi­nally, despite the dif­fer­ent financial circumstances of ­these three c­ ouples, t­ hese case studies give an idea of the enormous financial commitment their surrogacies involved, in addition to the significant emotional costs. For the most part, the accounts from ­these intending parents of their experience undertaking an international surrogacy arrangement in Thailand differ markedly from the shared, intimate, affective relationships reported in depictions of

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Israeli surrogacy by writers such as Elly Teman (2010). Rather, all intended parents with whom I spoke tended to adopt a pragmatic view to make the best of what was available to them, which often fell short of their desire to have closer relationships with their surrogates or more involvement in the pregnancy. Some chose international surrogacy precisely for the distance and distancing it involved—­they wished to parent their f­ uture child without complicated relationships, and approached the pregnancy much as they would a logistics proj­ect. For example, one parent, Brett, who had four ­children through three surrogates from the United States, explic­itly described how it was “­really impor­tant to proj­ect manage the entire pregnancy yourself ” and to have a calendar with actions and dates on it. He spoke of the need for a facilitator who is an “active case man­ag­er” and how you could “pick up the phone straightaway and call them.” Yet most of the intended parents still wished for some connection with their surrogates, no ­matter how minimal, and did care about the ­women involved and their experience. Common practice within the Thai surrogacy industry, however, made such connections difficult, with clinic staff and facilitators often ignoring or seeking to minimize the affective “­human f­actor” inevitable in t­ hese relationships. The ­legal uncertainties in Thailand contributed to this distancing and minimizing. Clinics had an interest in not allowing surrogates and parents to be in contact, as the more distant the relationship, the easier it was for clinics to deny knowledge of the circumstances surrounding the surrogacy and any payment of money. Clinics could claim to be simply treating their patients and transferring embryos, and not necessarily involved in any commercial arrangement—­a preferable stance given the Thai Medical Council regulations banning commercial surrogacy. As one Thai infertility specialist declared to me at a medical conference when asked about commercial transactions in surrogacy and ova donation, “We are not police, we cannot track that [­whether ­there has been payment to the surrogates], I cannot check that [the consent pro­cess]. I leave that [the surrogacy arrangement] to the agent.” In addition, ­were surrogates and intending parents to be in direct contact, the role of the agency could be made redundant. Yet this distance was also often to the surrogate ­mother’s disadvantage. Th ­ ere is evidence of some unscrupulous agencies setting up accounts in surrogates’ names that w ­ ere in fact holding accounts used by the agencies, from which monthly fees w ­ ere deducted to the surrogates— an arrangement that may have given the illusion of surrogates being provided with “compensation” rather than a fee for ser­vice. However, any additional payments by intended parents for the surrogate ­were not necessarily received by the surrogate. The vulnerability and de­pen­dency of surrogates in ­these arrangements ­were clearly illustrated in the period of clinic closures in Thailand and Cambodia, during which time some agents stopped all communication and surrogates ­were left worrying over ­whether they would be paid and uncertain about their care.



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When ­Things Go Wrong The three cases presented h­ ere are of successful surrogacies: despite initial failed cycles and the chaos of clinic closures, t­ hese c­ ouples all ended up with a f­ amily to nurture. But not all surrogacy attempts result in live births. Stories of failed attempts lurk in the background of the celebratory pictures of healthy ­children, cute multiples, and happy parents promoted on websites. Apart from experiences of reproductive loss and neonatal death, intended parents I met also described experiencing fraudulent practices from some agents, difficulties transferring embryos between countries or clinics, delays with DNA tests and paperwork, and fear and uncertainty during the vari­ous po­liti­cal and natu­ral disasters that beset the industry across this period—­the closures in India and Thailand, the earthquake in Nepal, and l­ ater the closure of surrogacy in Cambodia. The crises experienced by ­these intended parents not only ­were symptomatic of the nature of the medical procedures themselves and the uncertainties associated with IVF and pregnancy, but also w ­ ere very much associated with the organ­ization of the international commercial surrogacy industry in Southeast Asia at the time. The lack of regulations, the cross-­border nature, the language differences, the multinational nature of some agencies and their rapid relocations, and the uncertain ­legal frameworks all exacerbated the difficulties facing intending parents. Jim and his partner Ian described their experience in Thailand with multiple miscarriages. Their agency ended up swapping surrogates multiple times. Jim stated that ­after spending AU$43,000 (approximately US$32,000) they ended up with nothing. The news of pregnancy loss was conveyed via email: “We had so many transfers, and it went on and on and on . . . ​just one transfer ­after another, and it w ­ asn’t working, and we fi­nally got pregnant . . . ​and we ­were pregnant with twins and it was like pulling teeth out of our agency . . . ​a relief to get the medical reports, the scans . . . ​and at nineteen weeks we d­ idn’t get our scan. We sent an email and said, ‘What happened?’ and ten minutes they wrote back and said, ‘Oh, your surrogate had a miscarriage’ and we lost our twins at nineteen weeks. That’s how we found out about it.”1 In such cases, ­couples often found themselves with no support from their agency, despite the trauma and grief they experienced from such losses. Similarly, the experience for the surrogates when such losses occurred was rarely spoken about. For instance, intended parents ­were often unsure about the level of payment their surrogate received following a reproductive loss, or what emotional support she was offered. Many ­couples seeking surrogacy had already experienced devastating histories of failed IVF and reproductive loss, so the losses in surrogacy attempts compounded their grief. For example, Reg and Louise ­were married in 1987 and a year ­later began IVF treatment, undertaking fourteen treatment cycles between 1990 and 2000, ending with a hysterectomy ­because of a benign tumor detected in Louise. At thirty-­eight and forty years of age, respectively, Reg and Louise ­were

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no longer considered candidates for adoption and so made their first attempt to fall pregnant through surrogacy in the United States in 2002. They undertook three cycles and changed surrogates and the egg donor, eventually losing a twin pregnancy, with one twin d­ ying at twelve weeks and the other at sixteen weeks. In all, they went through five cycles, trying six egg donors and four surrogates ­until, in 2006, they achieved a pregnancy about which Louise said she was too scared to hope for a live birth: “[I was thinking] ­until I have a child in my hands I ­won’t believe it is pos­si­ble.” Fortunately this pregnancy was successful and their ­daughter was born in the United States: “Every­thing went like clockwork.” They deci­ded to try again—­“we sold every­thing,” Louise explained—­and, following another five attempts in the United States and two in Australia, again their surrogates miscarried pregnancies at twelve weeks and sixteen weeks. In 2012, they deci­ded to stop, thankful to have their marriage intact and their ­daughter. “We gave it a good shot,” Louise told me. As parents note, such complications are not unique to international surrogacy attempts, which carry all the uncertainties of IVF procedures anywhere, while practices such as multiple embryo transfers that w ­ ere common in India and Nepal, and even in some US clinics, also increased the health risks to surrogate ­mothers and the pregnancy. What made the international surrogacy attempts especially difficult for intended parents was the lack of local support for them following such losses. This was particularly the case if they had been keeping their surrogacy attempt a secret. Chatrooms often provided an impor­tant source of solace and support in ­these circumstances. In addition, apart from the stress of failed attempts and pregnancy losses, many ­couples described other difficulties exacerbated by the international nature of their surrogacy: poor communication, unexpected increases in the cost of their surrogacy beyond what had been initially quoted, currency movements, and the closures of surrogacy options ­because of legislative changes, first in India, Thailand, and Nepal, and most recently in Cambodia. Andrew, from South Australia, was interviewed via Skype in Thailand with his eight-­week-­old ­daughter. He and his partner Paul had commenced their involvement in surrogacy two years earlier and had had three unsuccessful attempts, including a miscarriage at six weeks, with three egg donors (of En­glish and Dutch origin), and then deci­ded to move agencies. Their final attempt involved the transfer of two embryos into two surrogates and “they got a bit anxious” that if all embryos transferred successfully they would have a large ­family. Ultimately they ended up with only one child. They intended to try for a second pregnancy, hoping to use the same surrogate and an egg donor from Australia. For Andrew and his partner, the stress had been compounded by what they viewed as unprofessional practices by their first agent whom Andrew described as “basically a criminal,” and explained that ­others ­were “still chasing her legally.” Although affiliated with a Thai clinic, the first agent was not based in Thailand and they found the



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­ hole pro­cess disjointed and even questioned w w ­ hether the medi­cations used w ­ ere correct or perhaps fake. Andrew’s advice was to “get an agency that you know ­people who have gone through, ­don’t shop for price as you ­don’t get what you pay for.” He cited a ­mistake that had been made in one clinic with the wrong sperm being used, resulting in the birth of a baby who was not biologically related to the intended parents. He also criticized certain clinical practices ­adopted by a few doctors in Thailand at the time that he felt ­were not appropriate, such as transferring twins created with dif­fer­ent sperm donors into a single surrogate, multiple embryo transfers with resultant fetal reductions, and heavy stimulation of egg donors resulting in ovarian hyperstimulation syndrome.2 Such prob­lems w ­ ere symptomatic of the rapid and un­regu­la­ted growth in the industry in Thailand at the time. As I discuss in chapter 6, a series of controversies in Thailand, including a case involving the trafficking of Viet­nam­ese w ­ omen into Thailand for surrogacy, the Baby Gammy case, and a case of serial surrogacy for a Japa­nese businessman, all reveal the extent of poor and corrupt practices, lack of oversight, and criminality in some parts of the industry.

Intended Parent Advocacy ­ ere are over 200 ­people in the electric green auditorium of a city university, men Th and ­women holding hands, many look anxious and shy, many gay c­ ouples, a few young pregnant w ­ omen, some ­couples conspicuously cradling and fussing over their babies, well-­dressed facilitators smiling, a few academic researchers. This is a “Consumer conference” held by Surrogacy Australia, an “advocacy organ­ization.” “This is not a trade show,” the or­ga­nizer announces, “we are not satisfied with glib answers” but aim to provide consumers with information to make well-­informed choices. “We’d rather go to jail than see p­ eople go overseas ill-­informed!” During lunch, facilitators, law firms, stand at their stalls with “sample bags” of information and f­ ree pens to give away to potential clients, smiling and chatting with ­couples about options in Mexico and Nepal, California, India, and Thailand, arranging private consultations. Near some stands, c­ouples who have been former clients stand ready to give advice to potential intended parents, and some receive fees for such “referral.” I admire a t-­shirt worn by one parent, which displays photo­graphs of herself and her partner, her child, and the Indian surrogate—­she is proud of how her ­daughter came to be. The conference includes talks by Australian ­women surrogates who explain how it is pos­si­ble to arrange altruistic surrogacy in Australia. ­These ­women glow with the admiring attention of audience members: “They are like rock stars ­here,” one w ­ oman comments to me.

The vulnerability of intended parents and their need for information and education about surrogacy have led to a growth in the number of nonprofit support organ­izations. Most of the intended parents I interviewed ­were aware of or

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had attended an event or­ga­nized by Surrogacy Australia, which is a nonprofit, parent-­led advocacy and information organ­ization. Such advocacy and support groups for intended parents run by intended parents and surrogates have sprung up in a number of countries. Examples include Surrogacy UK, which was set up by surrogates; Gay Surrogacy UK; COTS (Childlessness Overcome through Surrogacy); Brilliant Beginnings (a nonprofit group started by a law firm in the United Kingdom); and Surrogacy Support Ireland. Although not primarily an organ­ization formed around surrogacy, RESOLVE is a US voluntary self-­help, support, and consumer advocacy group for ­people with infertility (Becker 2000). It has a long history of r­unning support groups, newsletters, clinical advisory groups, and telephone hotlines, and undertakes advocacy for legislative change. Surrogacy Australia grew from the personal tragedy of its founder, Sam Everingham, whose twin boys ­were prematurely born at twenty-­four weeks’ gestation in India in 2009. One baby was stillborn and the other passed away following seven weeks in newborn intensive care. Previously surrogacy information was primarily available through Gay Dads Australia, a Facebook and social network based primarily in Melbourne and well informed about surrogacy in the United States. However, by 2009, many Australians ­were undertaking surrogacy in India with ­little information about what to expect. Sam noted that in the early days in India, when clinics w ­ ere routinely transferring multiple embryos, too many families w ­ ere returning to Australia “with ashes basically of kids in urns,” and without support or counseling. For c­ ouples for whom a surrogacy pregnancy is their first pregnancy, or ­those with l­ittle experience of the pos­si­ble complications of high-­risk twin or multiple pregnancies, a miscarriage, premature birth, or neonatal death is a shocking and tragic outcome for their i­ magined f­ amily. As Sam noted, “I suppose we went into it with . . . ​­really bright-­eyed and ­really an open idea of it all working, and just realized that, you know, look at the statistics and realize that, you know, it prob­ably w ­ on’t happen first go, and it prob­ably w ­ on’t be successful even ­after a ­couple of times.” A ­ fter this tragic event, Sam and his partner underwent a second attempt in which multiple embryos ­were transferred into two separate surrogates. This resulted in a multiple pregnancy and they w ­ ere forced to make a traumatic decision to “reduce” the pregnancies. The two surrogates went on to deliver one healthy girl each in 2011. As a result of his personal experience, Sam became convinced of the need to educate intended parents about surrogacy and, in par­tic­u­lar, the risks to surrogates and babies of multiple pregnancies. In many ways he has been the public face of surrogacy in Australia—­a frequent media commentator, advocate, and researcher. He now convenes “best practice” conferences in Australia, the United States, and Eu­rope for ­people considering surrogacy through another organ­ization, Families through Surrogacy (FTS). He explained how Surrogacy Australia started in 2010:



The Best of Intentions 95

[Surrogacy Australia] grew very quickly from a garage operation to lots of p­ eople wanting to be involved. I invested money and registered an organ­ization, creating a website and a Facebook group and website sponsors even, that’s right. And we did a conference; we had our first conference in Melbourne in 2011. We just had our fifth conference this year. . . . ​We had a huge turnout of ­people unexpectedly come along to that [first conference] from around Australia. So that was a clear sign that t­ here was a need for information that no one e­ lse was providing in Australia. Initially, the focus of Surrogacy Australia was overseas surrogacy, and in par­ tic­ul­ ar India and the US. We ­were getting a lot of ­people knocking on doors ­every week from India wanting to get into the market h­ ere—­suppliers, I mean. So we ran that and then was a conference e­ very year and then I think I was finding that I was getting annoyed in that in other markets ­there ­were trade shows only, like fertility shows where a c­ ouple went for a walk around a huge exhibition hall with 120 dif­fer­ent exhibitors selling you eggs and sperm and what­ever you wanted, and it was all just sales focus, marketing focus. And I realized ­there ­wasn’t r­ eally anything much for consumers that was run by them for them in other markets. So ­because of that I deci­ded I would start d­ oing the same ­things we ­were d­ oing in Australia in the United Kingdom and the United States, so we did ­those same conferences t­ here just ­under a dif­fer­ent brand Families through Surrogacy. And that’s how that started. I started a separate organ­ization, also nonprofit, called Families through Surrogacy and also the brand has changed b­ ecause we ­were ­doing conferences not just in Australia. . . . ​So I fi­nally got someone ­else to take over that role of ­running Surrogacy Australia, and concentrated ­really just on the education events.

His description of the advent of Surrogacy Australia and FTS raises a number of points. First, it reveals how a global nonprofit organ­ization grew from the hard work of one individual and a website to become a large organ­ization operating in several countries. The internet and social media have facilitated this expansion by amplifying and disseminating the work of a single individual globally. The conferences FTS markets through ­these same media allow for face-­to-­face contact and ensure the consolidation of a cybercommunity of like-­minded individuals and ­couples. Sam’s story also suggests that ­there was a large dormant community of ­people interested in surrogacy who lacked adequate information, not just in Australia, but elsewhere as well, all ­eager for in­de­pen­dent information. Fi­nally, it also reveals the difficulties of educating the public. In ­running education events, particularly in states where facilitating commercial overseas surrogacy is illegal, Sam potentially could be in breach of such laws. The advocacy organ­izations for parents tread a fine line between education and promotion. Although the conferences focus on educating consumers about the dangers of international surrogacy, ­legal issues, pos­si­ble medical complications, and ethical issues, they also provide opportunities for surrogacy agencies to

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advertise directly and meet intended parents face-­to-­face in a con­ve­nient forum and supportive atmosphere. By implication, the fact that certain agencies are designated “silver” or “gold sponsors” suggests that they are reputable and to a degree endorsed by the organ­ization. B ­ ecause the group is dependent upon the support of industry sponsors, this undermines FTS’s goal of providing unbiased information and education to ­couples. Other tensions also emerge at ­these conferences. Some parents who have engaged in surrogacy in Australia might not approve of ­people who have done so overseas. Further, many infertile heterosexual ­couples are well versed in IVF procedures and have long histories of reproductive failures, so their anx­i­eties and concerns w ­ ill likely differ from t­ hose of a gay c­ ouple with no experience of IVF, the female reproductive system, or pregnancy. Likewise, economic status divides the audience between ­those who can afford to travel to the United States or Canada and ­those who cannot. Also, a variety of ­people, surrogates, regulators, facilitators, and academics attend the conferences, all with differing expectations. Medical professionals and regulators who attend may disagree vociferously with the commercial models of surrogacy promoted by clinic attendees selling their ser­v ices in Laos or Ukraine. Clinics have their own professional rivalries. And among surrogates, ­there can be personal disagreements over how surrogacy should be approached, and differences between surrogates who are married and unmarried. This diversity has made for some robust encounters at the conferences, as Sam noted: “We’ve had conferences, as you may have seen them, where ­either the presenters w ­ ill start arguing with each other over the benefits of their country or the analysts get heckled from the audience with awful questioners and, yeah, w ­ e’ve learnt that having good moderators and ­people on microphone duty who know what ­they’re d­ oing can help a bit in controlling that.” Over time, with the closure of surrogacy in many countries in Asia, ­there has been greater promotion and education of intended parents about the possibility of well-­regulated, national-­based, altruistic surrogacy in Australia to replace travel overseas, and greater advocacy for l­ egal changes in Australia to enhance provisions to allow more surrogacy to take place in Australia. As Sam observed, this has led to Surrogacy Australia concentrating upon local surrogacy, while FTS has focused on international surrogacy, organ­izing conferences and educational events in Australia, the United Kingdom, Ireland, and Scandinavia and previously the United States. He has also started to work as a paid con­sul­tant for ­couples seeking in­de­ pen­dent information. FTS has grown very quickly, now ­running events in several countries. Sam explained, “It’s such a global industry in that the needs are the same what­ever country you live in in terms of desire to have a f­amily, and even for Australians the cross-­border issues are very, very common. So b­ ecause so many of the providers we ­were dealing with in India and the US w ­ ere taking clients from all over the world, the model we w ­ ere providing of intending parents, r­ unning informa-



The Best of Intentions 97

tion events was fairly easy to translate to other environments, b­ ecause t­ hose sponsors, if you like, and experts w ­ ere already taking patients from t­ hose markets.” In this way, the advocacy organ­ization has taken on the flexible and mobile characteristics evident in the industry as a whole—­not bound by borders, it provides informational events and chances to socialize face-­to-­face for ­people wishing to form families through surrogacy in multiple countries. As the vari­ous controversies broke in India, Thailand, Nepal, and Cambodia (discussed in l­ ater chapters), Surrogacy Australia became an impor­tant source of support and information for intended parents caught up in the closures and bearing the brunt of media interest. At times this involved direct negotiations with Australian government departments to assist in negotiating solutions for intended parents impacted by the closures. Sam stated, “I’ve got to admit that my ac­cep­ tance of developing country surrogacy has lessened in recent years as I’ve seen more and more prob­lems with operators and with surrogate screening and management and so forth, so I’ve become less popu­lar with a number of Australians who ­can’t afford other countries.” For the ­future, Sam would like to see greater numbers of local surrogacy arrangements taking place, and is frustrated at the local laws that create barriers to access: “We [Australia] have become the pariah of developing countries with surrogacy, and our government is not interested in changing anything at home.”

Conclusion Intended parents are diverse, but are united in their determination to pursue forming a ­family, at enormous emotional and financial cost. In dealing with the considerable risks of undertaking surrogacy, as seen in this chapter, the c­ ouples I met and interviewed attempted to mitigate risks by carry­ing out their own research on surrogacy and the vari­ous clinics and countries and taking advice from friends, ­family, ­lawyers, social media groups, and advocacy organ­izations. For many, however, undertaking international commercial surrogacy was an act of faith—in the technologies, the facilitators, and the surrogates. With ­little but the internet and technology to connect them to the pregnancy, they ­were placed in vulnerable and dependent positions in relation to clinics and facilitators. When t­ hings went wrong, intended parents found themselves with ­little support and few ­legal rights. To assume that all ­couples undergoing surrogacy share a common orientation ­toward it is to elide the many differences that in-­depth case studies reveal. For example, the socioeconomic statuses, social contexts, experiences, reproductive histories, sexual orientations, and managements of the surrogacies described in the case studies presented in this chapter all differed. We cannot assume a common identity or shared understandings between intended parents. What they do have in common is their desire to conceive a genet­ically related ­family and vulnerability, as p­ eople who cannot reproduce without third-­party assistance and

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technology. Their common vulnerability leads them to engage in overseas surrogacy and positions them as consumers within the surrogacy industry. As consumers, they speak of their agency and choice; the real­ity, as we have seen in t­ hese case studies, is that they are usually positioned as dependent upon facilitators and clinics, often with ­little choice, few options, and uncertain l­ egal status when ­things go wrong. They may act out the neoliberal myth of the empowered consumer, only to find themselves rendered vulnerable to the organ­ization and practices of disruptive capitalism. The growth of intended parent advocacy groups emerged in part from this vulnerability of intended parents and their need for an in­de­pen­dent source of information within an aggressively marketed industry. Th ­ ese advocacy groups constitute forms of what social scientists call “biosociality” (Rabinow 1996). In its simplest form, biosociality refers to collective identities emerging from categories in biomedicine and science, in this case p­ eople’s thwarted desires to form families (Rapp 1999, 302). Th ­ ese groups are reshaping how intended parents or­ga­nize themselves, construct their identities, and pursue treatment. Membership of such groups is not fixed—as ­couples form families successfully, they may find they no longer wish or need to identify with ­others in the group. But they have served to educate and motivate other ­people about the option of pursuing overseas surrogacy. In Australia, the massive increase in p­ eople traveling overseas for surrogacy must in part be attributed to their greater access to information and increased sense of efficacy encouraged by their involvement with Surrogacy Australia and FTS. In this, the internet and social media play crucial roles in the rapid dissemination of information and the ready ability to encounter other like-­ minded ­people virtually. But, as noted, such groups are not homogeneous, and negotiate a range of social and economic differences and cut across other identity politics, as in the case of LGBTIQ families and recognition of marriage equality for gay ­couples. As volunteer organ­izations, Surrogacy Australia and FTS may find their capacity stretched when faced with the rapidly changing disruptive industry or called upon to respond to controversial incidents or complex ­legal difficulties that occur as a result.

4 • FACILITATION A facilitator is ­really impor­tant to proj­ect manage the entire pregnancy. (US-­based facilitator 2015) It [surrogacy] is full of ­people willing to take your money. (Andrew, Australian ­father of a d­ aughter born through surrogacy in Thailand) It can be difficult to control when an agent is involved. (Thai infertility doctor involved in surrogacy 2013)

The aggressive new entrepreneurial model of surrogacy that emerged in India post-2002 spawned a proliferation of surrogacy facilitators linking intended parents with clinics and surrogates. The international surrogacy industry, like medical travel more broadly, depends upon a range of facilitation companies commonly referred to as agents and agencies (see Gan and Frederick 2011; Snyder et al. 2011; Turner 2011) or brokers (Speier 2011). Although the companies involved may be small or large, ranging from multinational companies to single-­person operations, throughout this book I refer to ­these collectively as facilitators. Epitomizing the flexibility and adaptability of companies within the post-­Fordist bioeconomy, surrogacy facilitation companies usually run with l­ittle overhead—­they can be set up with a computer, an internet connection, and clever marketing—­and their staff do not require any par­tic­u­lar qualifications, although several agents advertise their own personal experience of IVF or surrogacy, or previous nursing or allied health backgrounds. The commonality is that they all promote international ova donation and surrogacy arrangements, linking patients to health care providers and subcontracting surrogates. Th ­ ese facilitators may also run surrogacy brokerages or link clinics to brokers; arrange patients’ travel and, in some cases, or­ga­ nize the ­legal requirements for liaison with embassies; and facilitate the local registration of births, passport applications, citizenship applications, and exit procedures. A number of companies specialize in IVF and reproductive travel exclusively, while ­others are medical facilitation companies that link patients to a broad range of ser­vices. They may include facilitation with surrogacy brokering or may be only conduits between clients and clinics or separate brokerage companies. 99

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Intern ation a l Surrog ac y a s Disrupti v e Ind ustry Lawyer Intended Parents

Hotel

Travel company/ airline

Facilitator

“Spotter” parent

IP embassy

Surrogacy broker

Ova Provider

Surrogate

Hospital

Clinic Host Government

Laboratory

Insurer

Figure 4.1. The assemblage of all potential ­people (round) and companies (square)

required to produce a child through international surrogacy.

Facilitators usually maintain a close association with a se­lection of IVF clinics, often receiving a payment from clinics for referrals. Apart from the clinics, intended parents, surrogates, and facilitators, the surrogacy assemblage includes translators, ­lawyers who assist clients with citizenship requirements and surrogacy contracts, embassy staff, and the hospitals where surrogates give birth. Figure 4.1 illustrates the vari­ous individuals (round) and companies (square) that need to come together and be choreographed to produce a child through international surrogacy. Any given individual assemblage may differ, but it requires the coordination of a variety of actors and entities as well as the bio-­technical pro­cesses to result in a successful birth. Facilitators structure choices and mediate the relationships and logistics between ­these vari­ous parts. In the medical travel lit­er­a­ture, the position of the facilitator within the health care system or medical tourism industry is a source of debate (Dalstrom 2013; Gan and Frederick 2011; Snyder et al. 2011; Turner 2011). Researchers are concerned with describing facilitators’ roles, how they operate, and how they integrate with health care delivery. Studies examine medical travel facilitators as businesses situated within the health care market (Gan and Frederick 2011; Turner 2011), exploring their relationships with their patient-­clients (Snyder et al. 2011) and social networks (Hanefeld et al. 2015). In this chapter, I examine surrogacy facilitators as a specialized type of medical facilitator. In her study of US c­ ouples traveling to

Facilitation 101

Eu­rope for assisted reproduction ser­vices, Amy Speier (2011) notes the symbiotic relationship between brokers and intended parents, and how the choices parents make shape the success of companies and clinics and the nature of the organ­ization of reproductive travel in Central Eu­rope. Across Asia, similarly, the choices of intended parents—in par­tic­u­lar, their demand for lower cost surrogacy—­drove the development of the high-­volume, on-­demand models of disruptive surrogacy. But, as I discuss in the final chapter, this also highlights the potential for intended parents as consumers to influence the ­future development of the industry ­toward more equitable models. Facilitators articulate a number of other ele­ments of the assemblage that is the surrogacy industry, drawing together the clinics, intended parents, surrogates, ova donors, ­legal specialists, embassy staff, and, in some cases, accommodation and travel companies. Utilizing an assemblage approach in this ethnography allows us to describe how international surrogacy comprises, and is maintained by, interactions and relationships among ­these vari­ous ele­ments drawn together at par­tic­ul­ar junctures. Facilitators perform par­tic­u­lar functions through their multiple articulations with other components at vari­ous sites of the assemblage (Chee, Whittaker, and Por 2017). Assemblages coalesce between connections of entities at dif­fer­ent scales—­ from the micro to the macro level, and the intermediate levels in between (DeLanda 2006, 5–6). Likewise, facilitators act across t­ hese scales, from dealing with broader regulatory issues to the micro scale of affective ­labor, reassuring intended parents, and mediating relationships between surrogates and intended parents. In figure 4.2, I represent the ways in which facilitators link vari­ous ele­ments of the assemblage together. Not e­ very facilitator undertakes all of t­ hese roles; however, they all undertake some of them. Surrogacy facilitators may give the impression of providing their clients with “choice”—­that is, informing intended parents of the vari­ous options available to them. In real­ity, they usually have relationships with par­tic­ul­ ar clinics and w ­ ill steer intended parents t­ oward ­those doctors and clinics with whom they have existing relationships. They partly act as “choice architects” who arrange ele­ments and infrastructure to shape choices and decision making (Thaler and Sunstein 2008). In this, they draw upon the moral economy, recognizing the importance of personal affective relationships in their business. Facilitators are usually charismatic ­people who emphasize their personal connection to IVF and surrogacy to build rapport and trust with their clients. In this chapter I explore the organ­ization and stories of the facilitators whom I met during my fieldwork. ­These include facilitators who operated exclusively out of Thailand but also companies that offered Thailand as one of their many destination options. The flexibility and mobility of t­ hese companies and their fluid articulations to the vari­ous ele­ments of the assemblage are key to the “disruptive” potential of the industry. ­There has been relatively ­little written about the nature of ­these companies and individuals. This may be due to the fact that many accounts

102

Intern ation a l Surrog ac y a s Disrupti v e Ind ustry • Arrange for hospital for surrogate, visit during stay

Hospital

• Provide accommodation for surrogates • May part-own or receive referral fee for IP accommodation Travel and Accommodation • May receive commission for travel booking • May arrange for holiday stays prior to birth or after, or receive fee for referral Embassy

• Liaison with staff about exit procedures and passports

• Possibly receives fee or commission from clinic for referral • May translate clinic communication to IPs

Clinic Facilitator Intended parents

Surrogate

Lawyers

• • • • •

Recruits and liases with IPs Arranges contracts with lawyers Translates material Recommends or liases with clinic Arranges accommodation and transport for IPs • Mediates communication with surrogate

• Recruits and pays surrogate • Arranges transport to clinic appointments • Points of contact for surrogate to ensure well-being • Arranges accommodation during pregnancy and postnatal period

• May recommend particular lawyers to intended parents; or • May employ own lawyers to arrange contracts and exit procedures for surrogates and intended parents

Figure 4.2. The vari­ous work undertaken by facilitators articulating vari­ous ele­ments of

the surrogacy assemblage.

of surrogacy come from the United States, where the surrogacy industry and the role of agencies are more stable and many surrogates act as in­de­pen­dent negotiators. In contrast, international surrogacy arrangements in Asia have been highly dependent upon facilitation companies for mediating all aspects of the process—­ crucial both as a means of linking the vari­ous social actors together and in providing bound­aries between them.

The Organ­ization of Facilitation Companies The arrangements and roles of facilitation companies in international surrogacy differ depending upon the jurisdiction in which they operate. For example, the

Facilitation 103

Indian and Thai international surrogacy industries varied due to the dif­fer­ent l­ egal status of surrogacy in each country. In India, from 2002, clinics w ­ ere openly advertising and arranging surrogacy, acting as agents, brokers, and clinicians, in a highly entrepreneurial fashion. However, in Thailand, a range of intermediaries ­were involved. Since the Thai medical guidelines did not allow commercial surrogacy, medical clinics maintained a distance between the recruitment and contracting of surrogates and ­actual assisted reproductive treatments. Thai clinics did not arrange surrogates themselves, although they would treat a surrogate once she came to the clinic. This distanced the clinics from the commercial exchange involved and therefore pos­si­ble l­ egal consequences. As the market for international assisted reproductive treatments and surrogacy grew in Thailand, a number of local and overseas facilitation companies began to operate ­there. An assortment of other industry players specializing in, and profiting from, international surrogacy also began advertising their ser­vices. From 2012, with the closure of India as a destination for gay ­couples, the number and visibility of facilitation companies advertising surrogacy in Thailand proliferated. The industry in Asia is characterized by three models of facilitation agency. The first model relates to medical facilitation companies that specialize in offering a range of treatments and ser­vices for patients, of which surrogacy is only one. The second model covers small, local surrogacy facilitation companies that utilize local knowledge to make arrangements, which may work with surrogacy brokers or recruit their own surrogates through local networks and social media advertising, and emphasize the importance of local personal contacts in their relationships with par­tic­ul­ar clinics and doctors. The third involves local branches of larger multinational operations that have relationships with clinics or owner­ship of clinics in multiple countries and facilitate the movement of ova donors, gametes, medical staff, and surrogates across jurisdictions. Examples include New Life Clinic from Ukraine, which has branches across Asia, and California-­based Complete Surrogacy Solutions (CSS). By offering arrangements in a variety of countries, such companies offer surrogacy at dif­fer­ent price points and with dif­fer­ent l­ egal arrangements. Below I describe three models of facilitation com­pany that operated in Thailand and, at the time of writing, continue to operate within the region. Model A: Broader Medical Travel Facilitation Com­pany Com­pany A was owned by an Australian w ­ oman but was registered in Hong Kong for reasons related to taxation and liability. Although the bulk of her business was for cosmetic plastic surgery procedures, before the bans on surrogacy, her com­ pany also arranged surrogacy in Thailand and India. She had a small number of staff members, including a nurse who helped with the postoperative care of her cosmetic surgery clients while they stayed in accommodations owned and provided by her com­pany. She had an exclusive referral arrangement with a hospital in Thailand for which she received a commission for referrals based on the overall

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costs per patient; however, she took no money from patients for the ­actual medical costs, as patients paid t­ hese directly to the hospital. This was done to minimize any liability on the part of the com­pany. Her com­pany had ties with another com­pany that brokered surrogates. She also arranged referrals to a second assisted reproduction clinic in Thailand, apart from the hospital clinic, and could arrange for referrals to another clinic in India if intended parents preferred. She had a second registered com­pany for Indian surrogacy. Com­pany A arranged airfares and some travel in the country if desired, owned its own accommodations, and facilitated other ­matters, such as ­legal requirements. At each clinic, doctors treated the ­couple and surrogate and had no direct involvement in the surrogacy recruitment or contract arrangements. When I interviewed the com­pany owner in 2012, she was thinking of moving out of the surrogacy industry: she stated that it was a bit too complicated for her liking and not as profitable, given the time involved, as other medical travel procedures. Model B: “Boutique Ser­vices” by Small Local Facilitation Companies Pui was an early pioneer in international reproductive travel in Thailand, having started her agency in 2007. She was a dual citizen of Thailand and Australia, was fluent in Thai and En­glish and a nurse by training, and had worked in intensive care nursing. Aged forty-­eight when we met, she had strug­gled with infertility for ten years but was eventually successful with IVF to conceive and now had a large ­family through assisted reproduction, so she was familiar with the techniques involved. She was encouraged to start her surrogacy business by her Thai infertility doctor and offered clients assistance with stem cell banking, IVF, and surrogacy. Her doctor provided her with some training in laboratory procedures for embryo culture, so she was also familiar with the laboratory. Although she started her Australian-­based com­pany to offer surrogacy in Thailand, once Thailand introduced its bans she moved her operations to Cambodia and ­later Laos. She then worked exclusively with one clinic and praised the foreign-­trained Thai doctors with whom she worked. She recruited surrogates through her social networks, and surrogates ­were usually referred through friends who had been surrogates, and ­were then screened, tested, and interviewed. They had to be between twenty-­five and thirty-­seven years old, not smoke or drink, have a high school education, have at least one child, be single or divorced, and have had no complications in their previous pregnancies. The surrogates ­were required to stay in Bangkok during their pregnancy and ­were usually h­ oused in apartments owned or arranged by Pui. Most surrogates did it twice, and she would insist that they have at least an eight-­month break between pregnancies. At the time, her agency charged intended parents around AU$32,000. Of that, she stated that surrogate ­mothers received around 70 ­percent, or an average of AU$23,000. In 2016, she stated that she arranged over sixty surrogacies a year, many for Chinese intended parents.

Facilitation 105

Another facilitator, Sarah, was from the United States, but arranged surrogacies in Thailand and India and ­later moved operations to Nepal, then Cambodia and Mexico. At the time of our interview, her com­pany had been operating for three years. Like other facilitators, she had personal experience of infertility and nephews who had been born through surrogacy in India. She ran a small agency and received a small fee from intended parents. She described her arrangements as follows: I have a small agency fee that’s paid, that’s the only money that’s paid to me throughout this w ­ hole pro­cess, which the intended parents pay direct. Then I have a special package price with Dr. Withi and I ­will bill for him, but according to the schedule that I have set up. We w ­ ill wire the money directly to him for all surrogate care, all general care, every­thing. It’s kind of every­thing u­ nder one roof. And then you [intended parents] ­will pay the hospital directly for birth, we set up a payment plan. We use Sukhaphap Hospital. . . . ​I know the surrogate is directly paid AU$9,000 for a single pregnancy and AU$13,000 for a multiple pregnancy. Now on top of that fee, on top of what she’s paid and some ­people they say a surrogate gets paid a certain amount of money, but what ­they’re not saying is out of that money she has to kind of take care of t­ hese [clinic] expenses and stuff. This [payment] is the direct compensation to the surrogate. Model C: Global Network Com­pany C is a large facilitation com­pany that specializes in commercial surrogacy and ova donation, with branches in Georgia, Ukraine, India, China, K ­ enya, Mexico, Poland, South Africa, and, before the bans, Nepal, Thailand, and Cambodia. At the time of the research, the com­pany had recently set up a clinic in Laos. With fertility centers in multiple nations, this network has been able to take advantage of scale as well as respond to l­egal lacunae to arrange commercial ova donation and surrogacy through multiple means, including the movement of ova donors, surrogates, gametes, and embryos across borders to ensure ­legal compliance. The com­pany openly advertises its ability to arrange for “Caucasian and Asian egg donors to travel worldwide,” and it acts as a surrogacy broker with a large number of ­women who are cycling at any given time, ready for transfers on demand. Com­pany C can arrange for egg donors or surrogates to travel to India or Eastern Eu­rope to assist with surrogacies; however, sometimes such donors are not fully prepared before they fly out, resulting in further expenses for the intended parents. I chatted with the com­pany’s international coordinator for Thailand at an industry stall at a conference in 2014, when she had been working for the com­pany for six months. She had previously worked in marketing and explained that she came to be involved with the com­pany as she had herself been an ova donor for two anonymous transfers and two known transfers; through this experience, she explained, she had found meaning in her life. This led her to work for the com­pany. She lived

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in Bangkok. Previously, Com­pany C had used a doctor who ran his own clinic, but then started its own stand-­alone clinic with its own laboratory, and had an arrangement with a hospital for the provision of maternity care.

The Workings of Facilitation Typical of post-­Fordist cap­it­ al­ist enterprises, surrogacy agencies undergo rapid changes and transformations—­with new companies launching, o­ thers closing, and the same p­ eople founding a number of dif­fer­ent companies to appeal to dif­ fer­ent parts of the market. As I discuss in chapter 5, t­ hese agencies are highly dependent upon information technologies, which enhance their ability to micromarket and their flexibility to or­ga­nize surrogacy arrangements across borders. As dif­fer­ent countries in Asia moved to close down the industry in the 2000s, companies responded by transferring their operations, including arranging for the export and transfer of frozen embryos to other destinations if l­egal to do so. As an example, Deborah is an Australian director of a US-­based surrogacy agency that started in Thailand just prior to the closure of surrogacy, moved operations to Nepal ­after 2015, and l­ ater moved to Mexico. She has had two c­ hildren through surrogacy in India. The com­pany itself has operated for six years, and Deborah claimed that it had assisted over five hundred ­couples to form families in that time. ­Until 2017 she had two business partners in Miami, Florida—­themselves gay dads through surrogacy in Thailand—­who, in 2015, ­were arranging to have a second child through surrogacy in Mexico as well as acting as the facilitators for her com­ pany in Mexico. They have since started their own com­pany concentrating upon surrogacy in Mexico. Facilitation companies are paid in dif­fer­ent ways. The relationship between clinics and facilitators may be a very close one of joint owner­ship or may be based on referrals, and it can be difficult for intended parents to differentiate between the advertising of a clinic and of a facilitation com­pany. Some facilitators charge intended parents a management fee, but ­others receive a referral fee from clinics; ­others are paid a fixed sum by clinics to ­handle the management of the surrogacy-­ intended parents’ needs; in some cases they receive a percentage of the overall clinic costs of each client. In rare cases, facilitators charge intended parents an overall fee and pay the clinics out of that for their costs, but paying for medical expenses carries medical liability, and facilitation companies usually avoid this. Facilitators may also earn a profit or referral fees on accommodation packages, transport, and concierge ser­vices. Although some clinics might accept referrals from any facilitator, ­others may enter business arrangements only with certain facilitators with whom they have a relationship to maintain quality of ser­v ice. Some facilitators advertise their “exclusive” agreement with par­tic­u­lar IVF clinics; however, it is not always made clear that multiple agents may have such “exclusive” agreements and that intended parents could also contact clinics directly.

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For example, Reproductive Solutions (http://­www​.­reproductive​-­solutions​.­com​ /­about​-­me​.h­ tml) offers the ser­vices of the founder Janine to link intended parents to a se­lection of clinics that she recommends based on her previous experience and research. She states that ­there is no fee charged to intended parents for her assistance: “Clinics routinely pay a referral fee to other Doctors and Specialists. Your costs ­don’t alter regardless of ­whether ­you’re referred and have assistance, or if you go to the clinic directly by yourself. By using my ser­vice, the clinic saves on the expense of hiring full time program coordinators and is able to utilize the help I provide for their patients.” She explains her role as follows: “Clinics have a huge number of enquiries from all over the world, so t­ here can be a delay in timely responses. Also, the Doctor’s/clinic’s focus is on the ­actual cycle itself. They are usually not able to assist with the necessary legalities, visas or travel ­etc. Therefore it is far easier for the Doctor to have an experienced coordinator who knows their specific pro­cess to communicate with both of you, gather the required test results, answer questions, locate donors if needed and ensure a smoothly or­ga­ nized cycle.” Apart from linking intended parents to clinics, many surrogacy facilitators also link intended parents to ­lawyers or provide their own ­legal ser­v ices, assisting intended parents with navigating local laws to arrange for passports and exit procedures. As illustrated in the story of Elise and John in chapter 3, some of the intended parents I interviewed did not get in­de­pen­dent ­legal advice before undertaking surrogacy overseas, instead relying on facilitators and their own research to make ­legal arrangements. This speaks to both the perceived expense of the l­ egal profession and the ­legal naivety with which some intended parents approach overseas surrogacy, often unaware of the local l­egal niceties and willing to trust the reassurances of their agencies. Depending upon the extent of their local experience, facilitators may have a network of p­ eople within embassies and immigration department with whom they regularly liaise. In some cases, facilitators complete the paperwork, meaning that all intended parents and surrogates need do is sign the forms. I observed one facilitator ­doing so at the hospital bedside of a surrogate who had just given birth. For many intended parents, this aspect of the pro­cess of arranging surrogacy, which often comes at a time when they wish to concentrate upon their newborn child, is stressful and confusing, so they appreciate having a facilitator pres­ent to help them navigate and arrange the vari­ous forms and procedures. For Australian intended parents, this includes arranging ge­ne­tic testing to prove their biological relationship to the baby, which is a required part of the pro­cess for Australian citizenship applications and passports; embassy interviews with the surrogate ­mother and Thai Immigration to allow the child to leave the country with the biological parent/s; and, in some cases, court procedures through which the surrogate can relinquish her parental claims, as the birth ­mother is considered the ­legal m ­ other ­under Thai law.

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A number of intended parents spoke to me of ­legal sleights of hand undertaken by facilitators to minimize the paperwork. For example, one intended parent said that he had been informed that he should tell the Thai authorities during the custody transfer proceedings that he had had a one-­night stand with the surrogate, who had then fallen pregnant, and that, as she had no interest in the child, the two had agreed that he would be responsible for the child as the ­father. This is consistent with accounts provided by surrogates during investigations into the Shigeta case of serial surrogacy (detailed in chapter 6), who had been told to perjure themselves and state that they ­were girlfriends rather than surrogates during Thai custodial proceedings (Anonymous 2014a). Other intended parents I interviewed had been vague about the pro­cess but noted that they had been told “not to mention surrogacy.” One facilitator who was involved in arranging embryo transfers out of Cambodia noted that other companies used Cambodian ­women as surrogates but ­were r­ unning a risk b­ ecause if the surrogate ­mother is a Cambodian citizen, the arrangement may be “seen as ­human trafficking and they [the intended parents] got a prob­lem in immigration. Even they got the birth certificate or Australian passport or what­ever, but immigration stop them. You have to pay ­under [the] ­table. Ten thousand dollars. . . . ​In another case I heard they had to pay forty thousand.”

Expert Claims As the above profiles of ­these vari­ous models of facilitation com­pany reveal, many facilitators and their employees have personal experiences of surrogacy, ova donation, or fertility issues that led to their involvement in the industry. Such insider knowledge is crucial to the claims of expertise of facilitators. For example, Pui explained that her com­pany started following a suggestion by a doctor. The clinic initially referred c­ ouples to her for some counseling: “­After that doctor Ton said to me: ‘Why d­ on’t you work at an agency . . . ​maybe you can do more ser­vice.’ So I started from ­there . . . ​it just started small . . . ​first we ­didn’t do advertising or what­ever just Dr. Ton referred some c­ ouples to us to give counselling. Yeah, and you know like they came to the clinic and if they needed a donor, the doctor said to us, ‘They need counselling.’ But a­ fter that I thought, ‘Oh we should do [a] website. Do a website, like a first step, [then next] step, [and next] step.’ ” For Pui, and many other facilitators, personal experience of IVF was presented as what differentiated her from other facilitators who did not have any special knowledge of assisted reproduction. Such insider knowledge is usually highlighted in advertising and on Facebook sites, with facilitators assuring potential clients of their empathy and trustworthiness, and that their involvement in surrogacy is driven by a desire to help o­ thers rather than by commercial interest. The following com­pany’s blog is typical of such appeals:

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And ­because all three of our founding partners have had c­ hildren through surrogacy, we understand what it feels like to be an intended parent, to go through the surrogacy pro­cess from start to finish. That’s what sets us apart from other surrogacy agencies: ­because we have all had babies through surrogacy, we sincerely understand the intended parents’ perspective and we are with you e­ very step of the way, from the decision to proceed with surrogacy all the way up to your baby’s birth and getting your baby safely back home. (http://­yadensurrogacy​.­blogspot​ .­co​.­uk​/­2015​/­03​/­family​-­surrogacy​-­affordable​-­and​-­ethical​.­html)

Likewise, the founder of ThailandFertility, a com­pany that was offering ova donation brokerage rather than surrogacy at the time of my fieldwork, describes the medical qualifications and personal experience of her staff on the com­pany’s website (http://­www​.­thailandfertility​.­com​/­about​-­cathie): Cathie qualified as a Nurse in Australia in 1978 and went on to achieve a Post Gradu­ ate Diploma in F ­ amily Counselling and qualifications in Complimentary Medicine including Acu­punc­ture and Oriental Therapies. Prior to focusing 100% on fertility ser­vices Cathie also studied and taught Yoga for over 25 years and developed a unique Yoga program designed to help prepare w ­ omen for pregnancy and l­abor. This program has been featured on several Australian TV channels. . . . ​Cathie moved to South East Asia in 2006 and has since assisted over 2000 Intending Parents with fertility ser­vices such as Egg Donation and Surrogacy. She has professional and personal experience with most of the leading fertility Clinics and Hospitals in the region. Cathie is a caring fertility con­sul­tant and counsellor and having had a large number of fertility treatments herself, knows just how emotionally and financially draining continuous negative results can be. She ­will be ­there to guide you through whichever treatment pro­cess you choose and support you with her almost 30-­years’ experience.

Even large multinational organ­izations such as New Life Global Network emphasize the personal experience of their employees, emphasizing their genuine desire to help intended parents over their need to make money. For example, in an advertising brochure for New Life collected in 2014, the founder Dr. Mariam Kukunashvili wrote, I know that you most prob­ably have gone through a lot of tries, doubts emotions but my personal experience enables me to tell you: it’s too early to give up! ­After 11 unsuccessful IVF attempts, suffering endometriosis and 4 surgeries, then one successful but ec­topic pregnancy, I also had to turn to surrogacy. With the help of 2 wonderful surrogates, I and my husband now have a beautiful ­daughter and twin boys, born in 2011. . . . ​We understand how complicated it can be for you to make

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your life-­changing decision to carry out infertility treatment abroad, in a totally dif­fer­ent country. Therefore we strive to take all efforts to help you minimise any potential stress or discomfort on the way and we look forward to star[t]ing our journey together.

Appeals to the sophistication of the equipment used and the training of the fertility specialists involved are especially impor­tant for ser­vices offered in Southeast Asian countries, more so for t­hose operating in less developed settings. Many intended parents are not familiar with Southeast Asia and carry negative assumptions about the standards of care they ­w ill receive. For example, one contributor to an online forum on international surrogacy stated, “I think such countries as Mexico, India and Thailand are too dirty to plan a child t­ here. And ­really t­here are Eu­ro­pean countries which offer surrogacy for reasonable prices” (LeoNore, April 19, 2016, www​.­fertilethoughts​.­com​/­forums​/­surrogacy​/­722005​ -­surrogacy​-­mexico​.­html). As noted in chapter 8, g­ reat emphasis is placed upon reassuring potential clients that locations in Thailand, Nepal, or Laos can offer a similar level of ART as destinations in the United States, Australia, and Eu­rope. The Miracle IVF Center in Vientiane, for example, advertises itself as the “only IVF lab in Asia licensed by the United States Food & Drug Administration (USFDA).” Its brochure states that it is “equipped with the latest in advanced fertility technologies, and staffed with leading scientists and doctors with proven success-­rates.” New Life Asia (https://­www​.­newlifeasia​.­net​/­) appeals to Orientalist imagery of Asia and Asian ­women as well as the price differential: ­ ere are many advantages to choosing Asia and the geographic location is one of Th them. Situated in the southwest of Indochinese peninsula, Asia is a very con­ve­ nient destination for many intended parents. Asia is known for its hospitality and remarkable ancient culture that can be experienced while visiting for the program. Asian surrogate m ­ others are known for their remarkable health and ability to carry the baby full term. We can offer much lower rates for our ser­vices in South East Asia compared to other destinations and our intended parents find this as one of the major advantages we can provide.

Carly entered the surrogacy industry when she undertook marketing work in Thailand for a DNA lab in the United States that was looking to “localize.” Through this work she met Pui, and joined her com­pany: “She needed actually some marketing, she wanted to maybe redo her website, a few ­things like that, and so that’s how we got talking. And then I think over t­ hose years I think my own personal interest and I’d even start to use the word passion as well for . . . ​what Pui does or seeing how much p­ eople want families.” Carly emphasized the importance of displaying real photo­graphs and real testimonials on the com­pany’s website:

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Well it’s very much about I think giving visibility to it as well . . . ​you know photos of the clinic, like real, not just the polished, pretty, professional photos, but photos of Australian ­couples ­there or, you know, surrogates or just ­things like that. I think humanizing as well, interviews with parents, interviews with surrogates about how do they feel. Why did they choose, I like to get into their back story before they made a decision of where [they undertake surrogacy], ’cause I mean it could be anywhere in the world, right? So I find that’s always a very in­ter­est­ing story and that a lot of p­ eople might read that and go, hey I’m in that exact same research pro­ cess. And of course I always encourage ­people to do their own research, and it’s got to be about what they feel comfortable with as well in terms of the p­ eople that ­they’re dealing with as well.

Another way in which facilitators attempt to recruit intended parents is to employ satisfied former parent clients as spotters, paid to refer ­others in their social network to the same agency. Spotters may write blogs mentioning a com­pany’s ser­vices, offer advice on chatrooms or forums, or informally recruit at conferences by disseminating their personal experiences with par­tic­u­lar facilitators. As all facilitators know, word of mouth is the most trusted form of advertising for their com­pany’s ser­vices. Carly, for example, who is responsible for marketing for one facilitation com­pany, noted, “­You’ve got p­ eople d­ oing the talking for you which is always better if someone ­else says y­ ou’re good. It’s worth ten times more than you saying ­you’re good.” The role of spotters has been controversial within the intended parent community, particularly as they may not be open and declare their financial ties to certain facilitators. At conferences and online, ­there are frequently warnings among intended parents about the dangers of believing all that is written in the testimonials and blogs of other parents. As one conference presenter stated, many spotters set up their own blogs and “whilst they can be very good in giving you practical, how-to information at no cost to the intended parents, the difficulty is that they are very biased about which clinics they suggest and t­ hey’re not t­ here to provide any ongoing support for parents.” The presenter explained that spotters are used in Australia due to the laws restricting the ability of agencies to advertise in Australia and ­because they understand the power of word-­of-­ mouth recommendations. In many cases, spotters themselves do not disclose that they are receiving fees for referrals, as in some states of Australia, this is also against the law—­a perverse consequence of which is the lack of transparency surrounding information on surrogacy. As a result, a number of intended parents in this research expressed suspicion over advice given on forums and chat sites as they felt one could never be certain that the parents giving recommendations ­were not being paid by companies. In addition to ­these covert recruiters, other parents have set up companies or become partners in agencies, wherein their personal experience is used to marketing advantage. In this regard, the line between intended

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parents and agents can be blurry. In other cases, agents have posed online as intended parents to praise their companies’ ser­vices.

Mediating Relationships Across Asia, facilitators usually act as surrogacy brokers who recruit, contract, and care for surrogates throughout their pregnancy. They may also act as ova donor brokers, although many liaise with other companies if ova donation is required, especially due to the difficulties in ensuring adequate supplies of Caucasian donors in Asia, who may be more easily sourced from companies in South Africa or Eu­rope. In 2014, Frank undertook a surrogacy arrangement in Thailand for his yet-­ to-­be-­born ­daughter. He stated, “­These agents [at the com­pany] are ­really, ­really focused on the surrogate m ­ other and that connection is of the utmost importance to make. You want to be sure that your child is ­under the best care and guidance and your surrogate m ­ other is also feeling comfortable with every­thing and her questions are answered and you have a ­really close connection.” Local knowledge is required if a facilitator recruits surrogates from within the country. In the case of Pui, her professional and social networks w ­ ere the initial sources of ova donors and surrogates: “­Because I was a nurse I asked the other nurses, ‘Have you got a sibling? You got a cousin?’ We start[ed] from ­there. . . . ​ Yeah, and a­ fter that they brought me like the university girls and they asked [their] friends. Yeah, yeah, normally the egg donor they recruit their friends and they explain [how it works]. . . . ​In the hospital I said, ‘Do you have someone who wants to carry, wants to be pregnant?’ and they like [spread it] through a word of mouth.” Since her com­pany moved operations to Laos, she had also drawn on ­family and friendship ties in Vientiane to spread the word about the opportunity to undertake surrogacy. In this, the linguistic and cultural affinity between northeastern Thailand and Laos was an advantage. The advertising by facilitators emphasizes close, nurturing relationships between facilitators and intended parents, and for some such is the case. Grateful parents can be seen greeting facilitators at surrogacy conferences and fertility shows, and facilitators talk of their clients remaining in contact with them via Facebook, each year sending greetings and posting updates and ­family photo­graphs on their c­ hildren’s birthdays. Websites are filled with testimonials from grateful parents. For example, the Reproductive Solutions website (http://­www​ .­reproductive​-­solutions​.­com​/­testimonials​.­html) carries a range of parents’ endorsements of the com­pany’s facilitator Janine for their successful surrogacies around the world: “Hello Janine. ­We’re emailing you from Cambodia with our deepest thanks—­I’m just ­here with our baby girl, our boy is still sleeping. We ­wouldn’t have made it ­here without your advice and support. All our love and best wishes for the f­ uture. You do amazing work that r­ eally changes lives. If you ever find yourself in B please look us up—­we’d love to have you visit!”

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But the relationship between the facilitator and intended parents can be vexed. One facilitator, Sophie, who owned a medical facilitation com­pany offering cosmetic surgery as well as surrogacy in India and Thailand, described p­ eople undertaking surrogacy as “tricky” and requiring “a lot of work” and support, especially ­because of the long periods of time for successful implantation and pregnancy that are required. She preferred working with her cosmetic surgery patients. Pui, a facilitator working in Thailand, Cambodia, and Laos, noted, “Our job is about trust b­ ecause when you sign an agreement with me it d­ oesn’t mean tomorrow ­you’ve got a baby. We work on it a ­whole year and maybe two years.” She stated that she is choosy about whom she w ­ ill accept as intended parents, basing her decisions as to who w ­ ill be good to work with and who w ­ ill not on her “gut reaction.” She noted that some parents demonstrate a lack of trust in the clinic, constantly asking for evidence of each injection taken by the surrogate: “And if a parent is asking t­ hose types of t­ hings you get the idea of, well, that’s not the right type of relationship e­ ither you want between the donor or the surrogate and the parent. I mean that’s not ­really equal footing if the parent is demanding to that level when like I said the donor already is having ­these tests ­every two weeks that shows a lot more clearly than a photo of an injection site. So yeah, I think it goes beyond just they want a photo, it’s perspective . . . ​it illustrates their mindset ­towards the donors or the surrogates as well.” In this way, facilitators can screen intended parents, acting as gatekeepers between intended parents, surrogates, and clinics.

Fraud and Malpractice As an industry operating within contexts in which t­ here are few or no regulations, international surrogacy has been subject to claims of fraudulent practice. As foreign citizens operating across national borders, parents affected by such practices have ­little recourse to ­legal protections to claim or sue for malpractice or in cases of fraud. Companies themselves are often registered in third countries and may quickly dissolve in the face of controversy. One most public case involved the com­ pany Planet Hospital, a US-­based surrogacy brokerage firm run by Canadian Rudy Rupak, who, in shameless self-­promotion, claims to have been the first facilitator to arrange Indian surrogacy for overseas clients.1 Planet Hospital previously offered to arrange surrogacy in India and Thailand and most recently in Cancun, Mexico. Accusations are that intended parents who paid upfront lost tens of thousands of dollars for surrogacies or ova donations that never occurred, that clinics ­were not paid for ser­vices, and that surrogates w ­ ere abandoned and not paid. The com­pany was forced into involuntary bankruptcy by dissatisfied clients, many of whom are engaged in ­legal cases against him at the time of writing (Lewin 2014). His com­pany reportedly purchased over 150 domain names advertising a range of specialized services—­for example, Christian surrogacy, gay and

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lesbian surrogacy, and Mexican surrogacy—­testament to the flexible micromarketing that epitomizes the international surrogacy industry. Other US examples include the conviction of the owner of SurroGenesis, Tonya Collins, who was convicted for fraud and sentenced to five years in jail for taking clients’ money, supposedly placed in escrow accounts for surrogacy costs (Associated Press 2013).2 Another facilitator, owner of Conceptual Options, was convicted, fined, and jailed for baby selling, whereby she recruited surrogates to have embryos implanted in Ukraine for fictitious parents. At four months’ gestation she informed the surrogates that the parents had backed out and then arranged to sell the babies for more than $100,000 (Dillon 2012). The surrogacy cyber community reacts quickly to accusations of fraud, overpricing, or malpractice. For example, heated exchanges in a blog occurred in 2013 over an Indian clinic accused of deceiving and charging parents for surrogate accommodations that did not exist, overpriced insulin for diabetic complications during the pregnancies of nearly all surrogates, and “post-­caesarean complications” that w ­ ere said to have occurred at times when they did not (for example, see indiansurrogacyfraud​.­blogspot​.­com​.­au). Likewise, several facilitators have been targets of internet campaigns initiated by other agencies as well as parents. Intended parents with bad experiences of agencies or who have experienced tragic losses may attempt to warn other intended parents of the shortcomings of a par­ tic­u­lar ser­v ice, only to find themselves then targeted by intended parents and agents. Accusations and counteraccusations, personal insults, and trolling all occur across the cyber community of agents and intended parents. In certain cases, personal insults have been traded on websites, blogs, and Facebook sites. Ultimately, as with all ­things on the internet, it can be impossible to distinguish truth from fiction, and it is confusing for intended parents to navigate.

Conclusion The advent of international medical travel and surrogacy spawned a new category of business—­facilitation companies. ­These are worth studying ­because they articulate and coordinate several ele­ments of the surrogacy assemblage: intended parents, surrogates, and clinics, among ­others. They choreograph complex timing, travel, and logistics. As the opening quote of this chapter suggests, when reproduction becomes a logistics proj­ect rather than an event governed by fickle ­Mother Nature, t­ hese facilitators become proj­ect man­ag­ers. They also exemplify post-­Fordist enterprises in that they are flexible and not dependent on a single location, country, or shop front; may readily relocate capital across international borders; depend upon information technology; require ­little infrastructure; offer affective intimate ­labor and information (in contrast to manual ­labor); and market a specialized, individualized, flexible ser­vice. They are also disruptive, replacing traditional doctor-­clinic referrals with entrepreneurial relationships through

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which they act as choice architects for profit. They make international surrogacy seemingly ­simple and secure for intended parents. They require no special qualifications or training, but successful facilitators utilize extensive social capital and networks to build their business. However, ­there are few protections for facilitators, intended parents, or surrogates when fraudulent be­hav­ior or malpractice takes place. And b­ ecause of facilitation’s cross-­border nature, prosecutions or compensation may be difficult to pursue. The assemblage approach is a frame that links vari­ous scales. At the micro level, this approach allows us to analyze how Pui’s personal history enabled her transition from a patient and nurse/counselor into the facilitator role. At the industry level, it allows us to consider how facilitators’ relations with surrogates, intended parents, clinics, and other ser­vices stabilize and bring surrogacy arrangements into being. At the national and international levels, we see how facilitation companies may circumvent national borders and regulations to adapt their ser­vices to fit new regulatory circumstances—­although occasionally their l­ egal sleights of hand may fall foul of authorities. The following chapters examine more closely attempts to regulate the industry to provide more protections for all parties involved in international surrogacy.

5 • DIGITAL UMBILIC AL CORDS

Digital technologies have revolutionized reproduction; they make international surrogacy pos­si­ble and shape the form, imaginaries, and experience of surrogacy. In this chapter I explore the vari­ous digital technologies used to facilitate, enable, and mediate international commercial surrogacy arrangements. Such technologies act as performative devices, crucial to the organ­ization, contracting, management, continuity of treatment, and communication required in foreign surrogacy arrangements. ­These digital technologies are not just involved in making babies but also reproducing a range of imaginaries, desires, and social relationships—or, to put it another way, they are actants in the surrogacy assemblage, critical to the successful recruitment, marketing, and management of surrogacy arrangements. I explore how intended parents utilize websites and access support, information, and affirmation through intimate relationships developed via “surrogacy publics” on the internet. Intended parents’ relationships with clinics and surrogates and their communication with ­these parties throughout the pregnancy are mediated by such technologies, turning pregnancy into an administrative and calculable activity with consequences for the monitoring and care of the pregnant surrogate. Breakdowns in ­these digital umbilical cords linking intended parents to their baby-­in-­the-­making are experienced as crisis. Following birth, communication with surrogates is often mediated by phone apps that translate languages, and relationships are maintained via Facebook. ­These technologies encourage par­tic­ul­ ar enactments of subjectivity by intended parents, which combine the social ideal of the expert patient with ideologies of parenting. In this chapter, I explore the varied digitalization of reproduction inherent to international surrogacy based upon the roles played by technologies in the promotion and marketing of surrogacy, the spread of a cybercommunity, monitoring the pregnancy, and exchanging information. I examine how t­ hese technologies work to normalize this form of reproduction and reproduce certain values. They generate destinations for surrogacy and propagate imaginaries of the f­uture baby, new ­family forms, and advocacy. At a broader level, neo-­Marxists have noted how information and communication technologies facilitate the flexible accumulation of economic, po­liti­cal, and 116



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cultural capital within a globalized economy (Harvey 1989). They write of the growth of “informational capitalism” (Morris Suzuki 1997), “digital capitalism” (Schiller 2000), and “virtual capitalism” (Dawson and Foster 1996). Manuel Castells (2000) identifies the new technological “mode of development” characterized by “informational generation, pro­cessing, and transmission” that are now the “fundamental sources of productivity and power” (21). Within the post-­Fordist surrogacy assemblage I describe in this book, digital technologies have made pos­ si­ble the flexibility of cross-­border transactions, transfers of capital, and the marketing of ser­vices. They have become crucial to the choreography and logistics of international surrogacy, helping to coproduce the reproductivity of ­people needing surrogacy and the accumulation, trade, and transfer of biovalue.

Promotion Technologies All the intended parents I interviewed had used the internet to explore the possibilities of surrogacy. The internet is celebrated by some as a means to de­moc­ra­ tize access to health information and resources, providing not only biomedical information but also information such as patient narratives and nonmedical therapeutic information (Hardey 1999). Yet ­others are more cautious, noting the pos­si­ble negative effects of the internet as a source of health information (Rose and Novas 2005; Seale 2005). For intended parents contemplating ­going overseas for surrogacy, however, the internet may be their only source of information. In her research on Australians undertaking surrogacy in India before it closed to foreigners, Michaela Stockey-­Bridge (2017) describes websites as the “front door” to IVF clinics and forums and Facebook pages as the inner rooms. In his work on Eu­ro­pean reproductive travelers, Sven Bergmann (2011a, 606) notes that “without the Internet, the a­ ctual global market for IVF and the phenomena of travelling patients would not be imaginable” (see also Speier 2011; Whittaker 2015; Mariano, Yeoh, and Cheng 2017). He suggests that the far-­reaching research and marketing enabled by the internet can be credited for the unpre­ce­dented rate at which mobilities for assisted reproduction are increasing. Most facilitation companies and clinics offering surrogacy ser­vices have sophisticated websites featuring glamorous images and interactive features through which potential clients can contact staff or clinics. For many facilitators, their virtual shopfront is the only infrastructure they require to run their business. In her work on surrogacy in the Czech Republic, Amy Speier (2011) identified how facilitators and US consumers first meet online, through IVF brokers and forums. She notes that intended parents act as consumers making “choices” about the destination, agency, and clinic—­choices that determine the success or failure of facilitation companies and clinics. The internet marketing of surrogacy not only sells ser­vices, but also creates and reproduces certain imaginaries and expectations in relation to the destination

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country. Websites are filled with ubiquitous travel meta­phors and pres­ent infertility, surrogacy, and the quest to form a ­family as “journeys.” Th ­ ese journeys are thus both geographic and meta­phoric, evoking a necessary coherence between one and the other. The destinations are depicted as intimate locations where “dreams come true.” As described in chapter 1, internet advertising from facilitation companies promoted Thailand in Orientalist imagery as an exotic land of smiles, Buddhist calm, and natu­ral beauty while reassuring readers of its sophisticated medical ser­vices. For example, a blog from the website for Thailand Surrogacy, titled “Why Choose Thailand for Surrogacy?” and dated August 15, 2011, began, “Thailand Surrogacy knows that when most of us think of Thailand, we envision a place with white beaches, beautiful golden Buddha statues, ornate ­temples and stupas, and hot spicy food. However, Thailand is not only an exotic place to travel and have fun. The country has some of the best fertility hospitals in the world.” At a l­ ater date, the blog read, “The Thais are well known throughout the world for their smiles. They say that the Thais have a smile for ­every emotion. That is one reason why you should consider Thailand as your next travel destination. . . . ​ Thailand Surrogacy has learned that what makes the Thai p­ eople so special is their devout belief in Buddhism. . . . ​This peaceful religion is felt throughout Thailand and permeates their culture. Thais are very peaceful, happy ­people and like to avoid confrontation. They are well known for their hospitality and welcome visitors from all over the world” (August 23, 2011). Websites also promoted Thailand as a gay-­friendly destination. For example, on its website, Thailand Surrogacy described itself as “open-­minded” and stated that the com­pany “take[s] the stigma away and we teach o­ thers that gay and lesbian c­ ouples also deserve to have ­children” (Thailand Surrogacy Blog, August 30, 2011). The very architecture of t­ hese websites highlights prevailing discourses of individualism, choice, and consumption. Many facilitation sites offer a se­lection of destinations, clinics, doctors, and special package deals. Some offer menus of surrogates and ova donors from which intended parent consumers are invited to select and choose according to their personal preferences. At the same time websites target dif­fer­ent sections of the intended parent market, classifying dif­fer­ent types of parents, for example, according to socioeconomic position, ­whether gay, ­whether single or partnered, and distinguishing between par­tic­ul­ ar “experts” and parents. Apart from websites, Stockey-­Bridge (2017) describes the proliferation of blogs detailing surrogacy “journeys.” She estimates that at the height of surrogacy in India between 2010 and 2014, t­ here w ­ ere hundreds of blogs that functioned as both quasi-­advertising for clinics and sources of information for intended parents. As noted in the previous chapter, some of ­these are written by parent “spotters” paid to promote specific clinics. Clinics likewise have active Facebook pages and Twitter accounts offering inspiration, relevant newspaper articles, and news of successful pregnancies.



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Technologies of Biosociality A number of scholars have investigated how the internet can facilitate the formation of “alternative” subjectivities and practices. Rose and Novas (2005) claim that the internet is enabling digital bio-­citizens who have the ability to self-­ manage their health. Hakim Bey (1991) describes cyberspaces as “temporary autonomous zones” where social rules are suspended. In their work on the formation of subjectivities and attitudes ­toward the use of ARTs and surrogacy within the restrictive environment of Singapore, Mariano, Yeoh, and Cheng (2017) describe the internet as a “bridgespace” (Adams and Ghose 2003) of moral reasoning: “a virtual space that partially enables (and restricts) transnational flows, connections, and formations of subjectivities” (207). As they note, a focus on the online communities formed around a practice such as surrogacy moves analy­sis beyond the individual actor to consider the role of online spaces as forums for intended parents to form communities and articulate narratives about assisted reproduction and surrogacy. ­These online communities reframe surrogacy as a “licit” and “morally acceptable” activity, “transforming something that is socially taboo into something socially acceptable” (207)—at least in the eyes of members of t­ hese communities. Other researchers also write of the empowering and positive role of the internet in enabling forms of community. In her work on first-­time pregnancy and mothering, Sophia Johnson (2014a) analyzed how ­mothers strategically gather both professional and lay knowledge in their negotiation of motherhood. She introduced notions of the internet as facilitating “intimate mothering publics,” referring to Nancy Fraser’s concept of a “counterpublic” as “an environment in which discussions of normally private concerns can be held in a more public domain” (1990, cited in Johnson 2014a, 2). Johnson suggests that ­women in chatrooms and forums are able to anonymously provide and receive “surreptitious support” and generate a collective politics about the hidden truths of pregnancy, birth, and mothering as a means of challenging biomedical knowledge. Other researchers have likened the combination of online self-­help and social support as “virtual community care” derived from the notions of a virtual community in cyberspace and community care in social policy (Burrows et al. 2000). Elsewhere I have written of the online sites in Thailand supporting ­people undergoing IVF treatment (Whittaker 2015). Thai-­language sites such as clinicrak. com (Love Clinic), weneedbaby​.­com, babyfancy​.­com, babyovutest​.­com, and try2conceive​.­forumup​.­com offer some of the only means for infertile Thais to exchange information and experiences with each other. I observed that such sites ­were crucial forums for “cyber biosociality,” allowing ­people to find support and advice, question medical authority, seek alternate therapies, and develop new subjectivities. Similarly, in this study ­there are several surrogacy-­specific sites aimed at intended parents. They are all characterized by affirming images: pictures of

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smiling and content babies, surrogate tummies swelling with a pregnancy, joyous families, and occasionally a ­family photo­graph that includes the surrogate. One such site is www​.­allaboutsurrogacy​.­com, a US site that offers information and support through a range of forums for surrogates, intended parents, and egg donors, including a closed forum on international surrogacy “where friendship blossoms and families bloom.” The site’s forums include discussion of the surrogacy pro­cess, warnings for intended parents and surrogates, tips for surrogacy arrangements, discussion of surrogacy for alternate families, parenting tips, discussion on multiple births, and a Q&A section. Like many such sites, on All About Surrogacy the lines between education, advocacy, and marketing are blurred. The site is sponsored by and includes advertising for surrogate brokers and clinics. Other sites include the US-­based www​.­fertilethoughts​.­com​/­forums​/­surrogacy​/­, “supporting your ­family building dreams.” Run by FertilityAuthority​.­com, it describes itself as a “comprehensive, interactive online network for ­women and men seeking fertility and infertility information, advice, exclusive pricing and appointments.” Although the name suggests that some in­de­pen­dent regulatory authority is involved, the website is commercially owned by the facilitation com­ pany Progeny and acts as a portal for US c­ ouples to search for clinics in their state (and presumably clinics pay to advertise on their site) and includes patient care coordinators who “are former infertility patients across the country, who know the fertility clinics in their area and are a­ dept at matching patients with the right doctor for their needs.” It offers threads addressing a range of questions posted by intended parents, including discussions of surrogacy in Greece, Ukraine, Rus­sia and Mexico, as well as LGBTIQ sites and one for HIV-­positive c­ ouples. Sites specifically aimed at the LGBTIQ community include http://­www​ .­proudparenting​.­com​/­, a UK site that covers a range of same-­sex and single parenting issues, and gaydadsaustralia​.­com​.­au​/,­ which supports gay men who are planning to become or are already parents. This site includes an active discussion list as well as information, books, resources, films, and links to useful information and agencies. In Australia, three sites are central resources for ­people considering surrogacy. One is Fertility Connections Australia (www​.f­ ertilityconnections​.­com​.a­ u), which describes itself as a support forum for Australian intended parents, surrogates, and egg and sperm donors and which, in March 2017, boasted 1,675 members and over 500 topics about which ­there ­were over 5,000 posts. As noted in chapter 3, Surrogacy Australia (www​.s­ urrogacyaustralia​.o­ rg​/­), a nonprofit organ­ization for Australians seeking surrogacy, provides information for ­those trying to arrange surrogacy within Australia, while Families through Surrogacy (www​.­familiesthrusurrogacy​ .­com​/)­ provides a forum for intended parents seeking surrogacy internationally. Its site contains information on the ­legal status, agencies, clinics, and hospitals for surrogacy in Laos, ­Kenya, Cambodia, India, Ukraine, Canada, Georgia, Greece, Nepal, the United States, Mexico, and the United Kingdom.



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In her research on online communication between US surrogates and intended parents on the site surrogacymomsonline​.­com, Zsuzsa Berend (2016, 5) describes the site as a “collective internet-­based effort to create surrogates as well as surrogacy.” This site allows for direct communication between surrogates and intended parents, unmediated by agencies or facilitators. Surrogacy-­related online communications “play a major role in propagating surrogacy” (27)—­enabling surrogates and intended parents to talk to each other online about the social, financial, ­legal, and emotional aspects of surrogacy, so “they also learn what they should want to know.” Berend describes this as a site creating a community of surrogates with a common sense of identity and shared characteristics. She identifies how digital technologies provide strategies by which surrogates may connect with o­ thers, many engaging for years on the site and forming a range of real-­life relationships. Yet, as Johnson (2014a) argues, the romantic concept of “community” often promoted in ­these websites implies open sharing, which does not always occur. Further, the majority of ­people on forums and chatrooms merely read them rather than interact with ­others. For this reason, she prefers the term “surreptitious support” to describe the invisible interactions, advice, and reassurance derived from ­these sites. Within forums, Facebook sites, and chatrooms on international surrogacy, ­going overseas to pursue surrogacy becomes “naturalized” (Lock and Kaufert 1998), legitimized, and supported as an unquestioned part of p­ eople’s reproductive lives. Yet ­these sites have a po­liti­cal ele­ment as well, providing foci for biosocial solidarity. Rose and Novas (2005) define biosocial groups as entailing a par­tic­u­lar relationship with the state—in this regard, online sites for surrogacy tend to define themselves as spaces in­de­pen­dent of any single state, encouraging international surrogacy through the circumvention and often defiance of national ­legal systems. Usually closed sites, they exist away from the scrutiny of authorities (and researchers) as spaces where ­people can anonymously describe their desires, fears, and plans. They also act as “echo chambers,” affirming and justifying the practice of international surrogacy to an audience ­eager to find support. Aihwa Ong (2003) has suggested that cyberpublics may serve to deepen rather than reduce inequalities, for instance, by entrenching existing social divisions. For example, surrogacy cyber communities can view themselves as pitted against uncaring legislative restrictions, and as “reproductive exiles,” entrenching a view that they are forced to leave their countries to seek what other ­people take for granted—­the ability to form a ­family. However, for ­people within restrictive, conservative social settings, or restrictive ­legal environments, such forums and sites have positive effects; they provide the only nonprofit information enabling intended parents to explore the possibilities of forming a ­family through surrogacy. For example, Mariano, Yeoh, and Cheng (2017) describe how Singaporeans frequent transnational internet forum threads like the ones in Singaporemotherhood​.­com as well as Singaporexpats​.­com: ­these places allow them to virtually meet ­people who are knowledgeable

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about procedures such as egg donation, sex se­lection, and surrogacy, which are banned in Singapore. Within such forums, ­there is an implicit social acceptance—­ what Mariano, Yeoh, and Cheng describe as “zones of licitness”—­geared for third-­party reproduction. In her work on Australians traveling to India for surrogacy, Michaela Stockey-­ Bridge (2017) also notes the flip side of the biosociality of chatrooms, forums, and Facebook sites: the “gossip” traded about clinics, facilitators, exploitative surrogacy brokers, unscrupulous doctors, and criticisms of other intended parents. But online critique may also be useful: in chapter 4 on facilitation, I note how controversial incidents involving facilitators spurred a flurry of gossip and abuse on internet sites, serving as precautionary tales of malpractice by clinics or facilitators. The cyberpublic is also divided at times according to intended parents’ preferred destinations, types of infertility, basis of sexuality, and other issues. Elise commented on the micropolitics of the online forums: It gets into lots of po­liti­cal t­ hings that have gone on, and that’s why t­ here’s divisions ­because ­there’s so many po­liti­cal ­things that have gone on on ­those forums, and look I’m a very newcomer to t­ hose forums. My d­ aughter was ten months old before I even joined one. So, like I say, I’m a ­really newcomer to t­ hose forums and ­they’d obviously been operating, but ­there’s lots of unscrupulous ­people out ­there. That when ­people are desperate and in despair that ­people seize on all the time, and so ­there’s some p­ eople on t­ hose groups and forums just preying on the innocent and getting kickbacks and commissions and setting up as agents, and I think that’s the division. The p­ eople that go with agencies and the p­ eople that go direct. ­There’s a big division between t­ hose two groups and then t­ here’s also a division between the p­ eople that think they know every­thing ­because they w ­ ere h­ ere [Thailand] before the crackdown and then ­there’s the ­others that have been ­here a­ fter the crackdown, and then t­ here’s ones that think that they own certain parts of the community. Like it’s just, ugh. I’m just an outsider that ­will only comment if somebody looks like ­they’re in dire straits and needs some accurate information.

Such descriptions suggest a more fractured sociality, which may create disconnections as much as connections between ­people. They play a role not only in warning intended parents about poor practices in the industry but also in defining appropriate intended parent be­hav­iors. They constitute a means of socializing intended parents, as well as articulating their fears and uncertainties, especially over the ethics of surrogacy. For example, welcomingaheartbeat​.b­ logspot​.­com​.a­ u​/­, a blog written by an intended parent, which ended in 2016, detailed the experiences of the writer and grief over her reproductive loss, while also detailing the sometimes vicious trolling and abuse that she faced for describing her experience of international surrogacy.



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Mediating the Pregnancy and Electronic Couvade The experience of the surrogate pregnancy itself is mediated by digital technologies. Digital technologies facilitate and mediate the transfer of information between the clinic, facilitators, and intended parents, and communication between the intended parents and surrogate. In many cases, it is only through texts, Skype, and emailed scan results that intended parents have any relationship at all to the pregnancy and surrogate prior to the birth. I conceive of ­these technologies as a digital umbilical cord linking the intended parents to the pregnancy. As Donna Haraway notes, it is through such technologies that pregnancy becomes integrated into a “high-­tech view of the body as a biotic component or cybernetic communications system” (1990, 210–211). Since it involves IVF pregnancies, surrogacy is technologically intensive throughout the pro­cess, including the initial testing of sperm and ova and screening of the surrogate; hormonal injections to prepare the surrogate’s cycle and endometrium for transfer; pos­si­ble vitrification; if necessary, intracytoplasmic sperm injection (ICSI) procedures involving the manipulation of the sperm; ge­ne­ tic testing of the embryo with PGD/S before transfer; and then pregnancy tests, a battery of urine and blood tests, and, in Asian surrogacy, usually a caesarean birth and a stay in newborn intensive care.1 In international surrogacy, intended parents’ need for constant updates and demand for assurance as to the pro­gress of their pregnancy result in further intensification of the technologies used to monitor the pregnancy and an increased invasive burden placed upon the pregnant surrogate. For instance, all the surrogates I interviewed in Thailand had at least monthly scans, the results of which ­were sent to the intended parents; some requested further scans when they needed reassurance from the clinic. All intended parents waited anxiously for their scans and test results to arrive. As one facilitator noted, “[I] even send a CD from all the scans. I send them over to them to see. You see your baby! And normally they [say,] ‘Oh!’ and they cry.” The relationship between ­these visualizing technologies and intended parents is intense and emotive. Photo­graphs and scans ­were crucial to them announcing their pregnancy to f­ amily and friends: “So we had photos of the ultrasound scans and we had photos of the surrogates and egg donors which we showed them just to help explain what actually was happening.” Hence scans are a means through which they affirm their identities as parents-­to-be, but also a means through which the fetus is depicted as an in­de­pen­dent, autonomous being that is separate and separable from the surrogate. Some feminists have criticized such fetal imaging as degrading the pregnant ­woman in reducing her to a mere passive vessel for the fetus, a “maternal environment”; in this case, it is the distancing of the pregnancy from the surrogate that is the desired outcome. As Rosalind Petchesky (1987, 268)

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writes, “Fetal imagery epitomizes the distortion inherent in all photographic images: their tendency to slice up real­ity into tiny bits wrenched out of real space and time.” They “help determine the current clinical view of the fetus as ‘patient,’ separate and autonomous from the pregnant ­woman” (271), in this case the surrogate. As Petchesky notes, the technology that makes the baby or fetus more “vis­i­ble” renders the ­woman invisible (277). Such images also assert the obstetrical management of the pregnancy as a calculable, predictable pro­cess able to be monitored and controlled by technology. They carry a range of meanings, representing at once “evidence” or a “report” of the pregnancy for intended parents and clinicians; a form of surveillance and potentially social control of the surrogate, ensuring that she does what­ever is required to ensure the healthy development of the fetus; and a source of fantasy about the f­ uture child-­to-be (Petchesky 1987, 274). Th ­ ese images extend the medical gaze to the intended parents, in that the intended parents, not the surrogate, receive the scan results. For intended parents, such scans reinforce the role of the surrogate as a container, carrier, or someone merely “renting” out her empty womb space. In turn, intended parents reinforce their status as agents and parents-­to-be who have made the pregnancy a real­ity. Their receipt of the scans and ability to demand and pay for more are a means of asserting their agency and status as parents. The scans become fetishized: named, stuck into baby ­albums, passed around to ­family and friends, posted on Facebook pages, repeatedly watched on the computer—­material evidence of power­ful feelings of attachment to the baby-­ to-be. They enable intended parents to become socialized into their f­ uture role as parents. At an emotional level, in the case of intended parents with long personal histories of failed IVF attempts and miscarriages, scans not only affirm the real­ity of the pregnancy but also provide a focus for their anxiety. For instance, Elise described her mistrust that the scans sent by her clinic ­were real: “It’s hard to explain, b­ ecause it was a very surreal feeling, and b­ ecause it’s definitely an out-­of-­ body experience, ­you’re sort of looking at ­those scans thinking, is it r­ eally my baby? Is it r­ eally happening? Is this just a scan they send to every­one that’s ­going through ­there? . . . ​But then you saw the progression shots of your surrogate too, and you could see that somebody was definitely progressing through a pregnancy and a very healthy looking person.” Her sense of the out-­of-­body nature of the intended parent’s experience is an accurate description of the role of intended parents throughout an international surrogacy pregnancy: disembodied yet anxiously bonding, involved yet distant, and in constant need of affirmation that every­thing is all right through test results, scans, and “progression shots” of the surrogate’s pregnant belly. As Elise noted, “So while you sort of go, ‘Yay!,’ it’s sort of also, ‘Okay let’s get to the next. I need to hear a heartbeat. I need to get past that nine-­week horror period. I need to get into the second trimester and then I’ll feel a ­little bit more.’ . . . ​It’s anxiety the w ­ hole time I think.”



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As gay men, Joseph and his partner had no prior experience of pregnancy and ­ ere dependent on an online app and other sites to educate themselves about the w normal progression of pregnancy. The monthly scans they received allowed them to see the development: So during the pregnancy we got scans e­ very four weeks so we could keep an eye on every­thing ­going on. Again, I guess we researched online about what every­thing meant about the blood tests, the tests that are done at the beginning about the pregnancy, checking for the heart rate and all of the usual timelines. That was all self-­ sought information online I guess. Q: [­Later in the interview] So the agent w ­ asn’t passing on information or anything e­ ither? No, I mean, they w ­ ere sending through the scans and some l­ ittle comments about anything that’d been said at the scan and that kind of t­ hing but we w ­ ere generally the ones who ­were worried about what to look for.

Peter and his partner w ­ ere concerned when the scan was blurry so they could not quite make out the image. As Peter explained, Then a l­ater scan, l­ater in the pregnancy, the 3D scan, they w ­ ere harder b­ ecause ­these ones w ­ eren’t clear. My other friends have had r­ eally clear scans. That actually worried us ­because we looked at some of the limbs and hands and feet and thought, “They d­ on’t look like t­hey’re formed properly.” And they [the clinic] ­really dropped out of communication on that. We ­were asking them, “Can we do another scan?” All we ­were getting back was, “Every­thing’s okay.” We ­weren’t seeing that. Q: So you w ­ ere looking at ­these fuzzy images and not ­really being able to read them and not getting a lot of reassurance? That’s right, and knowing actually that the doctor ­hasn’t necessarily seen all the images. So it was quite difficult to explain that we ­really w ­ ere quite concerned about it and wanted to see it again. Anyway, we ­were up to eight months and we had to spend that last month saying, “­We’re clearly not ­going to get an answer on this. If ­there is an issue, we just now need to prepare ourselves for what­ever that’s g­ oing to be.”

His statement that the “doctor ­hadn’t necessarily seen all the images” affirms that ­these scans are undertaken not for diagnostic purposes but to reassure intended parents and give them material evidence of the pro­gress of the pregnancy. It also betrays the potential for mistrust in the relationship between intended parents and clinics. This is exacerbated by communication difficulties and the knowledge of the high rates of miscarriage, premature birth, and neonatal death experienced by other intended parents.

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Among my in­for­mants, when something did go wrong, a number of intended parents spoke of the frustration and distress they experienced whenever the virtual umbilical cord was severed due to limited or no communication from clinics or facilitators. For example, as described in chapter 2, John and his partner Jim related their trauma at finding out about a second trimester miscarriage via an impersonal email: “It was a very poorly worded, barely En­glish email from somebody in a dif­fer­ent country . . . ​it was very sad.” Likewise, Gordon noted that when their surrogate experienced a miscarriage they received ­little information: “The one-­word email . . . ​that’s what we used to get: ‘Pregnancy ­didn’t take. Regards.’ ” He noted, “It’s worse overseas. ­You’ve got zero control. You know, you think that it ­won’t be an emotional rollercoaster ­because it’s in someone’s hands . . . ​it’s never in anyone’s hands. If anything, you know, ­you’re waiting on an email or a text message or what­ever . . . ​it’s . . . ​you know.” Despite the invisibility of the surrogate ­mother’s body in scans and test results, some intended parents do try to reassert the surrogate’s bodily experience by following apps describing the weekly maternal experience. Joseph and his partner attempted to follow the lived experience of pregnancy via an app on their smartphones that provided weekly notices, which allowed them to empathize with the surrogate (albeit in a limited fashion) as well as producing a form of electronic couvade or “e-­couvade” through which they could participate in the bodily discomforts and pleasures of the pregnancy. Johnson (2014b) has found that pregnancy apps and other digital devices have become very commonly used in pregnancy. Writing of first-­time m ­ others, she suggests t­hese technologies encourage enactments of subjectivity and technologies of the self that combine the social ideal of the expert patient with ideologies of mothering. Apps are claimed to be empowering technologies, enabling ­women to experience some control over their experiences and to enact the expert patient role. They also function as a display of the ­woman’s competence as a good mother-­ to-be. Johnson claims that ­these apps represent the unborn as already a baby (or child), with implications for the be­hav­ior of pregnant w ­ omen (346). In the case of intended parents like Joseph and his partner, the “tidbits” of information supplied by an app encouraged them to feel connected to the surrogate’s experience, prepared and positioned them as experts when questioning the clinic, and socialized them into the role of parents. The enmeshing of affect with technology in e-­couvade finds its equivalent in Amrita Pande’s (2015) descriptions of the use of “dummy tummies,” fake pregnancy tummies worn by intended m ­ others and enthusiastically described by some intended ­mothers as a way of bonding and attaching with the real pregnancy. She also describes “sound b­ elts” used by some intended parents to rec­ord m ­ usic and their voices to be played to the gestating fetus in the womb of the surrogate m ­ other. They



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demonstrate the desire and compulsion to emotionally attach to the growing pregnancy.

“Kin ­L abor” through Communication Technologies Communication with clinics and surrogates was often highly problematic, especially when it involved the need to translate across linguistic divides. For a number of my intended parent in­for­mants, any communication with the surrogate was mediated via the internet and/or the facilitator, who translated any questions to the anonymous surrogate. Any direct communication with the Thai-­speaking surrogate was translated through Google Translate, often resulting in confusion. Peter commented, Well she [the surrogate] used Google Translate, but when we got t­ here we discovered that Google Translate r­ eally w ­ asn’t the most effective t­ hing. So it turns out they [Thais] compound words, where Thai has words made up of lots of other words. So Google Translate separates all t­ hose words out and makes it hard to understand. So we actually used the agent. She supported us and would pass ­things on or pass ­things back. I guess the communication issue was a major one for us in ­going overseas. That was the Google Translate experience. Th ­ ere ­were some horrendous moments, but we spent a lot of time and we got some translations done while we ­were ­there, so we could go back and forth.

­ ese technologies are crucial in the “kin ­labor” (Pande 2015) involved in transTh national surrogacy, by both surrogates and intended parents—­the creation and maintenance of quasi kin relations between them. Since her return to Australia, Elise has mediated her communication with her surrogate via a computer translator. ­After realizing the faults with Google Translate, she deci­ded to use a dif­fer­ent program: “I’ve got an online translator which makes a l­ittle bit more sense. It ­doesn’t always translate exactly what I want to say but if you keep sentences very short, almost the same ­things get translated, and ­because I’m so pedantic I write it in En­glish, translate it to Thai and then copy the Thai in and see what it says back in En­glish so that I know that I’m accurate.” As a result of the limitations of computer translation programs, if t­ here existed any relationship between the Thai surrogates and intended parents, it was often more a visual relationship or involved only s­ imple sentences conveyed via Facebook, Skype, or email. Primarily, the relationship would involve the exchange of pictures of the child or ­children born through the surrogacy, especially at major milestones such as the child learning to walk and having a first birthday. One

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facilitator told me that she arranges Skype meetings between surrogates and intended parents during the pregnancy if requested and agreed to by the surrogate. For ­these, she acts as translator. The relationship is thus usually mediated by a facilitator, translator, or computer program. Although not allowed to contact her surrogate during her first surrogacy pregnancy, Elise has since tracked down that first surrogate through Facebook. “We’ve contacted each other on Facebook since and ­we’ve stayed in contact that way.” She keeps an active Facebook account, regularly posting photo­graphs of her ­family to share with her Facebook “friends.” In her case it was only through the crisis that occurred ­after the ban on surrogacy in Thailand that she and her partner ­were able to find out who their surrogate was and then continue to pay her and ensure the pregnancy was progressing well: “We became close to her and now w ­ e’re friends with her d­ aughter on Facebook . . . ​but we missed out on, like, the first seven months [during the surrogacy when they did not know her name], so yes, ­we’re excited about it.” Facebook also facilitated contacts between intended parents who, as ­will be described below, met ­either through internet forums or at events such as the Surrogacy Australia conference. The importance of t­ hese virtual links was highlighted by Peter when he described his use of a Facebook group to set up a face-­ to-­face meeting of intended parents in Bangkok while he and his partner waited for their exit procedures to be finalized: “While we ­were in Thailand, we connected with quite a few. So ­there was a cluster of ­hotels around the embassy where every­ one was staying and, on the w ­ hole, most p­ eople t­ here wanted to catch up with ­others. Some ­didn’t, they just wanted to duck in and out and not bother with social ­things, but a lot did. So we w ­ ere catching up e­ very second day and one of the weeks ­there was a gathering that was just or­ga­nized by someone—­‘meeting at this pub for lunch’—­and t­ here ­were twelve of us ­there. We just all caught up and we just help each other out a bit. It’s good.” The virtual relationships developed online by Peter transformed into real-­life socializing—­something rarely experienced due to the anonymity, distance, and secrecy often involved and sometimes desired in international surrogacy. For Peter, t­ hese connections w ­ ere facilitated by the technology but also the fact that a strong cyberpublic has developed among intended parents in Australia linked into organ­izations such as Surrogacy Australia and Families through Surrogacy.

Conclusion Digital technologies interact with, mediate, and promote international surrogacy. They are integral to this new form of reproduction. The internet allows facilitators and clinics to market their ser­vices to a global audience of intended parents, and many of their websites convey simplistic understandings of the ­legal, social, and ethical situations in vari­ous countries. Such websites promote not only the possibility of international surrogacy, clinics, and facilitators, but also certain imagi-



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naries of the destinations they depict. In the case of Thailand, they depicted it as a nurturing, friendly, technologically savvy destination with an emphasis upon exotic spirituality and Buddhist tolerance. Digital technologies are integral to the transfer of biomedical information and nonmedical advice to intended parents throughout an international surrogacy pregnancy. Scans and test results from clinics act as virtual umbilical cords linking intended parents to the pregnancy. They allow intended parents to visualize and fantasize about their baby-­to-be, and provide visual evidence of the pro­gress of the pregnancy. One clinical consequence of the fetishization of scans is their overuse. When international surrogacy was ­legal in Thailand, pregnant surrogates ­there generally had at least monthly ultrasounds—­more than is normally required for diagnostic purposes. During the pregnancy and afterward, digital technologies also mediate communication across language barriers (albeit not very successfully) and allow for interactions among facilitators, clinics, surrogates, and intended parents via Skype, chatrooms, or email. The internet has spawned a “surrogacy cyberpublic,” exchanging information, providing “surreptitious support” and forms of biosocial advocacy as its members subvert national restrictions and regulations, and lobby for change. P ­ eople with intractable forms of infertility and o­ thers such as singles and gay c­ ouples now have the technological means to express their desire for c­ hildren and join an inclusive global community that claims repre­sen­ta­tion for a multitude of o­ thers. Websites allow the false amplification of the power of a few individuals who are able to proliferate and valorize certain repre­sen­ta­tions and discourses about international surrogacy. This has both positive and negative effects. Sophia Johnson (2014a) suggests that virtual mothering publics have the potential to play a positive role in laypeople’s re­sis­tance to traditional medical authority. In the case of international surrogacy cyberpublics, the proliferation of information about accessing international surrogacy disrupts and subverts l­egal restrictions on surrogacy, and offers a counterpublic discourse through which alternate ­family formations such as ­those of gay and single parents find support and validation. Th ­ ese internet sites also encourage the creation of new identities and imaginaries for parents, and provide them with access to both medical information and nonmedical narratives on how they might be realized. This cyberpublic positions intended parents as agents and self-­managed consumers who are able to choose from a range of options—­ representing another manifestation of the responsibilization (Crawford 1980) of the patient prevalent in postmodern socie­ties. Although the internet and digital technologies enable the development of a cyberpublic joined across national bound­aries, limitations to this form of cyber biosociality are evident. First, the anonymity of the internet is both a strength and weakness. It allows p­ eople to self-­educate; compare and assess destinations, clinics, and facilitators; and receive surreptitious support for their decision as intended parents to go overseas for surrogacy. But it also feeds into the hope of intended

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parents and builds expectations and a sense of entitlement. As ­will be seen in ­later chapters, it can also have the effect of promoting and facilitating undesirable, even criminal uses of surrogacy at the same time as it can facilitate positive interactions. It provides a platform for deceitful depictions of ser­vices, bloggers paid to post complimentary testimonials, misinformation, and an unquestioning echo chamber that decries self-­doubt or ethical concerns. At the same time, t­ hese sites tend to validate dominant discourses of the importance of f­ amily and the joy of biological parenting with no consideration of other ways to nurture ­children.

6 • ROTTEN TR ADE

With the growing public ac­cep­tance of assisted reproduction, from 2012 the industry grew rapidly in Thailand and saw the development of a range of practices that took advantage of the loose regulatory framework. From being a discrete and minor aspect of the broader assisted reproductive travel undertaken in Thailand, Thai surrogacy became openly advertised, promoted, and profitable. Although most surrogacy taking place in Thailand through this period was arranged by facilitators and clinics with due care to the parents, surrogates, and ­children involved, the inadequacies of the regulatory framework came to prominence through a series of controversies that revealed the presence of an illegal trade in surrogacy and a range of other practices that infringed the spirit, if not the letter, of the Thai Medical Council guidelines. At the height of the boom in the surrogacy industry in Thailand, a number of cases revealed the extent to which the un­regu­la­ted market was providing opportunities for dubious clinical practices, bureaucratic sleights of hand, and even criminal trafficking of w ­ omen to satisfy the demand for their profitable reproductive capacities. The economist Jagdish Bhagwati (2002) coined the term “rotten trade” to describe any trade in “bads” such as arms, stolen goods, and hazardous and toxic products, or traffic in ­humans, babies, bodies, and slaves. Revelations of the extent of this “rotten trade” in surrogacy eventually led to the banning of international surrogacy in Thailand. As a result, a number of companies moved their operations to other locations in Southeast Asia, as w ­ ill be described in chapter 8, with most moving to Cambodia and l­ ater Laos, where a lack of regulations provided a l­ egal lacuna for them to operate. In this chapter I trace a series of cases that reveal the existence of or­ga­nized exploitation within the surrogacy trade in Southeast Asia and the consequences of poor regulation for vulnerable w ­ omen, ­children, and intended parents. ­These stories of criminal exploitation and associated harms sit uncomfortably alongside the image of surrogacy projected by most clinics and agencies. Intended parents find any suggestion that they might be supporting the exploitation of ­women and ­children through their actions highly insulting, and in providing this account I am not suggesting that all surrogacy arrangements are alike. However, the 131

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existence of documented criminal exploitation leads to difficult questions around ­whether the demand for surrogacy and the mass disruptive commercial trade in Asia that it has spawned have inevitably attracted and created the conditions for such rotten trade. It might be argued that all cap­i­tal­ist relations involve the same potential for gross exploitation. All parties involved in surrogacy—­ including intended parents, clinics, agencies, and regulators—­need to be aware of the potential for such abuses. In this chapter, I describe documented cases that reveal the existence of criminal and ethically dubious practice in Thailand. Following this, in the next chapter I detail the case that eventually led to the demise of the surrogacy trade in Thailand—­the “Baby Gammy” case—­and examine why it, in par­tic­ul­ar, was the catalyst for regulatory change. The final chapter traces the reactions of the industry to subsequent bans on surrogacy in a number of countries across the region.

Surrogacy and Exploitation Early in the discussion of reproductive technologies, feminist scholars warned of the potential for vari­ous forms of exploitation. Thirty years ago, in her book The ­Mother Machine (1988), Sonia Correa reported on the “baby farms” of Sri Lanka and Colombo, where poor w ­ omen w ­ ere paid to have babies who w ­ ere then offered for sale or adoption in exchange for money to privately operated ­children’s homes. In 1988, in Guatemala, “gestation h­ ouses” w ­ ere producing babies for sale to North Americans and Eu­ro­pe­ans. Correa feared that gestational surrogacy could readily lend itself to the similar exploitation of ­women and ­children. With prescience Correa (1988, 144) foretold, “As surrogacy is increasingly combined with other new reproductive technologies, as in surrogate gestation, where the so-­called surrogate’s own eggs are not used and where she serves as a mere environment for growing the foetus, the number of w ­ omen used in systems of surrogacy ­will expand.” She directly compared reproductive trafficking to sexual trafficking. She noted that “the extent to which reproductive trafficking is linked with ­actual sexual trafficking networks is unknown and has not been addressed.” This statement remains true t­ oday. Correa also criticized the United States for exporting an image of surrogacy “as work done by happy and altruistic w ­ omen who do it not only for the money but for the joy they give to ­others. This liberalism, called reproductive choice, masks the systematic and or­ga­nized nature of an international industry that traffics in the bodies of w ­ omen” (144). Similarly, Rothman (1988, 100) wrote of f­uture “baby farms, with white embryos grown in young and Third World w ­ omen,” and Raymond (1995) presaged the use of third world ­women as gestational surrogates. Although I would criticize such analyses for their lack of a nuanced analy­sis of international surrogacy, and I do not think that one can make easy parallels between surrogacy and prostitution, t­ hese writers did highlight the potential for gross exploitation.



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In her work on the international trade in ova, Michal Nahman (2011) described how companies avoided moving ­women and hence infringing trafficking provisions by “reverse trafficking” ova extracted from Romanian ­women. Nahman identified how, instead of moving ­women to provide ova, Israeli doctors traveled to a Romanian clinic to extract ova for profitable export back to Israel. Given the context of sharp socioeconomic inequalities between the ­women involved, Nahman suggested that while the exact letter of anti-­trafficking laws may have been circumvented by this trade, their spirit was not. She notes how within this trade the tissues, embryos, ova, and recipients ­were prioritized over the well-­being of the oocyte seller. Further, any connections between the Romanian w ­ omen and the eventual recipients remained invisible. She suggested that “oocyte sellers and recipients are linked in a kind of transnational kinship of visibility and invisibility, where blood and tissue, capitalism and biomedicine connect them” (632). ­These vis­i­ble and invisible connections between the legitimized practices of surrogacy and the potential “rotten trade” are illustrated in a series of cases that took place in Thailand and more recently Cambodia. The first case, of the com­ pany Baby 101 in Thailand, resulted in a prosecution for trafficking. The second case, involving serial surrogacy of a Japa­nese businessman that did not result in a prosecution, brought the surrogacy industry into disrepute in Thailand and was pivotal in the eventual banning of surrogacy ­there. The third case, involving an Australian facilitator jailed for trafficking in Cambodia, highlighted how the regulations governing the industry ­favor the transfer of foreign ­women to act as surrogates rather than local ­women. As w ­ ill be described in the final chapter, the model of surrogacy that now exists in Asia f­ avors the movement of surrogates to circumvent local restrictions. Such movements of ­women are the latest in a long history of mobility for domestic work, marriage migration, and sex work in Southeast Asia. This mobility places surrogates, embryos, and ­children in states of greater vulnerability to exploitative practices.

Baby 101: The Trafficking of ­W omen and Babies ­ ere have been several documented cases of international trafficking for surroTh gacy in a number of countries (Pascoe 2012; National Rapporteur on Trafficking in ­Human Beings 2012). Trafficking in persons (TIP) was recognized within one of the three supplementary protocols to the UN Convention against Transnational Or­ga­nized Crime (United Nations Office on Drugs and Crime 2004). The Protocol to Prevent, Suppress and Punish Trafficking, a supplement to the convention, defines TIP as a form of transnational or­ga­nized crime and calls for the adoption and enforcement of anti-­trafficking legislation by domestic law enforcement bodies as well as international cooperation in investigating and prosecuting ­human trafficking (Chuang 2006). Article 2 of the protocol (United Nations Office on Drugs and Crime 2004) states,

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Trafficking ­shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other means of coercion . . . ​of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation ­shall include, at a minimum, the exploitation of the prostitution of ­others or other forms of sexual exploitation, forced ­labour or ser­vices, slavery or practices similar to slavery, servitude or the removal of organs.

One critique of the protocol is its emphasis on sex trafficking and sexual exploitation (Milivojevic and Pickering 2013), influenced by historical concerns and debates about prostitution. It is unclear w ­ hether this protocol and local legislative responses ­will be appropriate for addressing the organ­ization of surrogacy, especially the movements that now characterize the industry in Southeast Asia (as I discuss in chapter 8). Defining the movement of w ­ omen for surrogacy as trafficking requires the definition of the conditions of the ­women as surrogates as ­either forced, involving deprivation of liberty such as the removal of passports, or slavery, such as debt bondage. The issue at stake is w ­ hether or not w ­ omen as surrogates are defined as ­free agents or ­whether their agency is restricted by the coercive conditions of their work. A highly publicized trafficking case in Thailand involved the Thai-­based Taiwanese firm Baby 101.1 On August 24, 2009, the Thai newspaper the Nation ran a story warning that Baby 101 was seeking infertile clients in Taiwan, where surrogacy was illegal. The story detailed the advertising on the com­pany’s website and carried a statement from the Thai Medical Council that ­there was no regulation allowing a private com­pany to seek out and hire surrogate ­mothers, but that the council was aware of several companies engaging in such activities, “with most of them getting the procedure done at medical schools” (Anonymous 2009). In January 2011, however, following a phone call to the Viet­nam­ese embassy by one of the female surrogates involved, Thai police raided the premises of Baby 101, identifying the or­ga­nized trafficking of w ­ omen for surrogacy. At the time of the raid, thirteen Viet­nam­ese ­women w ­ ere rescued and a further two ­were identified, one who had just given birth and was at a hospital. The w ­ omen ­were held in two h­ ouses in Bangkok during their surrogacy, and apparently they had had their passports confiscated. Eleven ­women said that they had volunteered to work as surrogates for US$5,000 per surrogacy, while four w ­ omen reported that they had been tricked into the work. Police arrested four Taiwanese, one Chinese, and three Myanmar nationals, who ­were all charged with illegally working in Thailand. One thirty-­five-­ year-­old Taiwanese w ­ oman was charged with h­ uman trafficking. Seven of the surrogates ­were pregnant, one with twins. Two of the w ­ omen, each eigh­teen weeks pregnant, sought to abort their pregnancies but w ­ ere refused permission to do so. All the ­women w ­ ere detained at the Kredtrakam Protection and Occupational



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Development Center (Anonymous 2011). The Medical Council commenced an investigation into the two doctors and two hospitals involved in the case. ­Those responsible for artificial insemination, including personnel and institutions, faced prosecution by the Thai Medical Council for unethical conduct, which carries a potential penalty of imprisonment for up to one year and a fine of 20,000 baht (Alliance Anti Trafic [AAT] 2011a, b). The Viet­nam­ese ­women w ­ ere returned to Vietnam to give birth, u­ nder the auspices of vari­ous protection agencies, and several continued to negotiate with the surrogacy ring to be paid for the c­ hildren they had birthed. On September 1, it was agreed that the babies would be sent to their biological parents (no DNA test required) instead of offered for adoption. A ­ fter protracted negotiations and ­legal pro­cesses, at the end of November 2011, Hanoi’s ­People Committee Department of Justice signed an agreement to allow the eleven babies involved to be returned to their eight biological families. The Department of Immigration issued passports on December 2, and the eleven babies arrived safely in Taiwan to be handed to their biological parents (AAT 2012). The Thai Department of Special Investigation was instructed to shut down the Taiwanese com­pany’s website (Sarnsamak 2011). Apart from Bangkok, the com­pany had offices in Phnom Penh in Cambodia and Ho Chi Minh City in Vietnam. According to registration papers posted on the site, the com­pany “Centre of surrogate maternity ‘Baby 101’ ” was registered with the Rus­sian Federation in Vladivostok. On Baby 101’s Mandarin and En­glish websites, the com­pany described itself as a “eugenics surrogate” com­pany: “We could create the finest procreation condition for your baby, mainly through the efficient embryo refining only the superior left for implanting,” and “guarantees no connection between consignor (client) and surrogate ­mother” (see figure 6.1). The surrogacy ser­vice from egg and sperm donation to the delivery of the baby was advertised at US$32,000, plus other pos­si­ble expenses such as the intended parents’ travel to Thailand. The website carried a disclaimer that “Babe101 Not Use Thailand surrogacy ­mother. The protection of the law is absolutely [sic]. Hundred per cent peace of mind you have no worries.” Presumably, by using non-­Thai citizens as surrogates, the com­pany was suggesting that it could avoid any pos­si­ble challenges u­ nder Thai law. On a page titled “Advantage to hire surrogate m ­ other,” the com­pany listed a range of reasons to undertake surrogacy. Written in poor En­glish, t­ hese included reasons related to eugenics, outlining the superior ­children that surrogacy produces and the possibility for a w ­ oman “with no time for pregnancy” to continue her ­career without interruption and without fear of the bodily changes associated with pregnancy. The com­pany also appealed to Confucian values surrounding the importance of producing descendants.2 Photo­graphs of young, attractive “Oriental” ­women around a pool and “Caucasian” ­women at another location ­were displayed on the menu page of “ova and sperm donors” available. Many of the donor

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Figure 6.1. The Baby 101 website in Mandarin. (Copyright owner no longer available.)

photo­graphs w ­ ere attractively posed, and sometimes full body shots ­were used, enabling prospective clients to see the donor’s figure. The use of a “menu” is reminiscent of similar arrays used in international marriage brokerages and escort agencies, and speaks of a continuum of trade in w ­ omen’s bodies. On June 22, 2012, the Thai Primary Court found all five defendants in the case guilty as charged. One Taiwanese w ­ oman was sentenced to 5.3 years’ imprisonment for ­human trafficking, conspiracy to detain/confine other persons, and working in the country without a work permit. She was fined 220,000 baht (US$7,040) for hiring illegal mi­grants. Another three Taiwanese defendants ­were



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sentenced to 5.3 years’ imprisonment for ­human trafficking, conspiracy to detain/ confine other persons, and working without a work permit, and a Chinese defendant was sentenced to three months’ imprisonment for working without a permit. The Taiwanese leader of the organ­ization was not charged (AAT 2012; Anonymous 2011). Despite the publicity it generated in Thailand, the Baby 101 case prompted no investigation into the surrogacy industry, which continued to grow, attracting more facilitators and clinics. And although public concerns w ­ ere raised early on about the com­pany’s operations, it was in business for two years with no intervention. The fact that it involved the criminal prosecution of Taiwanese and Viet­ nam­ese nationals did l­ittle to highlight the industry or conditions that made such trafficking a real­ity. ­Little attention was paid to the Thai doctors and hospital involved in the case, who ­were depicted as unwitting collaborators rather than complicit or negligent. The other striking aspect of this case is the registration of the com­pany in Vladivostok—­yet another demonstration of how the manipulation of com­pany registration can allow transnational companies to circumvent local regulations and checks, in this case through registration in Rus­sia. No com­ pany officials ­were prosecuted in Taiwan. This case was described by the press with reference to a common trope in trafficking cases: that of ­women as “victims” being “rescued” by the authorities. Such depictions minimize the agency of the w ­ omen involved, as they are seen as “tricked” or “forced” into the exploitative situation. This is despite the fact that eleven of the Viet­nam­ese ­women in this case testified that they w ­ ere aware they ­were coming to Thailand as surrogates in exchange for US$5,000. Such evidence of ­women’s agency tends to be minimized within accounts by organ­izations like AAT, which was involved in the Baby 101 case. AAT is an organ­ization with offices in Thailand and Vietnam that is primarily involved in cases of trafficking for sexual exploitation and provides what it calls the “Four Rs”—­rescue, repatriation, rehabilitation, and reintegration—­for victims of trafficking and persons involved in prostitution. Unfortunately, this model of the Four Rs is based on the premise that the victim is a single individual and has difficulty recognizing the other ­people affected by surrogacy, such as babies, embryos, and intended parents. When applied to the w ­ omen of the Baby 101 case, the “rescue and repatriation” model resulted in pregnant ­women being unsure of ­whether the intended biological parents of their pregnancies would eventually receive the ­children, ­whether they would receive the payments due to them, or ­whether they would be forced to adopt or care for the ­children themselves. Intended parents in this case faced enormous ­legal uncertainties, and many ­were initially too scared to notify the authorities. The ­children born ­were eventually sent to their intended parents in Taiwan, but faced ­legal limbo. Ultimately, goodwill and consideration of the rights of the ­children concerned intervened in this case and they ­were granted Taiwanese citizenship.

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Framing the Baby 101 case within a trafficking framework that concentrates upon the individuals involved also obfuscates the role of vari­ous state actors in creating the conditions for a com­pany such as this to operate. Taiwanese regulations and citizenship requirements created the conditions for this com­pany to operate. Babies born of Viet­nam­ese ­women in Thailand could receive Taiwanese passports and travel to Taiwan from Thailand, and it was the Taiwanese ban on surrogacy that created the demand for overseas surrogacy.

Asian “Baby Factory” Another case that occurred in Thailand did not result in prosecutions but arguably did involve exploitative practices, and thus highlights the links between the vis­i­ble clinical work of surrogacy clinics and the invisible potential for undesirable outcomes. In August 2014, another story broke in the Thai media of a Japa­nese man, Mitsutoki Shigeta, who had reportedly fathered fifteen babies to multiple surrogate ­mothers in Thailand and had fled the country to Cambodia with at least three of the babies (Rawlinson 2014). This case prompted descriptions of Thailand as a “baby factory” in the Thai press. A raid on a Bangkok condominium on August 5 identified nine babies living with nine nannies (Olarn and Whiteman 2014). As details of the Japa­nese case emerged, it grew more and more bizarre. Staff at one clinic he used, the New Life Clinic, grew suspicious and stopped working with him ­after two surrogates got pregnant and he requested more. The chief executive officer of that clinic was reported in the press as stating, “He said he wanted 10 to 15 babies a year, and that he wanted to continue the baby-­making pro­cess ­until he’s dead” (Halpin 2014). She claimed that the clinic had contacted INTERPOL about the case at the time, although INTERPOL declared having no rec­ord of such a report. Following the birth of another baby in Chiang Rai, the twenty-­four-­year-­old son of a Japa­nese billionaire had fathered at least sixteen c­ hildren through eleven surrogate ­mothers in Thailand (Hawley 2014). The All IVF Clinic involved in his case was closed pending investigation (Gecker and Doksone 2014; Murdoch 2014a). Pisit Tantiwattanakul, the doctor involved, had his case for indictment delayed four times (Anonymous 2015b). Although this case was initially investigated as one of child trafficking and child exploitation for baby selling, organ harvesting, or stem cell harvesting, Shigeta was not charged with any offence (Anonymous 2014c; Thongnoi and Halpin 2014). He stated through his l­awyer that he simply wanted a big f­ amily and demanded custody of his c­ hildren. Shigeta was granted paternal rights over three of the babies by the Central Juvenile and F ­ amily Court—­a decision that came a­ fter a lawsuit against the Social Development and H ­ uman Security Ministry for violating Shigeta’s rights by taking away his ­children. According to another media report in January 2015, six of the surrogate ­mothers expressed a desire to seek custody of their ­children. Thai media have also reported that Shigeta was believed to have



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fathered three more babies in India before commercial surrogacy was shut down ­there (Anonymous 2015a). On February 20, 2018, Shigeta was granted sole custody of the nine ­children who remained in Thailand in state care. Now aged up to four years old, they ­will be raised by nurses and nannies in ­either Cambodia or Japan. The Central Juvenile and ­Family Court found he was of good character and had the means to care for the ­children (Hurst 2018). Although he was not breaking any laws at the time, the Shigeta case also demonstrates how the industry lacked accountability or any means of monitoring how many surrogates ­were being used by any one individual. Babies could be produced with ­little contact between the commissioning parent and surrogates. According to one newspaper report (Anonymous 2014b), Shigeta hired surrogacy scouts and a fertility doctor’s clinic in Bangkok. The clinic handled the transfer and implantation of the embryos and the prenatal care, and arranged the delivery of the babies to Shigeta. He generally had no or very minimal contact with the surrogates. All the babies w ­ ere born via caesarean section, including four sets of twins, across nine dif­fer­ent hospitals in Bangkok. The newborn babies w ­ ere then taken to a Bangkok condominium owned by Shigeta, where nannies cared for them. Birth certificates w ­ ere issued from at least five district offices in Bangkok. Shigeta went to the Thai Juvenile and ­Family Court to get custody from the surrogate ­mothers, some of whom told police that they had been instructed to lie about having an affair with Shigeta to facilitate the transfer of custody. District offices issued documents stating that he was the biological ­father and had custody, and ­these documents ­were used to arrange for Thai passports. One of the surrogates involved was featured in a press report of the case (Anonymous 2014a). She was thirty-­two years old and lived in a slum community in Bangkok. The ill health of her late ­father had left the ­family in debt and facing eviction from their rented shack. When her ­sister came across an advertisement seeking surrogates and offering US$10,000, she contacted the agency. The agent told her that the pregnancy was for a foreign c­ ouple who wished to remain anonymous. She claimed not to know ­whether the pregnancy used her own ova or another ­woman’s, as she was not given this information. A ­ fter developing preeclampsia, she gave birth two months early in June 2013. The baby was well but stayed in hospital. A ­ fter six days in hospital, the surrogate returned home. Two months ­later, she met Shigeta for the first time at the New Life Clinic and signed a document granting him sole custody of the baby. A month ­later his ­lawyer told her to attend the Juvenile and ­Family Court to finalize the custody transfer. She was instructed to perjure herself by telling the court that she had had an affair with Shigeta, resulting in a child that her husband did not want. Commentary in the Thai press on Shigeta’s “serial surrogacy” added a racialized narrative to the case. One newspaper included a cartoon by the artist “Dinhin” depicting Shigeta as a ste­reo­typical Japa­nese, with the rising sun symbol on his forehead (see figure 6.2). In this depiction, Thai ­women and babies stand for

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Figure 6.2. “Surrogacy Business” cartoon by “Dinhin” from the Bangkok Post on August 16, 2014, depicting the military government, the NCPO (National Council for Peace and Order), attempting to retrieve babies from fleeing Japa­nese businessman Mitsutoki Shigeta. Reprinted with permission from the copyright ­owners.

the Thai nation being exploited by an unscrupulous e­ nemy, harking back to the Japa­nese occupation of Thailand in the Second World War. Thailand has had a checkered history in terms of its relationship with Japan, and Japa­nese criminals have long been involved in the trafficking of ­women and c­ hildren for sexual exploitation ( Jones et al. 2011). This case further highlighted the use and abuse of Thai ­women by foreigners. In a second raid on the same condominium, police allegedly found another twenty-­one surrogate babies, including twelve boys and nine girls aged between four months and about ten months, again being cared for by nannies (Anonymous 2014d). ­These surrogate babies had foreign biological parents with ova donors allegedly from Australia, the United States, Sweden, China, Spain, Brazil, Malaysia, and Israel. Several of the c­ hildren who had been previously registered at the condominium had since left; their whereabouts ­were unknown. A ­ fter the reportage on this case shortly a­ fter the Shigeta case, ­there was no further press coverage. Coming close to the revelations of the Baby Gammy case (described in the next chapter), the public demanded action by the authorities and helped justify the rapid implementation of new legislation by the Thai military authorities. Unlike the Baby 101 case, the ­women involved in the Shigeta case ­were Thai surrogates and hence the c­ hildren involved w ­ ere considered Thai citizens u­ ntil relinquished by the w ­ omen who gave birth to them. The case did not result in prosecutions apart from ­those faced by the clinic doctor, yet few would suggest that t­ here was



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no harm to the babies involved, who ­were fathered through minimal contact, left to be cared for by nannies, and spent their first four years in the care of the Social Development and ­Human Resources Ministry. Few of the surrogates or ova donors involved would have been satisfied with the outcome for the ­children born through their pregnancies.

Stranded Babies In other cases, the l­ egal frameworks surrounding international surrogacy are the source of harms, in par­tic­ul­ ar, disputes over citizenship. ­There have been numerous cases of babies being stranded, ­either abandoned by intended parents or lacking ­legal recognition of their citizenship and facing subsequent difficulties in exiting their country of birth (see Trimmings and Beaumont 2013 for a discussion of a range of international cases). In January 2014, the press revealed that a large number of Israeli ­couples w ­ ere prevented from returning to Israel with their babies born through surrogacy in Thailand (Fiske 2014; Murdoch and Snow 2014). Over twenty babies and forty pregnancies ­were said to be affected. As they ­were born in Thailand, and the Thai w ­ omen who gave birth w ­ ere legally recognized as the ­mothers, the Israel Interior Ministry refused to grant citizenship to the babies due to a conflict with Thai law, which automatically grants citizenship to babies if their birth m ­ other is Thai (Murdoch and Snow 2014). Although Israel is a pronatalist state famous for its support of surrogacy, it was illegal for same-­sex c­ ouples or individuals to undertake surrogacy in Israel. Following public protests and media coverage, the Israeli government agreed to a procedure whereby the Thai m ­ other could relinquish the child and the child could then exit the country on an Israeli passport. The case also prompted the drafting of a bill in Israel that would allow individuals and gay ­couples to use Israeli surrogates. However, such difficulties over citizenship continue. In February  2017, three more Israeli c­ ouples w ­ ere stranded in Mexico following its refusal to release their babies’ birth certificates, as surrogacy has been banned in that country in 2016 (Anonymous 2017a). The “Baby Carmen” case in Thailand raised further publicity surrounding the ­legal vulnerability of babies born in international surrogacy arrangements (Holmes 2016). In this case, a gay c­ ouple, Gordon Lake and his Spanish husband Manuel Santos, was forced to enter a long-­running custody dispute. Their baby Carmen was born in January 2015 via an anonymous egg donor and a Thai surrogate, who refused to sign over her parental rights to the child when she discovered that the ­couple was gay. Without a passport, the child stayed in Bangkok in the care of Lake, her biological f­ ather. His husband and their other child, born through surrogacy in India, ­were forced to return to Spain. The ­couple used New Life Clinic in Thailand, which, as I noted in chapter 1, had branches in a number of countries and was one of the more aggressive marketers in Thailand, especially to gay c­ ouples. The surrogate appeared on Thai tele­vi­sion stating that she could not understand

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the surrogacy contract ­because it was in En­glish. According to the newspaper report in the Guardian (Holmes 2016), the surrogate claimed that she felt a moral urge to help a “legitimate married ­couple” and that she had found out that the men ­were gay only when she saw documents in the hospital room on the day of the birth. The c­ ouple used social media and a crowdfunding site to fund continuing l­ egal proceedings in Thailand (Anusonadisai 2016). On April 26, 2016, the Central Juvenile and F ­ amily Court ruled in f­ avor of Gordon Lake, stating that he was Carmen’s only guardian (Fredrickson 2016). Aged fifteen months, Carmen was allowed to leave for Spain.

The Prosecution of an Australian Facilitator As I describe in chapter 8, following the closure of international surrogacy in Thailand, a number of companies relocated across the border to Cambodia. The prosecution of an Australian facilitator, Tammy Davis-­Charles, along with two Cambodian nationals for trafficking in Cambodia suggests that, once again, some clinics and facilitators have been undertaking practices that jeopardize the l­egal status of babies born through surrogacy, and have shown ­little regard for the regulations of the country in which they operate. The trio was arrested and charged on November 22, 2016, ­under Article 332 of the Cambodia Penal Code, which prohibits acting as an intermediary between adoptive parents and a pregnant ­woman, and with falsifying documents. The charges carry sentences of up to two years and six months in prison, respectively, and a fine of KHR5 million (about US$1,250) (Sutton 2016; Maza, Kong, and Sen 2016). Tammy Davis-­Charles, aged forty-­nine, owned an international surrogacy facilitation com­pany, Fertility Solutions PGD, which arranged Cambodian surrogates for intended parents (the majority of whom w ­ ere Australian). In a report in AEC News on December 1, 2016 (Vin 2016), a spokesperson for the Cambodian National Committee for ­Counter Trafficking (NCCT) was quoted as stating that the crackdown and arrest w ­ ere “driven out of concern that commercial surrogacy could be used for organ harvesting, for child sex abuse, or that the babies might end up with abusive or neglective [sic] foreign parents.” The NCCT reportedly knew of at least fifty-­two Cambodian ­women recruited by Davis-­Charles, resulting in twenty-­three pregnancies to Australian clients. Five babies had already been born and had been issued Australian passports, based upon the provision of documents falsely disclosing that “the husband is an Australian and the wife is Cambodian . . . ​and the child Australian. In real­ity, the surrogate ­mothers are already married and have previously had ­children to Cambodian men.” The Cambodian government assured intended parents who had surrogate pregnancies ­under way with this com­pany that they would be able to claim their babies following Cambodian-­supervised DNA testing (Murdoch 2017a). But, similar to the situation surrounding the closure of international surrogacy in Thailand in 2015, the



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events caused considerable stress, anxiety, and uncertainty for intended parents and surrogates. Like many other facilitation companies, Fertility Solutions PGD had moved its operations from Thailand to Cambodia following the Thai government’s ban on international surrogacy in 2015. Unlike most other clinics, however, Fertility Solutions PGD was recruiting local Cambodian w ­ omen as surrogates and on its website celebrated this as providing a good economic opportunity for poor ­women. As I describe in chapter 8, most other companies contracted Thai, Laotian, or Viet­nam­ese ­women as surrogates, and moved them across the border to have embryo transfers done in Cambodia, to ­later give birth in their home countries or in Thailand. ­Under Cambodian law, the c­ hildren born of Cambodian ­mothers are Cambodian; hence, if false documents are used to obtain their passports, ­these ­children may be considered to have been trafficked out of Cambodia. However, the Cambodian laws and protections are ambiguous and difficult to apply regarding c­ hildren born to foreign nationals outside their home countries. Sydney Morning Herald reporter Lindsay Murdoch (2016) stated that many of the surrogates came from the impoverished squatter settlement of Khmounh outside Phnom Penh, and undertook surrogacy to repay debts and/or pay for their ­children’s education and housing. Following Davis-­Charles’s arrest and freezing of the com­pany’s bank accounts, many surrogates w ­ ere worried that they would not receive their payments and did not know what to do about their pregnancies, particularly as they did not have the contact details of their intended parents. The AEC media report (Vin 2016) stated that Cambodian surrogate ­mothers received lump sums from Fertility Solutions PGD of between US$6,000 and US$10,000 upon birth and surrendering the baby (a considerable sum given the current minimum wage in Cambodia for a garment worker of US$140 per month). Intended parents ­were said to be charged US$50,000 by the com­pany. On August  3, 2017, Davis-­Charles and her two Cambodian codefendants ­were found guilty and all ­were sentenced to eigh­teen months. The judge in the case found sufficient evidence to prove that twenty-­three Cambodian ­women ­were paid US$10,000 each to have surrogate babies and that c­ ouples paid an average of US$50,000 for each baby. He stated that evidence showed money was paid illegally to obtain birth certificates for the babies so they could be taken out of Cambodia (Skehan 2017). Although now notorious, the story of Davis-­Charles is typical within the international surrogacy industry: she had herself gone through a surrogacy arrangement before starting a facilitation com­pany. In 2012, the Australian Seven Network aired a story on Sunday Night that featured Tammy and her husband, and followed them as they received their baby twins born via an egg donor and surrogate in Thailand through the All IVF Clinic (run by Australian-­educated Dr. Pisit Tantiwattanakul, who was implicated in the Shigeta controversy). The story appeared at a time when several states in Australia had moved to outlaw international

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commercial surrogacy by their residents. Sympathetic imagery of the c­ ouple was contrasted with dramatic and sinister m ­ usic, footage of the raid of trafficked Viet­ nam­ese surrogates in 2011  in Bangkok, and then NSW member of Parliament Linda Burney describing the international surrogacy trade as child buying and trafficking. Tammy explained that, due to the complications of surgery she had following the birth of her four existing boys by her first marriage, she was unable to carry a pregnancy for her second husband, and hence they deci­ded to pursue surrogacy, citing that it had prob­ably cost them around AU$35,000. The Sunday Night program interviewed an emotional Tammy and her husband as they took the twin boys to meet their egg donor and surrogate, and depicted them in vari­ ous scenic and ste­reo­typically touristic moments that would be familiar to many Australians, including in the back of a small three-­wheel vehicle, a tuktuk, careening through the streets to meet their egg donor with their babes in arms, and in a boat at the floating market, as well as presenting a shot of the twins with “their three ­mothers” releasing birds to make Buddhist merit at the Erawan shrine in Bangkok.3 Largely as a result of their personal experience of surrogacy and the interest generated by the tele­vi­sion publicity, Davis-­Charles set up a surrogacy facilitation com­pany in Thailand. The Fertility Solutions PGD website had the Sunday Night broadcast of 2012 embedded as part of its promotion of their story. Ironically, at the time of writing in 2017, the website is still operating, and describes how the ­couple moved to Thailand to begin their com­pany to help ­others: “At first I was just helping ­couples whilst I worked fulltime as a nurse and my husband was a stay-­at-­home f­ ather. The surrogacy enquiries started to take over our life, as so many ­couples needed help and guidance throughout their journey. So we deci­ ded to move to Thailand and start a surrogacy business fulltime, so I can help ­people all day everyday. This is the most rewarding and fulfilling job l could ask for, I’m once again blessed” (http://­www​.­fertilitysolutionspgd​.­com​/­our​-­journey). The website for Fertility Solutions PGD made no mention of the arrests or ban and, as of January 16, 2017, it continued to state, “Exciting News in ­going forward and Helping families. Our Cambodian Clinic is setting an example to the rest of Surrogacy World. Families, Surrogates and Con­sul­tants must all have Compliance checks and pass high l­ egal standards set by law and Clinic. They w ­ ill be required to have Police Checks and ­legal screening before they ­will be considered to go through Surrogacy. This is in order to make sure the likes of the Gammy case w ­ on’t happen again and protect, IP’s, Surrogates and Con­sul­tants alike. G ­ reat Work Cambodia Team. Please Email our Team for further information.” Testimonials from grateful parents declared, “We cannot thank her and her staff enough for making this journey memorable and life changing. Our lives are now enriched with a child of our own and some lifelong friendships ­were forged along the way with Tammy and some of the o­ thers that w ­ ere t­ here just like us, in a strange yet wonderful land holding our new babies in our arms with smiles that have



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yet to fade and never ­w ill” (“Tracey & Michael,” February 2016, http://­www​ .­fertilitysolutionspgd​.­com​/­). The case of Davis-­Charles provides a very public example to other clinics and facilitators of how the Cambodian government is serious in its attempts to regulate surrogacy and child trafficking and to ensure re­spect for local laws. This case also exemplifies the potential risks facing all parties involved in international surrogacy. Blithely ignoring the continued warnings from both the Cambodian and Australian governments since 2014 that international surrogacy arrangements ­were to be made illegal, intended parents and facilitators have believed their own social media hype that good intentions and a strong enough desire for a ­family ­will overcome all obstacles. At a broader level, once again Australia was embroiled in an embarrassing controversy, further highlighting its ambiguous relationship with its Asian neighbors.

Conclusion Unfavorable accounts in the media in Thailand and elsewhere have heavi­ly stigmatized the practice of surrogacy in Asia, and drawn attention to the difficulties in monitoring or regulating international cross-­border transactions. What is clear from such cases across numerous jurisdictions is that countries such as Thailand ­were ill prepared for the ­legal complexities posed by the new industry of international surrogacy. Nor was the industry able to avoid abuse and exploitation by criminal ele­ments. ­These cases thus reveal the failure of “self-­regulation.” Dubious clinical practices w ­ ere undertaken at some clinics and bureaucratic chicanery became the means to circumvent and/or expedite lengthy exit and adoption pro­ cesses, such as surrogates being asked to perjure themselves in custodial hearings rather than reveal that surrogacy had taken place. In Thailand t­ here was no means of monitoring surrogacy procedures to limit their excessive use by individuals such as Shigeta or of monitoring questionable practices by surrogacy agencies or clinics. It is clear that ­there ­were inadequate means to ensure protections for surrogates, babies, and other ­women involved in the trade. It is also clear that the commercial nature of this trade spawned new forms of commodification of ­women’s bodies through the sale of ­human capacities and body products. More broadly, t­ hese cases demonstrate how the international surrogacy industry is in part attributable to and sustained by the domestic policies of many source countries, many of which deem surrogacy unethical or restrict access to its domestic practice. As noted in chapter 1, Thailand was popu­lar with Australians ­because of the diverse state legislative frameworks regulating surrogacy in Australia that made it difficult, time-­consuming, costly, and uncertain to pursue surrogacy within the country. Likewise, restrictions on gay surrogacy in many countries encouraged gay ­couples to travel to destinations such as Thailand to form their families through surrogacy. In the next chapter, I explore in more detail

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the case of Baby Gammy, which came to epitomize the demise of international surrogacy in Thailand. That case catalyzed the Thai military government to act on surrogacy and brought worldwide attention to the industry in Thailand. As w ­ ill be seen in the final chapter, however, the advent of bans in Thailand had the perverse effect of moving the industry to jurisdictions even less capable of monitoring or regulating the trade and encouraged the movement of surrogates between jurisdictions, giving them even fewer protections.

7 • BABY GA M MY I ­don’t know what to do. I chose to have him. . . . ​I love him, he was in my tummy for nine month. . . . ​I felt sorry for the boy. This is the adults’ fault and who is he to have to endure something like this even though it’s not his fault? (Pattharamon Janbua, twenty-­one years old, Thai surrogate caring for Baby Gammy; Anonymous 2014b)

In August 2014, the international media ran the story of Baby Gammy (แกมมี่), a baby boy with Down syndrome who had been abandoned in Thailand by his Australian intended parents and subsequently cared for by his Thai gestational surrogate (Whiteman 2014b; Murdoch 2014c). His twin s­ ister, not affected by Down, had been taken back to Australia. Of all the stories about surrogacy in Thailand in 2014, the story of Baby Gammy drew the greatest amount of worldwide attention to the international surrogacy industry in Thailand and to the potential consequences of the industry for the ­children, surrogates, and parents involved. As described in the previous chapter, over time a growing number of controversies emerged from the IVF industry in Thailand, revealing the industry to be inadequately regulated. Yet it was the Baby Gammy case that marked the limits of tolerance for an industry that was increasingly vis­i­ble. In this chapter, I examine the case of Baby Gammy in detail, with attention not only to the events that took place but also to the anx­i­eties it fed into and triggered in Thailand and Australia, to understand why and how it precipitated the closure of commercial surrogacy in Thailand. The international media coverage severely damaged Thailand’s image and triggered a crackdown by the Thai military on the industry and the passing of legislation outlawing international surrogacy. In chapter 8, I analyze the consequences of this case—­the subsequent relocation of the industry to other countries in Asia. This chapter is based upon a large volume of media materials and interviews with key in­for­mants and intended parents. Much of the material relies upon accounts presented within the media, as the drama in this case was played out publicly, revealing as much about repre­sen­ta­tions of surrogacy as about the facts of the case. I also draw upon the findings of the ­Family Court of Western Australia in the investigation of the facts of the case used to determine a custody dispute (­Family Court of Western Australia 2016). 147

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The Events The story broke in August 2014 ­after a twenty-­one-­year-­old surrogate, Pattharamon Janbua (nicknamed Goy), contacted the media to appeal to international donors for financial support to cover Baby Gammy’s medical expenses. She appeared in the Thai media explaining that she had agreed to be a surrogate to pay off ­family debts and had refused an (illegal) abortion when it was discovered that one of the twins she was carry­ing had Down syndrome. Rather than institutionalize the baby boy, Goy offered to care for him herself. The intending parents took the d­ aughter and left the country, leaving the son with the surrogate ­mother (Murdoch 2014c). When Gammy became sick, Goy could not afford to pay for his medical expenses. He was believed to have a congenital heart disorder, and although this diagnosis ­later proved false, he was hospitalized with pneumonia. His nickname, Gammy, is a diminutive form of the word gaem (แกม), which means “to mix” or “blend with”—­a name prob­ably intended to symbolize his conception. The agency involved was Thailand Surrogacy, and the clinic that provided the ser­vices was Superior ART. Within a few days the media had identified fifty-­six-­year-­old David Farnell and his wife Wendy from the Western Australian (WA) town of Bunbury as the ­couple involved. A spate of confusing and disturbing stories then ensued. The Farnells initially “denied knowledge of the child . . . ​telling [Australian tele­vi­sion station] Channel 9 . . . ​that they had a d­ aughter of Gammy’s age but she did not have a ­brother” ( Jabour and Foster 2014). ­Later, a “­family friend” claimed that the ­couple ­were “devastated” at the accusation that they had abandoned the boy, that “they did not know Gammy had Down syndrome and ­were only told he had a congenital heart condition” and that “they left the boy in Thailand ­because they ­were told that he was g­ oing to die” (Pearlman and Forgan 2014). The f­ amily friend described the ­father as “a good man.” ­Later Farnell was reported as saying that the “­couple’s decision to leave the twin born with Down’s syndrome ­behind . . . ​was motivated not by heartlessness but by fears the young surrogate m ­ other would alert police and so prevent e­ ither of the infants from leaving Thailand” (Anonymous 2014c). ­After further investigation by the media, it was revealed that David Farnell had formerly been convicted and served three years’ imprisonment for twenty-­ two child sex offenses against three young girls, u­ nder thirteen, in the 1980s (Orr 2014; Kohlbacher 2014). This prompted a storm of sensationalist headlines in both countries and throughout the world. Editorials called for the enforcement of bans against international surrogacy (Ekman 2014; Mitchell 2014; Wilson 2014).



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The ­Couple “Tell All” In an emotional forty-­minute interview aired in Australia on August 10, 2014, on the Channel Nine 60 Minutes tele­vi­sion program (Nine MSM 2014), the Farnells strug­gled to explain their actions, saying that they w ­ ere angry at the surrogacy agency for not telling them earlier about the boy’s condition. David Farnell and his wife Wendy attempted to pres­ent themselves as a naive, loving c­ ouple who wanted a f­ amily and w ­ ere confused and misled by their clinic and the surrogate. They claimed to have feared that the surrogate ­mother intended to keep both of their ­children: “The surrogate ­mother wanted to take our girl and we [inaudible]. So, we had to try to get out as fast as we could.” They fled Thailand following the military coup. David stated, “We d­ idn’t leave him ­behind. We wanted to bring him with us but ­things ­were happening that we ­couldn’t.” The c­ ouple claimed that they deci­ded to first try to secure their rights to their ­daughter and always intended to return for their son. David declared, “We’ve been trying to make sure first that X [Gammy’s s­ ister] is safe. No one can take her away from us. We’ve been trying to do that for six months. When we know she’s 100 ­percent safe with us then we can go and get our boy back.” Yet, in contrast, they also stated that they had not contacted the Australian embassy about the case, had never had any contact with the surrogate m ­ other (explaining that “she ­can’t speak En­glish and we c­ an’t speak Thai”), and had not made any inquiries as to Gammy’s well-­being. In the tele­vi­sion interview they claimed that it was only late in the pregnancy that they found out that the boy had Down syndrome. David claimed, “But it was too late to do anything. They sent us the results but they ­didn’t do the tests early enough. . . . ​If it would have been safe for the embryo to be terminated—we prob­ ably would have terminated.” David further explained, “I ­don’t think any parent wants a son with a disability. Parents want their child to be healthy and happy and be able to do every­thing that other c­ hildren do.” Again contradicting earlier reports from both the surrogate ­mother and the surrogacy agency, the Farnells claimed, “We never abandoned him. We never said to the surrogate m ­ other to have an abortion. We just said let’s see how t­ hings go. . . . ​We said that we still wanted him and the agency—­while we ­were in Australia—­we’re still looking at other options.” But David and his wife did admit to asking for a partial refund from the surrogacy agency: “We w ­ ere very confused and we said that ‘this is your fault, you must now take some responsibility for this.’ I expected that ­there would be a financial. . . . ​ Okay then . . . ​‘Give us back our money ­because this is your fault. The money that ­we’ve given you . . . ​give it back now.’ ” In tears, David explained that the surrogate m ­ other had wanted to keep the baby boy and they ­were worried that she would also make a claim on their ­daughter. With their visa soon to expire, they felt it imperative to return to Australia with their ­daughter. They blamed the context of the demonstrations and military coup

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that took place in Thailand on May 22, 2014, for making them feel unsafe in the country and necessitating their flight from the country with their d­ aughter while their son was in hospital. They maintained that they wanted to care for their son. When asked ­whether he and his wife had any regrets, David Farnell answered, “I have regrets that I d­ on’t think we did enough. I have regrets that I think we should have gone to the embassy and told them every­thing but at the time we ­were stressing that we ­were ­going to lose our ­little girl. We needed our ­little girl to be home. We needed her to be safe.” As an attempt to win public sympathy for the ­couple, the interview was a failure. The Australian public reaction was one of disbelief, condemning the self-­ serving nature of the story and the c­ ouple’s “crocodile tears” and emotional manipulation. It was also vociferous and condemnatory.1 The c­ ouple was placed ­under investigation by the Australian authorities. Baby Gammy was granted Australian citizenship in January 2015, and at the time of writing he remains in the care of his surrogate ­mother (Hawley 2015). An appeal was set up on Facebook in August 2014 to raise funds for the f­ uture care of Baby Gammy and received over six thousand donations. The charity Hands Across the ­Water was asked to manage the money for the boy’s ­future care. In a further twist, it was claimed that the Australian c­ ouple had applied for AU$235,000 from the fund to assist them with their ­legal expenses; however, the ­couple denied this (Callinan 2015) and the accusation was ­later proven to be false by the WA ­Family Court. The money is reserved for Gammy’s ­future needs. On Gammy’s first birthday, a reporter interviewed Pattharamon Janbua (Goy) and her ­family to report on Gammy’s well-­being (Gusmaroli 2015). He was reported as being “very comfortable,” although not yet crawling. The report included a series of beautiful pictures of Gammy with his ­family, playing with his siblings and being held by his proud grandparents and m ­ other. The story revealed that the f­ amily had been able to move from a cramped one-­bedroom unit to a new ­house as a result of the donations Gammy had received. The article quoted his ­mother Goy: “ ‘ You know, Gammy is a blessing, good karma,’ says Goy, ‘I often win the lottery a few times a month, only a few baht each time, maybe 300 h­ ere [US$11] or 400 [US$15] ­there, but the biggest prize I ever won was Gammy,’ she says. ‘He’s opened so many doors for us, w ­ e’re now no longer living in poverty.’ ” Although such statements might sound mercenary to Western ears, within Thailand the relationship between good karma and money is frequently referred to and not perceived as inappropriate. As noted in chapter 2, money and morality are not antithetical within the Thai moral economy. This difference in perception represents an example of the potential for cross-­cultural misunderstandings and misinterpretations in this case. L ­ ater in the same interview, Goy is reported as saying that Gammy’s white skin draws attention within her community; she tells ­people he is an albino to avoid having to explain the situation. She explained that her neighbors ­were calling him farang (foreigner) ­because of his white skin.



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Whiteness is highly valued in Thailand as a sign of beauty, but in this case it also relegates the baby to the status of an outsider in his community. His whiteness, rather than his disability, provokes comments from Goy’s Thai neighbors. In the final part of this profile of Gammy on his birthday, his ­mother and grandparents ­were asked about his likes and dislikes. He was described as enjoying the tele­vi­ sion news, disliking certain toys, and loving his siblings. Baby Gammy’s grand­ father was quoted as stating, “[Gammy] loves the national anthem and stands still and tall in his walker when it comes on” (Gusmaroli 2015). With this statement, the grand­father refers to the practice of publicly broadcasting the national anthem in Thailand ­every morning and eve­ning, during which time the Thai public is expected to stop and stand to attention in re­spect. Such a statement, ­whether true or not, signifies Gammy as inherently Thai and patriotic and a good Thai citizen. Hence, repre­sen­ta­tions of race, whiteness, disability, and nation w ­ ere all evoked in this portrait of Gammy.

Public Reactions in Thailand Goy was initially portrayed in the Thai media sympathetically as a caring, poor young ­woman who had been misled. For example, an article in Kapook on August 2, 2014, provoked public comments from “Noonid,” who described Goy as noble: “You have a much nobler heart than the husband and wife do. You carried a child for them. Once the kid has been born with abnormalities, they abandoned the responsibility, but ­you’ve deci­ded to continue taking care of him. Your heart is much nobler than theirs” (Anonymous 2014d). This sentiment was repeated in another anonymous posting: “You are such a noble m ­ other. I’ve followed this news from the beginning. I already adored you for not aborting the child. And when the real parents d­ idn’t take him when he was born with Down syndrome, but you still keep on raising him—­that shows that ­you’re his m ­ other. The good deeds that ­you’ve done for him has brought good fortune to you now. I wish you more and more prosperity.” The notion of karma was evoked, both the merit earned for not aborting a disabled child and choosing to raise him, and the bad karma that would ensue for the Australian ­couple. But as time passed and further details emerged, public sentiment in Thailand questioned Goy’s pecuniary motives. Several postings to a Kapook site on August  5, following a TV interview with her, questioned her motives: “­Going on TV to get donation of 6 million—is this what we call a good person? She’s making a living off the child. The foreigners did it ­because they wanted kids. They ­were willing to spend their money. Go watch and listen carefully to the surrogate ­mother. She speaks as if she wants more money.” A Thai newspaper reported that she had been acting as an agent, or at the very least a recruiter, for surrogacy (Anonymous 2014e). Posts on her Facebook page

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on May 16 and April 25, 2014, several months a­ fter Gammy’s birth, called for sperm or egg donors, and offered between 20,000 and 50,000 baht in cash (US$670– 1,670) for the ge­ne­tic material. Her second reported Facebook message said, “We are looking for many surrogate ­mothers, in and out of Bangkok. If you are interested, please leave your message.” The message asked for the details of potential ­mothers’ names, blood type, nationality, date of birth, height, weight, and other physical attributes, as well as education and hobbies. In an interview, Janbua stated that she had worked in recruiting for the Thai surrogacy industry for a while but had given it up, and refused to make any further comment. Her involvement in recruiting is not surprising, as it was common practice for recruitment to follow social networks and surrogates ­were encouraged to let their friends and other ­women know about the opportunities. However, such revelations discredited Goy’s image as a poverty-­stricken victim and disrupted simplistic characterizations of the industry as one in which surrogates had no or ­little agency. One Bangkok Post (Kolbe 2014) commentary described her as a “gold-­digging som tam seller,” an image that carries negative gendered and ethnic connotations; som tam is papaya salad, which is a popu­lar food stall item, typically associated with the poor northeast of Thailand.

Public Reactions in Australia The reaction of the Australian media was one of public condemnation of the intended parents for abandoning Gammy. As I have already noted, this was the perfect storm: an abandoned disabled child; a former sex offender ­father; a charismatic, young, quiet, and impoverished surrogate; and an unscrupulous surrogacy agency, all set within the context of a military coup and poorly regulated clinics. It caused embarrassment for the governments concerned and drew worldwide attention to the difficulties of monitoring or regulating international cross-­border transactions. The case encapsulated a number of moral panics in Australia and became a catalyst of public debate. Pedophilia The revelations that the biological f­ather in the Baby Gammy case had been convicted and jailed for the sexual abuse of ­children in the past raised serious concerns over the welfare of ­children born through commercial surrogacy arrangements. Profoundly stigmatized, ­people who commit crimes involving the sexual abuse of c­ hildren are understood in the public imagination as incapable of rehabilitation, even t­ hose who have served their time in prison. As David Farnell said in his interview to Channel Nine’s Sixty Minutes on August 10, “I can understand that. For one, thinking that we have abandoned our l­ittle boy, is a terrible ­thing. And then to have been a sex offender, every­body hates sex offenders, they are the lowest form of ­people. Not even worthy of breathing, I know that.” His



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stigmatized status as a convicted child sex abuser rendered him undeserving of any public sympathy or credibility. For the Australian public, the issue of pedophilia raised in this case evoked deep revulsion. The case coincided with an ongoing Royal Commission investigating sexual abuse and the failure to detect or prevent such abuse in a range of Australian public institutions, including religious organ­izations, adoption agencies, welfare institutions, schools, and other social agencies. The Royal Commission into Institutional Responses to Child Sexual Abuse began in 2013. Nightly, disturbing reports featured in the public media from survivors of abuse as they gave their testimony to the Royal Commissioners (Commonwealth of Australia 2015). Australians could no longer pretend that such abuse was unlikely or improbable in any circumstance or within any institution, even t­ hose set up specifically to care for the welfare of c­ hildren. Within this context of growing concern over the vulnerability of ­children, the Baby Gammy case galvanized Australian public opinion and surrogacy became aligned with potential abuse. The controversy over surrogacy and child sexual abuse continued when, shortly ­after the Baby Gammy case was disclosed, the media revealed in August 2014 that another unnamed Australian man had been charged with the sexual abuse of his twin ­daughters conceived several years earlier through surrogacy in Thailand. He and his ex-­wife had divorced in 2008. Subsequently, the media reported the claims of a representative of NGO Childline Thailand that the Thai government was considering repatriation of the girls to Thailand as an option, as the Thai surrogate remained the l­ egal m ­ other. In a media interview the surrogate stated that she was open to what­ever course of action would be best for the ­children involved (Berkovic 2014). A third case was brought to the public’s attention in 2013, involving Australian ­couple Mark Newton and Peter Truong from Cairns. In February 2012, the men ­were arrested in California and charged with producing and sharing child pornography and extreme acts of sexual exploitation (Meldrum-­Hanna 2013). Newton was sentenced to forty years in prison in the United States for sexually abusing the boy he and Truong, aged thirty-­six at the time, had “­adopted” a­ fter paying a Rus­sian ­woman US$8,000 to be their surrogate in 2005. The US District Court found that the ­couple arranged the surrogacy and ­adopted the boy “for the sole purpose of exploitation” by a network of men in the United States, Germany, and France (Ralston 2013). When interviewed for a ­human interest story in Cairns in 2010, the pair presented themselves as gay dads who had been through a long journey to form their ­family and suffered discrimination from the authorities. Although such cases are rare, they evoked anx­i­eties in Australia over the ease with which p­ eople have been able to have a child through surrogacy. In providing advice to the ­Family Law Council and calling for a review of diverse state laws regulating overseas commercial surrogacy, Federal Cir­cuit Court Chief Judge John Pascoe warned that ­children w ­ ere being “commissioned” specifically for

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trafficking or abuse purposes, and that “tragically this is a risk that has too often been realised” (Bita 2014). Australia’s Relationship with Asia Australia’s relationship with Asia was an ongoing subtext throughout the media’s coverage of the Baby Gammy case. First, the images of Thailand that emerged in most media reports ­were relatively simplistic and ste­reo­typical. Reports spoke of how Thailand had become a popu­lar tourist destination for Australians, particularly with the advent of budget-­priced airlines offering affordable flights to destinations such as Bangkok and Phuket. The country was described as synonymous with cheap holidays, beaches, a notorious sex industry, and more recently cheap plastic surgery. At the time, however, Thailand was also depicted as po­liti­cally volatile—an image reinforced by the violent public protests and its history of military coups. ­These ste­reo­typical Orientalist images of Asia ­were raised further when claims emerged in the media that David Farnell’s wife was a “mail-­order bride” from China (Anonymous 2014f). It was alleged that the Australian ­couple had met through the com­pany Zhanjiang Happy Marriage Agency in Guangdong, China. The media report cited Chinese website Chn Love Date, which listed the ­couple’s marriage as a success story. The derogatory connotations of the term “mail-­order bride” discredited their relationship and damaged their attempts to pres­ent themselves as an ordinary, loving ­couple. By implication, David Farnell had been involved in relationships entailing the commodification of ­people—­the “ordering” of his wife and now his c­ hildren—­and so too Wendy Farnell was stigmatized by this assertion, which cast her variously in the role of a ­woman who had married for money and citizenship and as a “victim” of David Farnell. Regardless of the truth of ­these reports, the fact that Wendy’s status was raised highlights the continued stereotyping of Asian w ­ omen who marry Western men and the ready assumptions made about the nature of t­ hese relationships. Similarly, in Thailand, the fact that David Farnell’s wife was Chinese added racist overtones to the reaction. Thailand has long held images of itself as u­ nder threat from China and Chinese interests, which came to the fore in a controversy about Chinese ­couples coming to Thailand specifically for sex se­lection ser­vices and commercial surrogacy at IVF clinics that preceded the Baby Gammy crisis (Prasert 2014). Once again, this case fueled the imagery of Thai womanhood being colonized for Chinese reproduction. Forced Separations A further concern feeding into reactions to this case and to surrogacy more generally by some members of the Australian public surrounds the issue of the effects of forced separations upon c­ hildren. Australia has a sad history of forced relin-



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quishments of c­ hildren, and the topic has received par­tic­ul­ar attention over the past de­cade or so. ­There have been a number of major and highly publicized public apologies made by institutions for the separation of ­mothers from their ­children. For example, on February 13, 2008, Prime Minister Kevin Rudd presented the “Apology to the Stolen Generation” from the Australian government for its policy between the 1900s and 1960s to forcibly remove Aboriginal ­children from their families to be brought up by white foster families or institutions.2 Further public apologies have been made concerning the practice of unwed m ­ others being forcibly separated from their babies,3 and to the generation of child mi­grants sent from ­England to Australia.4 The pain and psychological damage suffered by the ­children and ­mothers separated as a result of ­these policies remain lodged in the public imagination in Australia. Surrogacy is depicted by some as a practice that involves the forced separation and estrangement of c­ hildren from their ­mothers. Concern over this has been raised particularly by organ­izations such as the group of donor-­conceived ­people, now aged in their twenties and thirties, who are voicing how they personally have been affected by decisions made to ensure anonymous donation. Another group drawing attention to the harm of separation has been the now adult ­children of forced adoptions. ­These ­people are calling attention to the need of ­children to know the identity of ­those involved in their conception and of their (birth) ­mothers.5 The Baby Gammy case and ­others reported in the media have had a number of effects: the decline of public sympathy for c­ ouples undergoing overseas surrogacy; calls for tighter restrictions on overseas surrogacy; and consideration of the pos­si­ble introduction of limited forms of compensated surrogacy within Australia to decrease demand for international surrogacy.

Intended Parents: From Sympathy to Suspicion Prior to ­these cases, overseas surrogacy by Australians was attracting growing sympathy in the Australian media, which depicted ­those seeking surrogacy as vulnerable, loving c­ ouples proactive in their attempts to form a f­ amily (Riggs and Due 2013, 2014, 2017). The Baby Gammy case reversed this trend. Overseas surrogacy came to be depicted as an inherently dangerous, immoral, and exploitative enterprise engaged in by opportunists with an overwhelming sense of privilege. The dreams of ­eager Australian intending parents, forming a ­family through international surrogacy, became heavi­ly stigmatized (Murdoch and Snow 2014). Posting on a public Facebook group for p­ eople pursuing surrogacy in Thailand in 2014, one intending parent noted, “The ­thing that annoys me is now surrogacy seems like such a dirty word! I mentioned to someone that we w ­ ere looking into it as an option and they ­were truly horrified. Like it was cruel and immoral.” As a consequence of such stigma, many of ­these forums quickly became private, with access denied to the public.

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­Legal Reaction in Australia The ­legal reaction in Australia was to call for a review of diverse state laws regulating overseas commercial surrogacy. In their advice to the F ­ amily Law Council, Chief Judge Pascoe and ­Family Court Chief Justice Diana Bryant ­were highly critical of state laws in New South Wales, the Australian Capital Territory, and Queensland, which currently ban overseas commercial surrogacy: “Courts being asked to make parenting o­ rders are placed in a difficult position where t­ here is clear illegality by the Australian ‘parents’ but t­ here is uncertainty about w ­ hether action ­w ill be taken by the relevant authorities.” They challenged state governments ­either to prosecute parents who breached the ban on commercial surrogacy or to make it l­ egal. “In our view, if governments do not want to enforce t­ hese laws, they should be repealed,” the judges wrote in a joint statement. Further, Chief Judge Pascoe likened surrogacy to the sex trade, warning that Australians who pay surrogate m ­ others overseas can never be sure that their surrogates are not being exploited: “Although ­these w ­ omen may appear to be voluntarily offering their ser­ vice to unsuspecting Australian commissioning ­couples, the real­ity can be quite dif­fer­ent. . . . ​It is therefore of ­little weight when commissioning ­couples assert ‘our surrogate ­wasn’t exploited,’ as the real­ity is that in the absence of any regulatory scheme they cannot be sure.” Some l­ egal scholars are calling for Australia to consider forms of compensated surrogacy, in which surrogates would be able to receive a legally determined amount of money for their surrogacy as a means of ensuring that surrogacy takes place within a carefully regulated environment in Australia, instead of forcing parents to choose poorly regulated arrangements overseas. In par­tic­ul­ar, t­ here are calls for a review of the vari­ous state laws governing surrogacy compensation and bans on advertising for surrogates. Chief among the proponents of t­ hese changes is Australian l­egal scholar Dr. Jenni Millbank. Writing an online commentary of the legislative response to surrogacy laws in Australia following ­these cases, she warned against basing l­egal reforms on the “latest tabloid story” and against an “emotional knee-­jerk wave of reforms in what is a complex and highly specialized area of law,” noting that Australia has had twenty-­seven public inquiries and at least seventeen dif­fer­ent laws passed on surrogacy. She went on to state, “­There is no perfect surrogacy law, and t­ here is no quick fix to the complex challenges posed by cross-­border reproductive practices more broadly. A considered and long-­term response has to involve more than simply reacting to the latest case to hit the news, no ­matter how compelling it may be” (Millbank 2015). Millbank (2014) argued that current compensation rules are highly restrictive and do not adequately compensate surrogates, and bans on advertising make it difficult for ­people to connect with Australian w ­ omen willing to be surrogates. This position has drawn support from Surrogacy Australia and Justice Bryant, who have called for a national review and the legalization of commercial surrogacy in



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Australia to encourage ­couples to pursue surrogacy within Australia where careful regulation can ensure ethical arrangements and prevent abuses (Brennan 2015). In advice to the ­Family Law Council, Chief Judge Pascoe and Chief Justice Bryant called for a review of diverse state laws regulating overseas commercial surrogacy. Although the availability of compensated surrogacy would not eliminate Australians traveling overseas to obtain a faster and less expensive surrogacy, it could reduce the demand.

Court Decision over Custody On April 14, 2016, WA ­Family Court Chief Judge Stephen Thackray released the judgment in the custody dispute over the Farnells’ d­ aughter, Gammy’s s­ ister, who was living with the Farnells at the time (­Family Court of Western Australia 2016). The statement was publicly released as it was deemed to be in the public’s interest (Anonymous 2016). Chief Judge Thackray deci­ded that it was in the best interests of the ­daughter to continue to live with the Farnells rather than be placed in the custody of the surrogate m ­ other. In his investigation of the case, he determined that the Farnells did not abandon Gammy and had wanted to keep him, but that at some stage in the pregnancy “it is clear that Mrs Chanbua had fallen in love with the twins she was carry­ing and had deci­ded she was g­ oing to keep the boy.” He described her as “a poorly educated young ­woman who felt obliged to honor at least part of the surrogacy bargain” (­Family Court of Western Australia 2016, 105). He noted the inevitable misunderstandings that had arisen in the case: They did not share a common language, and ­were dependent on third parties to fill them in on what had happened when they ­were not personally involved in the action. One of the third parties, who had a clear conflict of interest, deci­ded to keep part of the story to himself. Added to this muddle ­were not only cultural differences, but also differences in the levels of sophistication of the actors. Their ability to recall what happened, and in what order, has been impaired by the anxiety felt for the health of the babies, and by the tensions that arise when a w ­ oman’s body is rented for the benefit of o­ thers and where the unit of exchange is mea­sured in the life of a new ­human being. It is ­little won­der that misunderstandings arose along the way. (­Family Court of Western Australia 2016, 16)

Chief Judge Thackray stated that the Farnells had “suffered ­great humiliation and enormous stress for t­ hings they did not do.” The judgment, however, does reveal the misleading information provided and bureaucratic sleights of hand undertaken by the surrogacy agency and the Farnells in order to gain passport papers for their ­daughter, without alerting the authorities that David Farnell was also the f­ ather of Gammy. Likewise, Chief Judge Thackray found that while the Farnells had

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intended to keep both ­children, they ­were aware that Chanbua was intending to keep at least one of the babies and w ­ ere concerned that they would not be able to keep their d­ aughter as well. The Farnells and the agency had denied pressuring her to abort following the diagnosis of Down syndrome late in the pregnancy. In his statement, Chief Justice Thackray (­Family Court of Western Australia 2016, 176) noted, The appalling outcome of Gammy and X [name removed by author] being separated has brought commercial surrogacy into the spotlight. Quite apart from the separation of the twins, this case serves to highlight the dilemmas that arise when the reproductive capacities of ­women are turned into saleable commodities, with all the usual fallout when contracts go wrong. The facts also demonstrate the conflicts of interest that arise when middlemen rush to profit from a demand of the market in which the comparatively rich benefit from the preparedness of the poor to provide a ser­vice that the rich ­either cannot or ­will not do. This case should also draw attention to the fact that surrogate m ­ others are not baby-­growing machines, or “gestational carriers.” They are flesh and blood ­women who can develop bonds with their unborn ­children. . . . ​It is also for ­others to determine ­whether even a “first world” country can provide a regulatory regime sufficiently robust to protect the interests of surrogate ­mothers and the c­ hildren they bear. But can any regime anticipate the ingenuity of would-be parents?

The decision also detailed the extensive rules and protections put in place to ensure the safety of the Farnells’ d­ aughter, given Mr. Farnell’s criminal history, and found her to be at low risk of abuse. This case marked the end of the ­legal drama surrounding the custody of the Farnells’ ­daughter, but the facts of the case as stated by the court w ­ ere not widely reported and the notoriety and impact of the Baby Gammy case remained associated with Thailand and international surrogacy.

Po­liti­c al Context in Thailand Coverage of the Baby Gammy story in Australia also drew attention to the military government in Thailand. Thailand has suffered from serious po­liti­cal divisions and instability in recent years. Th ­ ese have involved tensions between the “red shirt” supporters of the previous Thaksin Shinawatra government (largely consisting of supporters from the north and northeast of Thailand) and so-­called “yellow shirt” supporters who w ­ ere anti-­Thaksin. The populist Thaksin government was ousted by the military in a coup staged on September 19, 2006, and his po­liti­ cal party was banned. Thaksin is currently in exile, accused of corruption and being disloyal to the Thai monarchy. For a number of years prior to 2013, successive elected governments suffered from a deep crisis of legitimacy, and protests have



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frequently resulted in civil vio­lence. In late 2013, ­there ­were months of po­liti­cal protests held by yellow shirt supporters against the popularly elected Pheu Thai Party government of Prime Minister Yingluck Shinawatra, the ­daughter of Thaksin. She dissolved parliament on December 9, 2013, to force an election, but remained as caretaker prime minister. On May 7, 2014, the Constitutional Court of Thailand found her guilty of charges of abuse of power over the transfer of the national security chief in 2011 to make way for a Pheu Thai supporter, and the court removed her from the office of caretaker prime minister and defense minister (Anonymous 2014g). A few weeks ­later, on May 22, 2014, the military staged a coup, headed by General Prayut Chan-­ocha. The coup leaders suspended the Constitution (Hodal 2014) and established a military regime headed by the National Council for Peace and Order (NCPO). The NCPO established a government and nominated a National Legislative Assembly. It vowed to conduct national “economic, social and po­liti­cal” reform to fight corruption and ban illegal activities before the next elections ­were to be held (Anonymous 2014h). On May 26, 2014, King Bhumibol Adulyadej formally appointed General Prayut to run the country. Since the coup, the NCPO has pursued an agenda with an emphasis on public morality and a crackdown on activities deemed illegal, immoral, or unpatriotic.6 The social interventions by the NCPO government emphasize Thai nationalism, and all government departments and committees are expected to undertake their duties in line with Thai national values.7 Within this context, the issue of illegal commercial surrogacy became a new focus for the NCPO in pursuing its agenda of public morality. On September 15, the Social Development and ­Human Society Minister Police General Adul Saengsingkaew was quoted as declaring that police, the Ministry of Interior, the Ministry of Public Health, and the Ministry of L ­ abour would solve issues of surrogacy by establishing a “war room” to monitor and report on social issues (Anonymous 2014i). As noted earlier, previous governments had been aware of the industry, and existing draft legislation aimed at banning commercial surrogacy was awaiting debate by parliament when the NCPO took power. However, it was the avalanche of horrific media reports and international embarrassment over practices involved in commercial surrogacy in Thailand that forced the government to act. On July 22, 2014, the military government and the NCPO announced a review of all twelve Thai IVF clinics involved in surrogacy cases believed to have breached the Thai Medical Council guidelines and not certified by the Royal College of Obstetricians. One clinic was immediately shut down for infringing on laws governing health care institutions and medical ethics. Following the crackdown, Thai authorities prevented Australian c­ ouples from leaving the country with their babies born through surrogacy arrangements (Anonymous 2014j), causing confusion and anxiety for intending parents. Writing about the Baby Gammy controversy, Erik Cohen (2015) has described the advent of this legislation as though it was purely the initiative of the NCPO.

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The press represented it in a similar light. However, as noted in chapter 1, an extensive drafting and consultation pro­cess had been undertaken over several years to produce the earlier draft legislation. Sawang Boonchalermvipas, a former legislator and ­legal expert who had been involved for six years in deliberations to draft the surrogacy law, was quoted in a newspaper article as stating, “The last government was sitting on it for too long” (Alford 2014). The NCPO took the existing draft legislation and fast-­tracked its approval through parliament.

Anxiety and Confusion With the closure of a number of clinics, agencies, and facilitators in Thailand, foreign intended parents w ­ ere faced with anxiety and confusion, greatly concerned that their pregnant surrogates may not receive care and unsure ­whether they would be allowed to take their babies out of Thailand (Whiteman 2014a). Th ­ ere w ­ ere rumors of surrogates potentially being charged ­under Thai child trafficking laws (Murdoch 2014d). Over 150 babies intended for Australian c­ ouples ­were said to be “in limbo” during the period of transition to the new laws (Anonymous 2014k). A number of parents had no means of contacting their surrogates as all communication had taken place through the surrogacy agency. Communication with closed clinics became very difficult, at times impossible. Facebook pages became crucial means of communication between intending parents seeking information, but also became rife with rumors, misinformation, and fears that surrogates might abort pregnancies. In a statement made in July 2014 following the closure of Thai clinics, Surrogacy Australia tried to reassure and inform Australian intended parents (Surrogacy Australia 2014). It advised of the negotiations taking place to ensure the well-­being of surrogates and c­ hildren, and suggested, Discretion must be observed by IPs at birth hospitals, avoiding mention of surrogacy (this has always been advised, but more impor­tant now). Same sex ­couples in par­tic­u­lar are advised to be discreet about their relationship status.

Reports emerged of facilitation agencies pursuing surrogates and using threats of vio­lence. For example, a BBC News report described a man and ­woman seeking protection in a shelter to avoid a facilitator who was threatening a w ­ oman carry­ ing a child for a Chinese man (Head 2015).8

Shutting Down the “Baby Factory” The next act of the NCPO was to revive the Assisted Reproductive Technologies Bill that had first been approved by the Cabinet in 2010. The legislation was due to be debated by the lower ­house of parliament, but po­liti­cal instability prevented



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the debate. When the military NCPO revived the bill, it was renamed the Protection for ­Children Born Through Assisted Reproductive Technologies Act (hereafter, the Act), a name that reflects the change in attitude t­oward assisted reproduction as the focus shifted from the regulation of technologies to the protection against its harms, and was particularly aimed at stopping the international trade. The legislation enforces a ban on commercial surrogacy and ova donation as well as nonmedical sex se­lection and disallows intermediaries or brokers for surrogacy arrangements. It restricts the eligibility for surrogacy to heterosexual ­couples (at least one of whom must be Thai) who have been married for at least two years. In addition, surrogates must be female relatives of the ­couples requesting surrogacy. The Act was published in the Royal Gazette on May 1, 2015, and took effect on July 30, 2015. The passing of the legislation “aims to stop Thai ­women’s wombs from becoming the world’s womb,” according to Wanlop Tankananurak, a member of Thailand’s National Legislative Assembly, as quoted in the media (Anonymous 2015a).

Views within the Thai Medical Profession The re­introduction of the draft legislation generated debate within the medical profession. In this regard, it must be remembered that the Thai medical profession itself is not immune to the po­liti­cal and social divisions over the legitimacy of the NCPO government.9 Some doctors claimed that t­ here had been insufficient consultation with the profession; ­others ­were pleased that the legislation was fi­nally coming into being. In my own interview with Professor Pramuan Virutamasen, who had chaired the original ethics committee that drafted regulations for the Thai Medical Council, he stated that it had become clear—­particularly following a number of ­legal cases—­that the law had to “protect ­children as a first priority, including ­children with disabilities who need to be protected . . . ​it was our duty to change the law.” He described the growth in the number of agencies seeking commission for surrogates as a “dirty ­thing” and suggested that some doctors ­were “thinking of capitalism, this is the way of thinking of the ­people, a lack of ethics, thinking in the wrong way.” Professor Pramuan commented, “If ­people would re­spect and honest to ethics and morality we prob­ably w ­ ouldn’t need the law . . . ​biology is not an industry, it involves h­ uman beings, life is not a car, you ­can’t compare the two.” He suggested that some doctors practiced for money ­because they had invested heavi­ly in technologies and clinics and w ­ ere in debt. He noted that ­others within the Thai Medical Council carried a range of views on the merits of the legislation and that debate was continuing. In further interviews with se­nior medical officials from the Thai Medical Council, which I conducted in November 2014, they made clear that they had long been “scared that this [surrogacy] was a prob­lem” and stressed that the council

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already had three sets of guidelines in place governing the use of ARTs, including specifications for the practice of altruistic surrogacy and the characteristics of surrogates. One official expressed frustration at the delays with the passing of the legislation, which had “been ­going back and forth, enough already.” As another se­nior doctor noted, “I feel sad and bad about how this has affected the image of Thailand.” However, while all t­ hose I interviewed w ­ ere in agreement that legislation was required, several details of the legislation w ­ ere contested. The first involved the provisions for setting up a body to approve surrogacy applications. Initially the suggestion had been that the Thai Medical Council would act in this capacity. Yet some doctors have doubted the council’s capacity to act in such a way. The Medical Council already carries a large burden and is clearly underresourced—­a visit to the offices makes it clear that the organ­ization lacks administrative staff and adequate data management capacity, and has difficulty enforcing its existing guidelines. Several doctors have instead suggested that public teaching hospitals, such as Chulalongkorn and Siriraj hospitals, are in a better position to run such an approval body. The Act stipulates a formal government committee to oversee surrogacy, to be formed u­ nder the permanent secretary to the Ministry of Public Health. Such a committee would be required to approve all surrogacy applications and all applicants would need to be examined by qualified doctors before their application could be approved. The second debate involved the limitation of surrogacy to relatives only, which makes it impossible for ­couples without willing female relatives to undertake a surrogacy arrangement. As one of the se­nior medical officials complained, “it is too difficult, too complicated.” Fi­nally, ­there w ­ ere differences of opinion over the banning of same-­sex c­ ouples from surrogacy arrangements. As this same doctor noted, “Thai society is becoming more flexible, it may be against the law now to have gay marriage but in the ­future it may change, we should just say ‘married ­couples’ and then we ­won’t have to change the legislation in the ­future if the law becomes more flexible.” Nevertheless, t­ hese changes did not appear in the final legislation, which remains explic­itly heteronormative. According to a news report, some officials remain skeptical about Thailand’s ability to enforce the new legislation. Th ­ ere are concerns that commercial surrogacy w ­ ill simply go underground, with even fewer protections for the w ­ omen and babies involved. Dr. Somsak Lolekha of the Thai Medical Council was quoted in one newspaper article as stating, “We have no law enforcement. Just like drinking and driving. We have the law. But they never enforce it. That is a weak point of Thailand” (Head 2015). This legislation bans the Thai cross-­border surrogacy industry and any commercial arrangements, but also has ­great significance in terms of the ongoing ramifications of assisted reproduction for definitions of motherhood and kinship in Thailand. While limiting surrogacy to altruistic arrangements involving female relatives of Thai c­ ouples, the Act contains mea­sures from the 2010 draft that remove



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the ambiguity over the parentage of a child born of surrogacy arrangements. It provides that a child born through means permitted ­under the Act ­will be deemed to be the legitimate child of the commissioning parents, not the surrogate or any other person who provided ge­ne­tic material. U ­ ntil this legislation was passed, the ­woman who gave birth was legally recognized as the ­mother of the child, leading to uncertainty for intended parents. This therefore fundamentally changes the ­legal definition of motherhood in t­ hese cases, privileging intended parents over the birthing m ­ other and reversing long-­standing cultural and l­ egal traditions that define kinship through gestation.

The Disruption of Public Image The vari­ous controversies discussed in this and the previous chapter shone public light on practices that had been ­going on in Thai clinics for a number of years. As the quote above by the Thai Medical Council official reveals, many ­were concerned that the Baby Gammy case had brought the image (phap-­phot) of Thailand into disrepute. In a similar vein, the NCPO expressed the view that this issue had damaged the country’s reputation abroad and threatened Thailand’s medical tourism industry (Alford 2014)—­hence action was necessary. The term “image” used ­here refers to two Thai concepts, phap-­phot and phap-­ lak, which denote notions such as the “(good) name,” “standing,” “reputation,” and “public image” of an institution. In his insightful discussion, Peter Jackson (2004, 186) observes that t­ hese terms reflect pervasive cultural concerns with the idea of “face” (na) and “reputation” (cheu-­siang), and the need to “construct positive images” (sang phap-­phot thi di) and avoid damage to one’s reputation. Ryan Bishop and Lillian Robinson (1998), in their study of Thai sexual culture, coin the term “cultural aphasia” to describe the inability to speak of or articulate certain ideas in Thailand, reflecting “the divide between an intensely policed public domain and a silenced but relatively autonomous private sphere” (197). They observe that such topics include t­ hose concerning the Thai monarchy and the presence of a sex industry. In this regard, the existence of a thriving commercial surrogacy industry in Thailand for a number of years is a further example of such a public secret. Peter Jackson (2004, 183) describes this separation between the public image and what goes on in private in Thailand as a “Thai regime of images”: “The regime is based upon a sharp demarcation ­under which phenomena are mapped by two dif­fer­ent cultural logics, one operating in public contexts and the other in private situations, without cultural pressure to resolve or rationalize any inconsistencies between ­these two domains.” He suggests that, in effect, what is often seen as contradictory by Western observers is the emphasis on and policing of external appearances, per­for­mances, and public discourses sometimes in stark contrast to what occurs privately or remains unspoken. Further, Jackson notes that this regime of images is an “internally differentiated form of power that exerts systematically

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dif­fer­ent types of policing and control over actions and discourse in the private and public spheres, respectively. . . . ​W hen statements or repre­sen­ta­tions do not conform with idealized forms, and are perceived as disrupting ‘the image of smooth calm’ (phap-­phot haengkhwam-­sa-­ngop-­riap-­roi), then both formal (­legal) and informal (cultural) modes of power may be mobilized to expel the unwanted repre­sen­ta­tions from the public domain.” Such an exercise of power can be seen in the case of commercial surrogacy. For a number of years prior to 2012, surrogacy took place quietly and discreetly in clinics—as an unspoken public secret. When I undertook ethnographic work in clinics in 2008–2009, ­every doctor I asked claimed that such arrangements ­were not taking place in Thailand, in direct contradiction to the testimonies of some patients I interviewed (Whittaker 2015). With the closure of options for gay ­couples in India in 2012, a number of international agencies moved operations and new clinics sprang up openly advertising commercial surrogacy and ova donation, targeting gay ­couples in par­tic­ul­ ar. The damaging publicity that came with the growing number of controversies made commercial surrogacy vis­i­ble, disrupted the public appearance of Thailand, and challenged public expressions of appropriate moral be­hav­ior. So, too, one may argue that the discreet practice of gay ­couples having families was not an issue ­until it became heavi­ly publicized. This was recognized by the intending parents I interviewed, who spoke of the advice they had been given about the need for public discretion. Agencies and ­lawyers ­were advising parents to be discreet at hospitals: not to demand to attend the birth, for example; or in the case of gay c­ ouples, not to advertise the fact that they w ­ ere a c­ ouple but to maintain the appearance of monogamous heterosexual norms, and to introduce partners as “friends” or supportive relatives (field notes from Surrogacy Australia conference 2013). Some ­couples found this offensive; to ­others it conflicted with the reassurances they had been given about the supportive cultural context of Thai surrogacy. Some ­couples ignored the advice and participated in public interviews and tele­vi­sion programs, openly celebrating their arrangements in defiance of the Thai Medical Council guidelines. The outbreak of negative publicity meant that the surface appearance of institutional ignorance of commercial surrogacy activities could no longer be maintained by the Thai authorities, who w ­ ere then obliged to reassert their control over the industry.

Conclusion: Baby Gammy as an “Event Horizon” In this chapter I have described the waves of moral panic that ensued ­after the Baby Gammy case, which followed a series of other cases, described in the previous chapter, involving disastrous cross-­border commercial surrogacy arrangements and ­legal complications. ­These cases highlighted the development of an industry lacking sufficient regulation and the resulting exploitation, ­legal confusion, and



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vulnerabilities, especially for c­ hildren. The role of traditional and new media in shaping perceptions of ­these cases is noteworthy, and in many ways ­these cases played out in the press. Reports in the press and social media ranged from the factual to the hysterical, galvanizing public opinion and catalyzing po­ liti­ cal responses. The use of social media by all parties involved in the vari­ous cases was sophisticated: to lobby for c­ auses, raise money, and control public images and information. I have shown how the reactions to the Baby Gammy case ­were informed by broader debates in Thailand and Australia. In Thailand, ongoing concerns around w ­ omen’s reproductive capacity as symbolic of the Thai nation have had a long history. In this vein, concern with Thailand’s image as upholding certain Thai ­family moral values colored responses. In Australia, recent concerns over child separations, fears of pedophilia, and long-­standing Orientalist images of Asia all fed into the depictions of cases and reactions of the public. ­These cases served to undermine social support for the quests of intending parents, who subsequently retreated into the privacy of supportive online communities. I suggest that cases such as that of Baby Gammy can be considered as “event horizons,” drawing an analogy from the concept used in astrophysics to describe “the point of no return”—­associated most commonly with black holes—at which the gravitational pull becomes so ­great as to make escape impossible. Similarly, despite a series of controversies that had swirled around surrogacy in Thailand, it was the event of Baby Gammy that marked the limits of acceptability, ­after which regulators found it impossible to withstand public pressure or ignore the damage to Thailand’s image. Regulators ­were compelled to take action against an industry perceived to have become intolerable. Although many in the press and among academics depicted the Thai government’s response to the Baby Gammy case as purely reactive, the real­ity was that the publicity around the case served to animate the government to pass legislation that had been moldering in legislative limbo since 2010. Although the government’s response was characterized by many as a “knee-­jerk” reaction to an exceptional case stirred up by tabloid hysteria, by the time the Baby Gammy case occurred ­there had been a series of controversial incidents in the surrogacy industry in Thailand (and elsewhere). Rather than the new Act representing a knee-­ jerk reaction, the legislation had been awaiting parliamentary endorsement for some time and was the result of lengthy consultation. The Baby Gammy case and similar controversies had other consequences. They tarnished the image of IVF doctors and assisted reproduction and “denaturalized” the technologies—­restigmatizing their use as something potentially unethical or morally questionable. The revelations involved high-­profile doctors and their private clinics found to be in breach of Thai Medical Council guidelines. Their involvement in commercial ova donation, nonmedical sex se­lection, and commercial surrogacy eroded the image of doctors in the early days of IVF as skilled, benevolent, and altruistic—in short, as trustworthy for the ethical management

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of life. The commodification of the industry and the potential exploitation of ­women’s bodies triggered distress in a society already acutely sensitive about the presence of a large sex trade for foreigners. More than anything the use of ­these technologies revealed the contradictions in Thai society, the differences between public face and what may be done privately. It also highlighted the exploitative potential of an ART market that takes advantage of countries with l­ ittle or no regulations in place. A consistent theme throughout the history of assisted reproduction in Thailand is its association with nationalist discourse, ­whether by valorizing the technical skill of Thai scientists in competition with other parts of Asia, or by asserting Thai values in the face of corrupt “Western” commodification or the colonization of Thai w ­ omen’s bodies through surrogacy. The passing of the restrictions on the surrogacy industry asserted the NCPO’s emphasis on “Thai values” and reflected ongoing nationalist concerns with Thai w ­ omen’s bodies as symbolic bound­aries of the Thai state. It is a history that has included cele­bration of the birth of Thailand’s first IVF baby, “Mung Ming,” with national pride and won­der, as well as reactions of dismay and shame to the story of Baby Gammy. Above all, Baby Gammy came to serve as an icon of the complex exploitative and damaging potential of unfettered commercial surrogacy. Regardless of the facts of the case or motivations of the parties involved, Baby Gammy represented the ultimate vulnerable child, the protection of whose rights and ­future must take pre­ce­dence in any surrogacy arrangement. As I describe in the following chapter, the effect of the introduction of the legislation in Thailand was to move the commercial surrogacy trade elsewhere and drive the practice underground in Thailand.

8 • NEW DESTINATIONS, NEW M ARKETS

Cheng and Guoliang took lots of photo­graphs of their babies on their phones, and Pui took some photo­graphs of them holding the babies. When I met them, Cheng was thirty-­two years old and a proj­ect man­ag­er and Guoliang was thirty-­eight years old and an interior designer. They Skyped their parents in Beijing, showing them the babies. Cheng explained that his ­mother cried when she saw them. He expressed concern that the babies slept so much. I told him that newborns sleep between twenty and twenty-­two hours a day at this age. They ­were ­going to ask the facilitator to arrange a nanny to help them look ­after the twins. The babies w ­ ere eventually put back into their basinets and a nurse came to wheel them back to the nursery. We said our farewells to Pui, her ­children, the surrogate Sasithorn, and her ­sister. I arranged to meet Cheng downstairs for an interview as he spoke good En­glish. He told me, [We wanted to start a f­ amily] three years ago. B ­ ecause it’s, like, steps for life; p­ eople sometimes have lots of steps: maybe for school, for marriage, for having babies and maybe, I ­don’t know, moving to another city. Every­one has choices. Three years ago, [his partner] deci­ded to have a baby and it was like something needed to change. First, for me, I just worry about and ­don’t understand how can you buy a baby? First of all, it’s of course e­ ither illegal or l­ egal. Second of all, maybe they are liars; they just want to take your money. You ­don’t know every­thing. And the baby may be born but ­they’re not very healthy. ­Because having a baby is very long-­term, so you cannot control every­thing. Sometimes p­ eople just freak out, and you c­ an’t control it, and you have to take a lot of risks. . . . ​So it’s very difficult too. Of course, some ­people understand and some d­ on’t understand; you always have that. In China we have the same ­thing [surrogacy], but it’s underground. You cannot put it on the ­table. Having a baby is not like buying an apartment or buying something; it’s not just that you pay for something and you can take it home. First you need to think about your life; it’s a big decision, what kind of life you want for every­one ­because, 167

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if you d­ on’t prepare and a­ ren’t ready to be a f­ ather, a m ­ other, ­don’t do that. If you prepare and are ready, just do it. It’s very good, I think. It’s good to be parents, I think, ­because it changes how you respond to ­people and gives you more experience for life, ­because life is in­ter­est­ing.

Cheng and Guoliang had previously been to Thailand for a holiday. ­After they deci­ded to try to have a baby they got other friends who ­were living in Thailand to look at vari­ous clinics for them. Their first attempt to engage a surrogate was thwarted in 2015 when the Thai military government banned surrogacy. A year and a half ­later, this time with a dif­fer­ent facilitator, they tried again, and this led to the birth of their twin d­ aughters. They had come to Thailand twice for surrogacy, initially for ten days when they deposited sperm and ­later during the pregnancy at around six months’ gestation to meet with their surrogate. The embryo transfer took place in a clinic in Siem Reap in Cambodia. They ­were not able to choose their surrogate, and they had been concerned that she was a l­ ittle older than they had expected, but the facilitator Pui had assured them that she “was the best.” Cheng said the pro­cess had been stressful and cost them a total of around US$72,400: ­ ere, first of all, we ­don’t know how to get a baby, ­because ­there are a lot of tests H you have to do, and the resources are in En­glish, and lots are in Thai; we ­don’t understand every­thing. And especially maybe in Chinese we ­don’t understand too, ­because it’s medical language, and we d­ on’t understand the words. So this is the first prob­lem for us, and the second is the cost: the first test is not good and you have to pay another cost for this, and we d­ on’t understand why and how. So sometimes we just worry about that. And we learn knowledge in Chinese, but sometimes [the terms used] are dif­fer­ent b­ ecause it’s not [a] normal [pregnancy]. Like, ­people have babies, pregnancies and then have two or three weeks to have tests in hospital, but h­ ere we cannot see every­thing. I saw just from the email. Pui says if something happens, something good, something not very good, and, “You have to pay this, you have to pay this.” So we have a contract in writing like that, and if something happens nobody w ­ ill take responsibility for that. Maybe it w ­ ill be a big cost to you, maybe not. You have to pay again from the beginning. ­Because ­here [in Thailand] it’s maybe not very expensive, but still it’s very big money for us.

I asked how Cheng and his partner felt about the surrogate: Maybe ­because we speak dif­fer­ent languages, but we have the same feelings, we are ­human beings. We understand what ­we’re asking. At first I wondered ­whether when the babies w ­ ere born, w ­ hether the surrogate mum cannot see the babies anymore. . . . ​But now it’s dif­fer­ent, it’s okay for us [that she sees them], ­because she was pregnant nine months, the babies are from her. But still the same. I know



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t­ hey’re very complicated feelings: sometimes sad, “It’s not my baby being born but other p­ eople are paying money to take it away.” But for us, of course, we are very sensitive to that ­because just the opportunity to have a ­family, to have a ­family is happiness. I think it’s right, ­because she has the skill to help ­people and we can pay—­maybe it’s okay or it’s not—­but, “You agree with me, I agree with you. You help me to do that.” Of course, sometimes it’s not like business, but I think ­people helping ­people is okay, but I know feelings, from this moment, is very hard: leaving the babies is maybe a l­ittle hard, I know. It’s okay, I think, for us, b­ ecause we ­don’t know her [the surrogate] so much. I know and sometimes it’s very hard, okay, I know, but I ­don’t know if we can do something for her, just buy her something, and we hope that every­thing is good, that’s all.

Apparently, at time of my interview with Cheng and Guoliang, the Chinese embassy in Thailand had no clear pro­cess in place for dealing with surrogate ­children born to Chinese ­couples. Cheng said that this made ­things very stressful for them as they had no idea how long they would have to stay in Thailand, how difficult the exit procedures would be, or w ­ hether they would be able to obtain residency permits for the twins: We need to do documents for the babies: passport, visa, and the baby a­ fter just one month can go on a plane. So the minimum we ­will stay ­here is one month, and it depends on the passport and visa, then ­we’ll go back to China. . . . ​Another stress is prob­lems with the visa for the passport: it’s not very easy to get it, ­because with the Chinese embassy we ­don’t know yet. They sometimes d­ on’t do that . . . ​ [it’s] an experiment. So we still have the same prob­lem on the Chinese side ­because we need a form for the babies. In China, it is very difficult b­ ecause, if you are not born in China, the Thai passport is not good for us.

The morning a­ fter the twins w ­ ere born, Cheng and Guoliang went back to the hospital at eight ­o’clock to learn how to bathe the babies. The lead-up to the birth was a busy time for them—­they had arrived from Beijing only three days prior and moved into an apartment, and w ­ ere busy buying t­ hings for the babies. Guoliang’s parents, who are aged in their seventies, arrived two days ­later to see the babies (field notes, Bangkok, 2016). Cheng and Guoliang represent the new face of surrogacy in Southeast Asia—­ Chinese parents undertaking “hybrid” surrogacy arrangements across borders to circumvent laws banning commercial surrogacy in Thailand and the ­legal ban on any form of surrogacy in China. Their case demonstrates that births through commercial surrogacy continue to take place in Thailand with Thai surrogates, despite the bans and lack of clear exit procedures for Chinese parents. According to all facilitators I spoke with in the region, the Chinese market for assisted reproductive ser­vices of all kinds is booming, due to a number of ­factors including the

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relaxation of the one-­child policy in China; high rates of infertility; the availability of nonmedical sex se­lection in clinics in countries such as Laos; and the growing wealth and spending power of the Chinese m ­ iddle class, who may not be able to afford to undertake surrogacy and produce so-­called “parachute ­children” in the United States, but can afford to finance their dreams of a ­family in Southeast Asia. Cheng and Guoliang’s story also shows that p­ eople w ­ ill continue to pursue forming families through surrogacy even when unsure of the legalities regarding the citizenship of the ­children produced. In this book, I have described the growth of a “disruptive” surrogacy industry in Asia that has a number of characteristics in common with other neoliberal disruptive industries. It superseded more bespoke forms of commercial surrogacy and created mass availability, rapid accessibility, and new demands for surrogacy ser­vices. This model spread across a number of Asian jurisdictions: most notably India, Nepal, and Thailand. As I described in previous chapters, since 2014– 2015 controversial cases of criminal trafficking, the abandonment of ­children, and ­legal complications involving ­children being left stateless led to the closure of commercial surrogacy and restrictions on all forms of surrogacy in several countries. ­Table 8.1 lists the vari­ous events that triggered the movement of companies and the development of new hubs for assisted reproductive ser­v ices, “reprohubs” (Inhorn 2014), in Asia. As can be seen, the regulatory interventions implemented in one country have direct consequences for the development of surrogacy in other countries. Since 2015, new destinations have emerged in Asia that utilize more complex “hybrid” models and mobility to facilitate commercial surrogacy arrangements. Just as the ban on surrogacy for gay c­ ouples in India affected the growth of surrogacy in Thailand, so too did the banning of commercial surrogacy in Nepal and Thailand lead to the emergence of Cambodia as a destination. The ban on surrogacy in Cambodia likewise has now led to the establishment of clinics in Laos.

New “Reprohubs” As the industries closed down in India, Thailand, and Nepal, new destinations appeared within the geography of surrogacy. Marcia Inhorn (2014) uses the term “reprohubs” to describe ­these locations in which clinics, expertise, intended parents, and surrogates meet. In many re­spects, ­these new destinations offer geospatial ­legal configurations rather than anything new. Destinations such as Canada, Ukraine, Georgia, and Mexico have begun to be promoted in recent years. Surrogacy in Canada has been promoted as more affordable than that available in the United States, as the Canadian public health system reduces the costs of medical care during a surrogacy pregnancy. Although surrogacy has long been available in Ukraine, the country does not allow gay surrogacy, and the war in parts of the country has made it less desirable as a destination. Likewise, Georgia is beginning

­Table 8.1

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Timeline of events that triggered the development of new “reprohubs” in Asia

Date

Event

July 9, 2012

Closure of surrogacy for gay couples/singles, India

January 2014

50 Israeli babies stranded in Thailand

July 22, 2014

Thai report on sex se­lection finds number of clinics in breach of Thai Medical Council guidelines—­investigation launched into twelve “targeted” clinics

August 2014

Baby Gammy case breaks in press

August 2014

Japa­nese “baby factory” case breaks—­serial surrogacy fifteen babies

November 2014

Cambodian authorities advise Australian government that commercial surrogacy is illegal in Cambodia

January 7, 2015

Ban against Australian ­couples receiving surrogacy visas, India

April 25, 2015

Earthquake in Nepal, controversy over evacuation of Israeli babies

May 1, 2015

Closure of surrogacy for foreign nationals, Thailand effective July 30, 2015

August 25, 2015

Closure of surrogacy for Foreign nationals, Nepal

November 4, 2015

Indian government announces ban on surrogacy for foreign nationals, and bans import of embryos for assisted reproduction

December 15, 2015

Closure of ­legal surrogacy in state of Tabasco, Mexico

October 24, 2016

Cambodia announces ban on surrogacy—­legislation forthcoming

November 20, 2016

Australian facilitator arrested in Cambodia for trafficking

to promote itself as a destination, but remains better known within Eu­rope than elsewhere, and like in Ukraine, it is not l­egal for gay c­ ouples to undertake surrogacy ­there. Although Mexico has long been a destination for North and South American intended parents seeking surrogacy, it is a relatively new destination for the Asia-­Pacific market. It enjoyed a brief rise in interest around 2014–2015 as a result of greater promotion to Australian c­ ouples. However, following several l­ egal cases and allegations of exploitation in Mexico, surrogacy was banned in the state of Tabasco in December 2015; it continues in some other states (Associated Press 2015). Some countries in Africa are also opening up—­for example, surrogacy facilitators such as Indira IVF and Baby Dust Surrogacy Agency are advertising the possibilities for surrogacy in Ghana (Gerrits 2016), and ­Kenya is fast becoming promoted as an international surrogacy destination due to a number of clinics in Nairobi run by Indian fertility specialists.

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Across Asia, Cambodia, Malaysia, and most recently Laos have opened as destinations in the past few years. Companies and doctors previously in operation elsewhere began to operate in “friendlier” legislative contexts. For example, the com­pany Complete Surrogacy Solutions (CSS) proclaimed on its website (2015), Surrogacy Cambodia, Mexico, and the USA. Complete Surrogacy Solutions on the move! The ever changing landscape of international surrogacy has once again moved us to a new country with a better program and more experienced support than ever. Our November and December groups are completely filled, and the January and February groups are filling fast. We take a limited amount of Intended Parents per group, per year. CSS provides an intimate and personalized surrogacy consulting ser­vice.

Cambodia became the destination of choice for ­those seeking low-­cost surrogacy following the banning of surrogacy in Thailand. Major IVF clinics in Cambodia include the Fertility Clinic of Cambodia (FCC), based in Phnom Penh (since September 2014); New Life Clinic in Phnom Penh; and Angkor Clinic, based in Siem Reap. Th ­ ese clinics employ both Thai and Western IVF professionals, some of whom are “fly in fly out” (FIFO), who conduct the clinical work; procedures such as embryo cultures and transfers are timed to coincide with their visits. ­Until the 2016 ban on surrogacy in Cambodia, a range of surrogacy agencies and agents utilized ­these clinics. Some ­were Thai-­based firms such as New Ge­ne­tics Global, which worked with FCC; Talent IVF, run by a Thai Australian, which used Angkor Clinic for embryo transfers to Thai surrogates; and Fertility Solutions, run by an Australian w ­ oman, which was formerly located in Thailand and offered ser­vices through FCC. Other facilitation companies that w ­ ere offering surrogacy in Cambodia included My Fertility Angel, set up from a surrogacy com­pany formerly based in Nepal; the Florida-­based com­pany CSS, discussed above; and the agency Sensible Surrogacy, run from Spain. The growing popularity of Cambodia as a site for international commercial surrogacy since 2015 occurred despite unfavorable parental laws in that country. ­Children born through surrogacy had to be registered by the Cambodian government, and ­under Cambodian law, a Cambodian surrogate m ­ other cannot relinquish her parental rights; hence, single surrogates from other countries such as Thailand, Vietnam, and Laos ­were preferred. The other legislation that made surrogacy unfavorable in Cambodia was Article 332 of the Cambodian Criminal Code, which addresses ­human trafficking and outlaws the use of an intermediary between an adoptive parent and a pregnant w ­ oman. It also prohibits a third-­party intermediary from delivering a child from one party to another; however, given that no adoption takes place, interpretations differ on ­whether this law applies to surrogacy.



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Since the introduction of surrogacy ser­v ices in Cambodia, the government made repeated announcements that it considers surrogacy illegal and intended to take action against the industry. In October 2016, Cambodia’s ministries of Justice and Child Welfare sent an advisory notice to all IVF clinics and agents stating that a prakas, a proclamation issued by a government ministry, usually with reference to existing legislation, would ban surrogacy ser­vices as of November 1, 2016. In this case, the prakas is the H ­ uman Organ Transplant Act, which specifies how ­human cells, tissues, and organs may be donated and used. The Act was passed by the Cambodian Parliament on June 30, 2016, in response to concerns over a growing ­human organ trade, and states that implanting cells, tissues, or organs for a commercial purpose carries a ten-­to twenty-­year jail sentence (Sengkong and Handley 2016). As noted in chapter 6, Australian facilitator Tammy Davis-­Charles has been prosecuted and jailed for trafficking offences following her use of Cambodian surrogates for the international surrogacy trade. Within days of the news of the ban in Cambodia, Sensible Surrogacy was advising that intended parents change their destination to Ukraine, the United States, or Canada; offering pos­si­ble discounts to intended parents opting to move their arrangements from Cambodia to the United States; and predicting that surrogacy in Cambodia might move underground (Sensible Surrogacy 2016). In response to the imminent closure of surrogacy in Cambodia, several clinics and facilitation businesses opened in Laos. As of July 2016, a division of New Ge­ne­ tics Global (a firm owned by Thai businessman Josh Lam that previously operated in Thailand and Cambodia) opened an office in Vientiane, Laos. The com­pany’s website (on October 21, 2016) stated, “We work with the top fertility clinics in Vientiane. Most every­one is well-­aware by now of the new laws regulating surrogacy in Thailand, Nepal, India and Mexico. Cambodia is now ­under global pressure to follow suit. Many months ago, we begin researching and putting into place our new location in Vientiane, Laos where surrogacy remains un­regu­la­ted” (New Ge­ne­tics Global 2016). New Ge­ne­tics Global offers PGD for gender se­lection, gestational surrogacy, and same-­sex surrogacy via a range of packages catering to dif­fer­ent bud­gets and requirements. As noted earlier, Talent-­IVF, operating out of Thailand, also arranges surrogacy in Laos. Other agencies, such as Indian-­based World Fertility Ser­vices, are also advertising their Laotian options. On its website this com­pany states, “Vari­ous months earlier, we begin [sic] investigating and setting up our new regions in Laos where IVF stays un­regu­la­ted. We also have a totally arranged homes for antenatal and postnatal thought, nearby a staff of submitted capable watchmen.” World Fertility Ser­vices also states, “In the brief timeframe of traverse Laos is developing as one of the best nations for surrogacy in Laos, in light of the fact that the treatment is conveyed by the specialists and the g­ reat surrogacy achievement rate with including moral practice made it more lovable. Indeed, even they are master in all sort of surrogacy technique with including the other IVF treatment too” (World Fertility Ser­vice 2017).

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One of the major IVF clinics used by such agencies in Vientiane, IVF Laos International, is headed by Dr. Pisit Tantiwattanakul, former executive director, fertility specialist, and embryologist at head of the All IVF Centre in Thailand, which was closed following the case of Japa­nese businessman Mitsutoki Shigeta discussed in chapter 6 (Murdoch 2014a). In moving the com­pany’s operations to Vientiane, Dr. Pisit was able to continue to work despite his damaged reputation in Thailand. Yet already t­ here have been rumors that surrogacy in Laos may also be banned. In 2017, a man was arrested for smuggling semen over the border between Thailand and Laos (Murdoch 2017b), intended for IVF clinics in Laos. This drew attention to the movement of gametes and surrogates over the border. A ­later arrest by Thai Customs involved one Thai man and six Thai ­women who had traveled to Laos for embryo transfer for a Chinese facilitator based in Bangkok (Anonymous 2017d). Although the man was charged with an importation violation, the ­women ­were released as they had not ­violated the law. This case has prompted increased vigilance on the Thai-­Lao border and calls for a tightening of the current l­ egal ban (Anonymous 2017c, 2017f). In June 2017, the VIP Clinic suspected of being involved in surrogacy was shut down by Lao authorities for operating without a permit (Radio ­Free Asia 2017). The lack of consistent legislation on surrogacy in this region means that the movement of surrogates for embryo transfers across borders to circumvent local legislation ­will continue. In March 2015, Vietnam moved to tighten its surrogacy legislation by amending its Marriage and ­Family Law 2014 to allow only “altruistic” gestational surrogacy. Surrogates in Vietnam can receive no financial benefits or reimbursement for expenses. The legislation also requires eligible ­couples and surrogate ­mothers to register with a government agency and restricts surrogacy to three state hospitals (Anonymous 2017e). It is not clear ­whether this ­will stop the movement of Viet­nam­ese w ­ omen across borders to act as surrogates. A less popu­lar and legally problematic new destination advertising international ova donation and surrogacy is Malaysia. Although the country has long been a destination for c­ ouples from Singapore seeking IVF, Malaysian clinics have begun to advertise the possibilities more widely. For example, an Australian ex-­ nurse has moved her Asian egg donation ser­v ice MYfertility to Malaysia. She started her business in Thailand in 2006, but, following the ban on commercial surrogacy and ova donation t­ here, relocated to Malaysia; her com­pany remains affiliated with a clinic in Thailand. Likewise, TMC Fertility in Selangor advertises the availability of ova donation for foreign ­couples. I was assured by one clinic represented at a conference in Spain in 2016 that surrogacy could be arranged in Malaysia. In Malaysia, Islam is the official religion, and a fatwa (an Islamic religious ruling) banning all forms of third-­party assistance (that is, gamete donors and sur-



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rogacy) was issued on June 12, 2008 by the National Council of Islamic Religious Affairs.1 However, for non-­Muslims t­ here is no civil law on surrogacy. Malaysian parentage laws limit the attractiveness of Malaysia as a destination for surrogacy as they do not recognize the biological ­father of the child born by an unmarried surrogate, while the husband of a married surrogate is recognized as the ­legal ­father. Hence, it is necessary for intended parents to legally adopt a child born through surrogacy in Malaysia. Malaysian law does not grant citizenship to ­children born of foreign parents in Malaysia; therefore, t­ here is the possibility that a child could be considered stateless if it w ­ ere not to gain the citizenship of its surrogate ­mother if the m ­ other is foreign. The provisions of the Malaysian Anti-­ Trafficking in Persons Act 2007 also need to be considered in the context of foreign surrogates being flown into the country by commissioning parents, as ­these parents need to be able to prove that no coercion or exploitation has taken place (Lin 2015).

The “Hybrid” Organ­ization of Surrogacy and FIFO Surrogacy In response to the bans on surrogacy across Asia, the industry introduced more flexible business models whereby surrogates, embryos and gametes, as well as medical staff are moved across borders, through what is termed “hybrid” surrogacy arrangements. This involves moving surrogates and ova donors across borders to jurisdictions to circumvent local laws and regulations regarding commercial donation, or moving the pro­cess to clinics in countries where embryo transfer can take place beyond the reach of the ­legal restrictions imposed by home countries. As a gestational surrogacy cycle can be segmented, in its extreme form it is pos­si­ ble for a biological ­mother or ova donor to undergo preparation for ova donation in one location, and donate ova, culture, and freeze embryos in another location, while a surrogate may be prepared for transfer in one location, travel to a clinic for embryo transfer elsewhere, gestate the pregnancy in another place, and then travel somewhere ­else to give birth. This allows for supply chain segmentation across the pro­cess, which not only enhances the ability of the business to adapt ser­vices to suit the l­egal requirements of clients, but also makes regulation difficult and enables greater profits to be spread across the supply chain. This model of hybrid circumvention has been practiced previously by a few multinational facilitation companies, the largest of which is based in Ukraine and for many years has offered to fly surrogates and ova donors from vari­ous countries to and from Ukraine for treatment. I describe this form of surrogacy as FIFO (fly in fly out)—­a term used in Australia to describe workers in extractive industries such as mining who regularly fly into their remote workplaces, and fly out again to return home at the end of their fortnight’s work. This term captures the

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similar extractive nature of surrogacy and ova donor arrangements. Fertility specialists can also be FIFO workers, who fly in and out of countries plying their infertility and embryological skills and bringing techniques and know-­how to places that may lack such expertise. In her study of the movement of the transnational trade in ova, Michal Nahman (2011, 627) uses the term “repro-­migration” to highlight the continuities between ­these border crossings and other forms of global mobility. Hybrid ser­vice models also now operate across the Canada-­US border, with clinics in Oregon using Canadian surrogates who return home to Canada to utilize the Canadian National Health system during their pregnancies, thereby providing a more affordable surrogacy option for intended parents. The use of Canadian surrogates also appeals to Australians who reside in states that have banned their residents from engaging in commercial surrogacy overseas as surrogacy in Canada is considered technically “non-­commercial.” Similarly, in Asia a former facilitation com­pany based in Singapore, Asian Surrogates (2012), used to contract surrogates from countries throughout the region like the Philippines to act as surrogates in other countries such as Thailand for clients from a range of countries including Canada, the United States, France, Belgium, Germany, and Denmark. As “one-­stop” surrogacy countries have become increasingly rare and legally fraught, the creative fragmentation of the supply chain into a number of dif­fer­ent stages, each carried out within dif­fer­ent jurisdictions, has become the norm. However, with this model comes greater l­egal complexities and vulnerabilities for the reproductive assistors (ova donors and surrogates), intended parents, and c­ hildren born of ­these arrangements. To illustrate how such FIFO arrangements work, I describe briefly how one surrogacy agency is currently operating out of Thailand. Despite the bans on the facilitation of commercial surrogacy in Thailand since July 2015, several companies continue to offer ser­vices using ­either Thai, Laotian, or Viet­nam­ese surrogates. The clinical setup for embryo transfers can be relatively ­simple and flexible should the clinic not wish to invest in full IVF lab facilities. ­Women can undergo their preparation in Thailand, travel to Laos for an embryo transfer, and then return to Thailand to give birth. E ­ ither the embryos can be prepared elsewhere and frozen for travel to Laos, or gametes can be transported to Laos and used in traditional surrogacy without IVF or combined using IVF lab facilities in Laos. For example, Sasithorn, the Thai surrogate carry­ing the twins for Cheng and Guoliang, traveled to Siem Reap for the embryo transfer and then returned to Thailand for the remainder of the pregnancy and to give birth. As noted above, in May 2017 six Thai ­women ­were detained ­after traveling across the Lao border for embryo transfers (Anonymous 2017c). They w ­ ere traveling together in a van with a man and a nitrogen tank, and hence ­were highly vis­i­ble; yet, with greater discretion, such movements are almost impossible to detect.



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In July 2016, I spoke with Aelan, a Laotian surrogate who was four months pregnant at the time for a c­ ouple from Melbourne, Australia. She had first migrated to Thailand when she was twelve years old to seek work. As a surrogate, she too had traveled to Cambodia for the embryo transfer, and when I met with her she was staying in Thailand for the duration of the pregnancy and was planning to travel to give birth in a hospital close to the Laotian border with Thailand. She would then travel back to Laos with the baby, where the exit arrangements would be or­ga­nized for the Australian biological parents. By undertaking embryo transfers in other jurisdictions as well as transfers to parents in home countries, such arrangements avoid prosecution ­under Thai laws. However, they take advantage of the superior hospital facilities in Thailand, where their surrogates give birth, ­under the guise of being like so many other middle-­class Laotians traveling to Thailand for medical care in private hospitals. As the facilitator for Aelan explained, “­there are no good hospitals in Laos.” Although she spoke with no irony, her explanation speaks volumes to the economic differentials and inequalities inherent to this model of surrogacy. A recent case in Taiwan indicates that Thai surrogates are also traveling further overseas for surrogacy arrangements. On May 3, 2016, a Taiwanese ­woman was charged with making an illegal surrogacy arrangement that involved paying a Thai ­woman to bear a child for a man from Taiwan. The Thai surrogate traveled to Cambodia for the embryo transfer using ova from another Thai donor, and then continued the pregnancy in Thailand. Closer to the birth, she traveled to Taiwan to give birth but medical staff became suspicious about her relationship to the Taiwanese man and reported the birth to the immigration authorities. Although neither the f­ ather nor the surrogate was liable for prosecution, the facilitator in this case was charged and ­faces a fine or prison term of up to two years ­under the Artificial Reproduction Act (Lu, Kuan, and Hou 2016). In this way, although commercial surrogacy is banned in Thailand, the country remains an impor­tant reprohub in the region. Ms. D works for a facilitation agency that operates in Laos. She commented, [Intended parents say,] “Oh like we thought Asia has shut down.” And so it was ­great to be able to say, “Well no it h­ asn’t, yes some laws or rules have changed, absolutely, but it ­doesn’t mean this ­whole Asian area can no longer do international surrogacy. You just need to know [how],” and that’s why I think a lot of the foreign . . . ​the foreign agents that had come in [to Thailand], during the, let’s call it the heyday of surrogacy in Thailand, that’s why they just dis­appeared ­because they d­ on’t have the history of already being in the country. They ­haven’t spoken with government officials over the years, they ­don’t know how it all works. And every­thing is in Thai language so when t­ hings went bad they just left. As opposed to all the local agents that have been in this industry for

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long enough, they know how to interpret ­things they know what, yeah, I mean military rule comes in but you look around, it certainly ­doesn’t look or feel like military rule.

Conclusion As noted above, international surrogacy is also being promoted to new markets. Wealthy Chinese ­couples have long undertaken surrogacy in the United States, where an additional advantage is that ­children born in the United States—­so-­ called “parachute c­ hildren”—­carry US citizenship. With the rising wealth of the ­middle class in China and the relaxation of the one-­child policy, the demand for surrogacy both within and outside China is growing. U ­ nder rules established by the Ministry of Health in 2001, it is illegal for any medical personnel or institute to offer surrogacy ser­vices in China. Trading in sperm, ovum, fertilized eggs, and embryos is also illegal (Minter 2015; Anonymous 2017a). Yet a 2017 article in the South China Morning Post (Yan 2017) claimed that the com­pany AA69 had arranged more than ten thousand surrogacies in mainland China since 2004. According to a 2014 report in the New York Times ( Johnson and Li 2014), companies such as Bangkok BB Baby Proj­ect, Baby Plan Medical Technology Com­pany, and AA69,have been offering hybrid surrogacy arrangements to Chinese c­ ouples to circumvent local restrictions. ­Under such arrangements, Chinese surrogates, usually rural ­women, are flown to Bangkok for embryo transfers and then returned to China to give birth to babies in private clinics where their identities are removed from the birth certificate. Baby Plan Medical Technology has four clinics in China and arranges over three hundred surrogacies a year. Although this is a relatively small number given the Chinese population, it represents a significant market for surrogacy in nearby Southeast Asia. The total number of Chinese babies born overseas through surrogates is unknown. Facilitators have quickly responded to the changing market. For example, the website for ThailandFertility (2017), which features an “interview” with the com­ pany’s owner “Cathie,” notes, cathie: Prob­ably 60% of our clients are Chinese and we receive many inquiries from Mainland China, Hong Kong, Taiwan and Singapore. Also, ex-­pats from Australia, the USA and other countries living in Asia. We are helping lots more Chinese ­couples as our Chinese egg donor program is very popu­lar with them and is one of the few in Asia where you can view photos of donors and actually choose your donor. Most clinics do not allow that. interviewer: What about language? Do you have Chinese staff? cathie: Yes, all my Chinese Program staff are fluent in both spoken and written Mandarin and also a ­couple of Chinese dialects. Our medical team also speak Mandarin so communication is definitely not a prob­lem.



New Destinations, New Markets 179

As new demands for the bodily ­labor of surrogates and affordable surrogacy are created and promoted in China, the surrogacy industry w ­ ill no doubt respond, expanding ser­v ices into new territories and moving surrogates, ova donors, embryos, and gametes across borders in a model of surrogacy that epitomizes post-­Fordist cap­i­tal­ist ventures. In this context, countries have three alternatives: ignore the trade, ban the trade entirely, or attempt to regulate it to provide some protections for ­those enmeshed within it. As I have described in this chapter, bans have merely created new market opportunities and transformed surrogacy into mobile hybrid forms that could be argued to make surrogates, donors, intended parents, and c­ hildren more vulnerable. In the final chapter of this book, I discuss the regulatory landscape in Asia and consider what forms of regulation might be feasible.

CONCLUSION The ­Future of International Surrogacy

We live in a world of “overlapping communities of fate” . . . ​where the trajectories of each and ­every country are more tightly intertwined than ever before. . . . ​In a world where [power­ful states make decisions not just for their own ­people but for ­others as well, and] transnational actors and forces cut across the bound­aries of national communities in diverse ways [and] the questions of who should be accountable to whom, and on what basis, do not easily resolve themselves. (Held 1998, 21–2)

In the current global market, international surrogacy offers an opportunity for reproduction to t­ hose who are other­wise unable to access surrogacy ser­vices. In this book, I have argued that the organ­ization of the disruptive model of surrogacy that evolved in Asia has produced a range of vulnerabilities for t­ hose enmeshed within it. It is an industry that is characterized by its flexibility, rapidly responding to change and opportunities; it is multinational, with many clinics and facilitators working across borders; it positions surrogates and ova donors as in­de­ pen­dent contractors to maximize flexibility while providing few protections; it utilizes social media to develop and promote its market; and it extracts value from bodies on the basis of the economic differences between surrogates and intending parents. Like many emerging post-­Fordist industries, it is “disruptive,” providing new surrogacy and ova options to the market and creating new demands for what was previously a restricted resource. Its practices and organ­ization produce differential vulnerabilities across socioeconomic divides for intended parents, surrogates, and c­ hildren. I have shown how this industry profits off the local moral economies that valorize w ­ omen’s roles as gestators and b­ earers of c­ hildren, the imperative for biological parenthood, and the growing ac­cep­tance of and desire for gay parenting. Like many of the new disruptive industries of our age, it also thrives on a lack of regulation. The popu­lar destinations in Asia for international surrogacy in the 2000s all had ­little or no regulations governing surrogacy. In this conclusion I consider the nature of regulation, in par­tic­u­lar ­whether it is pos­si­ble to limit some of 180

Conclusion 181

the potential harms and vulnerabilities of international surrogacy through regulation. David Held (2000) describes how, u­ nder conditions of globalization, the fortunes of po­liti­cal communities are increasingly tied together via a diversity of structures and pro­cesses as “communities of fate.” National communities do not make decisions exclusively by themselves that affect only their own citizens; rather, their decisions have ramifications across other nations. Held suggests that in the ­future new forms of governance aimed at tackling transborder issues need to be developed if we are to build a more accountable form of globalization.

Regulation Before we can consider ­future options for regulation, we need to understand the pro­cesses of regulation. Regulation can be defined as “sustained and focused control exercised by a public agency over activities that are valued by a community” (Selznick cited in Baldwin, Cave, and Lodge 2012, 3), but the term is used to describe a specific set of commands, deliberate state interventions, or vari­ous forms of social and economic influence that affect the be­hav­ior of a host of bodies such as corporations, professional or trade organ­izations, and voluntary groups. Regulation shapes the relationships among citizens, businesses, and the state. Regulation may e­ ither be restrictive, preventing the occurrence of certain activities, or enabling and facilitative, allowing certain be­hav­iors to occur. Four broad types of regulatory approach are distinguished in the lit­er­a­ture on governance and regulation (Baldwin, Cave, and Lodge 2012). ­These include the “command and control” or interventionist approach in which the state is the leading actor in setting and enforcing regulations. This usually involves “hard” law—­ legislation and statutory regulations that prohibit or constrain certain actions. The second approach is a voluntary one whereby ­there is encouragement of voluntary norms, codes of conduct, and standards led by civil society, industry groups, or, occasionally, international standards organ­izations. Such self-­regulatory agreements are called “soft law,” and include norms and princi­ples that govern actors’ be­hav­ior. In traditional self-­regulatory schemes, the state takes a secondary role. Third, ­there is the market-­based approach whereby consumers play an active role in determining norms through the choices they exercise in the market. Fi­nally, a hybrid approach, which combines aspects of the other three approaches, may be taken. For example, in Thailand, ­until the introduction of related legislation in 2015, all forms of assisted reproduction w ­ ere regulated solely through soft law guidelines issued by the Thai Medical Council. The council was established u­ nder the Medical Profession Act B.E. 2525 (1982) and carries responsibility for the system of medical registration, practice standards, professional ethics, and disciplinary control mea­sures (Medical Council of Thailand 1996). Regulation was primarily

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conducted via the licensing of prac­ti­tion­ers and clinics. The council also has the power to deregister any member of the profession deemed to be bringing the profession into disrepute. This soft law approach allowed for self-­regulation by clinics combined with a market-­based approach whereby consumer demands largely determined the organ­ization of the industry as it developed. However, since 2015, the “hard law” introduction of bans on surrogacy in Thailand was consistent with the highly hierarchical system of military government. Yet, as noted in the previous chapter, despite such hard law regulation, international commercial surrogacy has continued in the region in modified hybrid forms.

Surrogacy and Regulatory Failure How, then, can the regulation of international surrogacy be implemented in Southeast Asia? Baldwin, Cave, and Lodge (2012, 74–75) suggest that regulatory failures are a result of both insufficient resources and the epistemological limitations of “failures of imagination”—­that is, linked to beliefs about why and how regulatory interventions work. In the case of surrogacy, both ­factors are at play. ­There are insufficient resources directed t­ oward the regulation of surrogacy in the region. For the lower and middle-­income countries of the region, other, more pressing issues take pre­ce­dence in the allocation of government time and resources. In countries such as Thailand, Laos, and Cambodia, the costs of monitoring and enforcing a regulatory regime can be prohibitive, which limits the range, effectiveness, and sustainability of regulatory efforts. Often emphasis has been placed upon the licensing of clinics in order to judge and maintain standards of entry rather than on the more expensive ongoing monitoring of activities. In the case of Thailand, prior to 2015 the regulation of assisted reproduction depended upon “relational governance,” based upon normative expectations within the medical profession rather than involving outsiders or government. This was partly successful, but the Thai Medical Council was never funded sufficiently as a regulatory body capable of monitoring and enforcing its own guidelines.

Inadequate Models of Regulation I suggest that current regulatory models are too static and spatially bound for the disruptive form of international surrogacy we now find in the region and suffer from “failures in imagination” to devise new adaptive models suitable to the industry. A number of characteristics of the assisted reproduction industry that formed during the late 1990s u­ ntil 2016 in Asia have made effective regulation difficult. International surrogacy is ­shaped by distinctive dynamics that render regulation by individual states largely irrelevant. As described throughout this book, the disruptive model of surrogacy involves fluid, globalized, small-­scale business

Conclusion 183

models that hinge around mobile agents, surrogates, and clients. Facilitation companies are mercurial, dispersing and recoalescing into new forms if disturbed. While clinics need physical facilities and laboratories, facilitation companies can run with l­ittle more than a business address, an internet connection, and a cell phone. Surrogacy businesses can relocate rapidly in reaction to legislative change, to locations with supportive or no legislation. They can undertake their transactions via social media and cyberspace and can arrange surrogacy to circumvent local laws. This highly fragmented, dynamic, diverse, and opaque environment is not conducive to the prevalent models of regulation, w ­ hether implemented through “command and control interventions” or voluntary approaches and self-­ regulatory procedures. Much of the lit­er­a­ture on regulation presumes that a state’s capacity to regulate is limited only by po­liti­cal w ­ ill. The principal regulatory models derive from the North Atlantic states of Eu­rope and the United States. A Weberian regulatory model is based upon a notion of the “rule of law,” which defines regulation in terms of stable, rationalized, predictable, and codified rules that are technocratically enforced by neutral and in­de­pen­dent third-­party agents (Dowdle 2011, 576). This is a model that has arisen only recently out of advanced Fordist industrialization or “managerial capitalism” and is dependent upon social and economic structures derived from this form of capitalism such as the stabilization of national socioeconomic space, which allowed regulations to have predictable effects across the nation; the concentration of capital into national-­sized entities, which facilitates the monitoring and enforcement of t­ hese rules; and the development of a professionalized managerial class with the skills necessary to administer large-­scale organ­izations. States with dif­fer­ent histories, socioeconomic structuring, and transnational, economic, and geo­graph­ic­ al dynamics may find that regulation grown from a Weberian regulatory model works less effectively (Dowdle 2011). Likewise, the nature of individual governments may limit the effectiveness of regulation. For example, Cambodia has notable prob­lems with official corruption, and the Laotian socialist government reacts slowly to the rapidly changing technological landscape and has ­little experience with regulating entrepreneurial small business ventures. Thailand’s current military regime imposed strict legislative rules, but this has driven many practices underground, beyond any regulatory gaze, and its restrictions on civil society organ­izations discourage them from taking a lead in regulation. Further, none of ­these countries has industry groups that might play a role in regulation. In all three countries, national medical associations regulate clinics and doctors but have no authority over facilitators or the activities of doctors across borders. The secrecy and patient confidentiality surrounding surrogacy procedures also make it difficult to document abuses and monitor or support regulatory decision making. Likewise, the self-­interested be­hav­ior of some fertility specialists, many of whom have private clinics and a

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commercial interest in maintaining the surrogacy industry, in conjunction with a reluctance among members of the medical profession to criticize each other, means that self-­regulation usually fails to provide sufficient safeguards. The instability of the surrogacy industry in Southeast Asia due to the volatility of companies’ locations, owner­ship, franchises, and country of registration further obstructs regulation. Predominant regulatory models assume a more stable core environment. Fi­nally, dif­fer­ent states have dif­fer­ent levels of accountability to their citizens. In this regard, it might be argued that some states lack both the means and the motivation to assume responsibility for the well-­being of their citizens, and certainly few in Southeast Asia have demonstrated care about the well-­ being of surrogate or intended parent noncitizens. As an example, t­ able C.1 lists the vari­ous regulatory failures that pertained to international commercial surrogacy in Thailand. ­These related to a range of issues including the nature of the medical profession and its vested interests, the resourcing of the Thai Medical Council, the lack of an in­de­pen­dent monitoring agency, the speed of the development of the industry, as well as the unstable po­liti­cal environment that worked against the introduction of legislation in a timely fashion. I identify eight regulatory failures surrounding the disruptive surrogacy industry that developed in Thailand. ­These included the laissez-­faire regulation that favored the interests of par­tic­u­lar groups, in this case the medical profession and patients, giving ­little protection to surrogate or ova providers. In addition, the information asymmetries due both to patient confidentiality and the “cultural aphasia” surrounding surrogacy made transparency and monitoring difficult. Surrogacy was also subject to a layering of policies, some supporting the international medical trade in health ser­v ices, and differences in interpretation of the guidelines that made it difficult for any given authority to act and confused the lines of responsibility. Unintended consequences such as the sudden growth in demand for commercial surrogacy a­ fter the closure of India left regulatory authorities unable to rapidly respond to the new circumstances. The self-­referential system of regulation through professional guidelines proved largely in­effec­tive as it was largely based upon peer review within a medical culture that prefers not to directly criticize its peers. It was based on an unrealistic expectation of the Medical Council of Thailand having the capacity for both sufficient monitoring and enforcement of the regulations. Due to this lack of capacity, t­ here was emphasis upon licensing as the means of regulation rather than continuous monitoring of the activities of clinics or facilitation companies. Fi­nally, the unstable po­liti­cal environment throughout the period ensured ­little oversight by government authorities, a lack of clear advocacy for change, and no action from parliament to finalize the legislation awaiting ratification.

Table C.1

Vari­ous failure mechanisms operating in Thailand ­until 2015 regarding regulation of international surrogacy

Failure mechanism

Example: Thai surrogacy

Consequences

Regulation in ­favor of par­tic­u­lar interests

Power­ful medical professional interests

Reluctance to monitor, report, or enforce regulations by peers

Market-­based interest; high demand for ser­vices State supportive of medical travel industry Lack of strong opposition/ counterinterests Patients’ interest prioritized Information asymmetries—­ confidentiality, secrecy

Generates “industry drift” not following regulatory requirements

Monitoring difficult, lack of mechanism for reporting of foreign surrogacies, lack of accountability

Layering of multiple regulatory regimes

Dif­fer­ent foci for regulatory authority, i.e., Thai Medical Council emphasis on clinic licensing

Inadequate monitoring of clinical activities

Dif­fer­ent interpretations of guidelines

Contradictory policies supporting medical tourism trade but not commercial surrogacy

International medical trade supported by government

Hospitals/clinics differ in regulation of clinical practices

Local guidelines not applicable to foreign surrogates/ ova donors

Unable to protect foreign surrogates

Unintended consequences

Unable to foresee growth of large foreign trade

Rapid response difficult for institutions

Self-­referential system—­based on mutuality and peer review

Medical profession closed from outside scrutiny

Lack of transparency

Institutional capacity

Thai Medical Council limited in capacity to act as regulatory/enforcement body

Role as regulatory body inadequately supported and not backed by legislation

Emphasis on licensing of clinics, not constant monitoring

Monitoring and enforcement requires more resources

Monitoring inadequate

Unstable po­liti­cal environment

Lack of clear advocates for change, uncertain leadership, delayed implementation

Delayed implementation of drafted legislation in parliament

Clinics’ ethics committees not external

Po­liti­cal events disallowed public debate—­eventual introduction by military government

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Prospects for Regulation Elsewhere I have detailed the difficulties involved in implementing the vari­ous policy and ­legal approaches available to a state with regard to the regulation of the cross-­border medical trade, including unilateral and multilateral options for regulation (Whittaker 2010, 2011). Huge hurdles are faced in efforts to ensure ethical practices, provide consumer protections, restrict clinical procedures, regulate medical facilitators, and harmonize legislative differences across jurisdictions. However, it is clear that recent controversies and moves to regulate commercial surrogacy in Thailand, India, Nepal, Cambodia, and the state of Tabasco in Mexico have had interactive effects—­leading to a “policy mood” informing the review and restriction of commercial surrogacy in ­these countries. The vari­ous controversies and negative publicity surrounding surrogacy in Thailand (and, to a lesser extent, India) drew attention to the activities occurring in other jurisdictions and motivated civil organ­izations, including t­hose representing the interests of intended parents and families formed through surrogacy, to raise awareness of the potential for exploitation and harms. Most regulation currently taking place in Asia involves unilateral “hard” regulation—­banning surrogacy through legislation. This has largely stemmed the trade within the relevant countries; however, new business models are constantly emerging that circumvent laws, and it could be argued that ­women, intended parents, and c­ hildren are all made more vulnerable as a result of such legislative moves. With the opening up of ASEAN borders to the movement of persons and trade, it has become virtually impossible to monitor or restrict the movements of ­women as ova donors or surrogates across borders. The passing of legislation has acted as a disincentive but is largely symbolic, and has done l­ittle to monitor or regulate the activities of facilitation companies and clinics.

Multilateral Approaches Multilateral approaches to the regulation of the surrogacy industry could include cooperation between countries to regulate providers and intermediaries and to standardize accreditation, clinical practices, and outcomes reporting (Cortez 2008). ­There have been some successes in brokering multilateral agreements on global health issues, such as international organ transplantation and tobacco control. For example, WHO (2016) has implemented decision EB140 (18) on “princi­ples for global consensus on the donation and management of blood, blood components and medical products of ­human origin,” which has applicability for the protection of ova donors. Likewise, ASEAN could provide an opportunity for the regional harmonization of laws. A variety of models of regulation have been suggested by l­egal scholars. One of the more influential ones has been proposed by Katarina Trimmings and Paul

Conclusion 187

Beaumont (2013), who argue that an “ideal” convention for international surrogacy arrangements would require (1) the development of a system of legally binding standards that should be observed in connection with international surrogacy arrangements, (2) the development of a system of supervision to ensure that ­these standards are observed, and (3) the establishment of a framework of cooperation and channels of communication among the jurisdictions involved. ­These authors propose that such a convention must view surrogacy as a commercial transaction that would provide for the compensation and remuneration of the surrogate ­mother. Nonaccredited bodies would be restricted and payments made in excess of t­ hose stipulated would be prosecuted as constituting child trafficking. Trimmings and Beaumont (2013) also propose that the convention clearly state the right of all surrogate c­ hildren to information on their origins. In response, Bruce Hale (2013) argues that, although some of Trimmings and Beaumont’s suggestions are productive, their proposal for an agreement based upon the Hague Convention on Protection of C ­ hildren and Co-­operation in Re­spect of Intercountry Adoption is inappropriate for surrogacy as the two pro­ cesses are very dif­fer­ent and thus their proposal misconceives the nature of the international surrogacy market. Further, he argues that specific provisions suggested by Trimmings and Beaumont may be in contravention of other rights. Hale claims that attempts to regulate the market are misplaced and that instead any international conventions, regulating surrogacy should serve to resolve conflicts in laws related to parentage, ­family structure, nationality, and immigration. He also argues that issues of undue inducements and exploitation or coercion of surrogates are better addressed by individual nations—­a position that devolves responsibility back upon local (and sometimes inadequate) regulatory cultures. The complexity of the issue is evident in the reports of the Permanent Bureau of the Hague Conference on Private International Law Parenting/Surrogacy Proj­ ect (HCCH 2017, 2018), which is currently studying the feasibility of common ­legal princi­ples in relation to the recognition of parentage for ­children born through international surrogacy arrangements and the need for common channels of communication between states. The Permanent Bureau has eighty members including all EU member states, but has not reached consensus on ­whether a multilateral instrument on surrogacy is appropriate. It is attempting to build cooperation between dif­fer­ent l­ egal systems to develop guidelines on cross-­border issues, while at the same time respecting the dif­fer­ent l­ egal and ethical traditions of member states. Other international bodies have referred to existing international ­human rights instruments in considering their response to international surrogacy. For example, on December 17, 2015, the Eu­ro­pean Parliament (2015) a­ dopted a resolution on ­human rights and democracy in which it calls for EU action to prohibit surrogacy entirely.1 As noted in this book, however, such a ban in Eu­rope w ­ ill only

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create new markets elsewhere or shift them underground, and thereby exacerbate existing vulnerabilities for intended parents, surrogates, and ­children.

Regulation of Demand Other forms of regulation include efforts aimed at putting pressure on the demand side of international surrogacy by discouraging intended parents from traveling overseas, regulating patient travel, regulating referral networks (for example, by licensing brokers or restricting referrals), regulating health insurers, providing oversight through agencies to monitor the movement of patients, and providing codes of practice and guidelines (Cortez 2012). Some of t­ hese are impractical to implement (such as regulating advertising on the internet), and ­legal pre­ce­dents established in each jurisdiction ­will have consequences for what can be achieved. An example of the effects of unilateral legislation intended to restrict overseas demand for ser­vices is seen in Australia. Three Australian states, NSW, Queensland, and the ACT, have legislated to ban residents from being involved in any commercial surrogacy arrangements, including overseas, and have banned other parties from facilitating overseas surrogacy on the grounds of consistency with state laws, which allow only altruistic surrogacy (Australian Capital Territory Parentage Act 2004; New South Wales Surrogacy Act 2010; Queensland Surrogacy Act 2010). However, it is clear that t­ hese laws are difficult to enforce and have been unsuccessful in achieving their aims, except perhaps at a symbolic level. A number of l­ egal cases have now been presented u­ nder this legislation. They have usually come to the attention of the courts via requests for parenting o­ rders. In 2011, two cases (FamCA 502 and FamCA 503) involving Queensland c­ ouples who had pursued surrogacy in Thailand w ­ ere referred to the Office of the Director of Public Prosecutions (DPP) in Queensland to consider w ­ hether ­these ­couples should be prosecuted for entering into a commercial surrogacy arrangement, conviction for which carries a three-­year jail term. However, the DPP has not pursued ­either case. The judge involved also considered referring another two cases for potential extraterritorial prosecution (FamCA 504 FamCA 505), but the relevant provisions ­were not yet in effect at the time the arrangements had been made.2 ­These cases demonstrate the difficulty of enforcing and prosecuting extraterritorial laws and the ­legal quagmire that can result across dif­fer­ent jurisdictions. Although ­these cases ­were not prosecuted, the families involved potentially faced jail terms of up to three years and fines for their actions in conducting a commercial surrogacy arrangement overseas, and a period of l­ egal limbo for their c­ hildren. The unintended consequences of ­these laws may be to reinforce discrimination against certain groups of patients seeking to form families (such as infertile ­couples or gay c­ ouples); force cross-­border commercial surrogacy to go underground or be falsely promoted as altruistic surrogacy; cause parents to avoid seeking paren-

Conclusion 189

tal ­orders for their c­ hildren, thereby depriving c­ hildren of their l­egal status; and potentially turn some parents into criminals. ­These extraterritorial laws also appear to have been in­effec­tive as a deterrent to c­ ouples seeking surrogacy overseas. In an online survey of members of two surrogacy support groups (Everingham, Stafford-­Bell, and Hammarberg 2014), 55 ­percent (63/113) of respondents from Australian states where the laws apply reported that they intended to proceed with their existing plans to undertake overseas surrogacy regardless of the laws, given the low chance of prosecution, while 23 ­percent (26/113) said that they intended to move to a state where the laws did not apply. The intended parents from ­these states with whom I spoke ­were avoiding applying for parenting ­orders for their ­children to avoid ­legal scrutiny of their surrogacy arrangements. Millbank (2011) argues that states’ extraterritorial criminal sanctions and the categorical exclusion of c­ hildren born through paid surrogacy from ­legal parentage regimes in Australian jurisdictions are not adequately justified and in­effec­tive. She suggests that “criminalisation may inhibit constructive discussion about how domestic surrogacy could be expanded or international surrogacy made safer.”

Reform of Local Regimes Another pos­si­ble response is that countries unilaterally reform the regulations governing surrogacy in the home countries of consumers (that is, intended parents) to reduce demand for international arrangements (Parks 2010). In this regard, Millbank (2014) argues that domestic laws in Australia require reform to make it easier for Australian c­ ouples to find surrogates and undertake domestic surrogacy arrangements. She proposes the reform of current bans on advertising or facilitation of any form of surrogacy and of restrictions on who can become a surrogate, which make it extremely difficult for c­ ouples to locate ­women willing to undertake altruistic arrangements if they do not have a preexisting relationship. Millbank suggests the introduction of wage-­or risk-­based compensation within Australia as well as public funding for the assisted reproductive treatment of surrogates to remove incentives for c­ ouples to travel overseas. Th ­ ese proposals have the support of the consumer advocacy group Surrogacy Australia. Such proposals recognize the role of consumer demand in shaping the nature and organ­ization of the industry overseas and the value of attempts to use a “market-­based” approach to reduce that demand. Likewise, as noted in chapter 3, advocacy organ­izations such as Surrogacy Australia emphasize the need for greater education among intended parents so that they can make informed choices about the conditions ­under which they undertake surrogacy arrangements. The intended parents I interviewed and encountered in this study expressed concern about the health and well-­being of surrogates and the ethics of their choices. Although such changes

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would diminish the number of intended parents traveling overseas, cost differences and delays would likely still ensure the travel of some ­couples overseas.

Civil Society Civil society organ­izations, including medical professional associations and patient and health consumer groups, also have impor­tant roles to play in monitoring the effects of cross-­border surrogacy and lobbying governments to implement increased protections for ­those involved. For example, the Eu­ro­pean Society for ­Human Reproduction and Embryology has a Task Force on Cross-­Border Reproductive Care, whose aim is to gather reliable data on the number of patients who cross Eu­ro­pean borders to access ARTs and the reasons why they travel (Shenfield et al. 2011). International umbrella organ­izations for patients, such as International Consumer Support for Infertility (Thorn and Dill 2010), have a useful role to play in the dissemination of information and the repre­sen­ta­tion of patients’ perspectives with the aim of influencing legislation and guidelines on assisted reproduction ser­vices transnationally. Other network organ­izations such as the International Social Ser­vice (ISS) (2016)3—­a network of national entities that assist ­children and families confronted with complex social prob­lems related to migration—­are developing princi­ples for the enhanced protection of ­children’s rights in cross-­border reproductive arrangements. The ISS has produced a set of nonbinding princi­ples that refer to existing international ­human rights instruments and princi­ples of the rights of the child.

Fair Trade Surrogacy One proposal from ethicist Casey Humbryd (2009) is the development of “fair trade surrogacy” to minimize potential harms to all parties and ensure fair compensation to surrogates. This would involve the application of fair trade princi­ ples to address power imbalances and create a producer-­consumer relationship. Such a model lessens the roles of mediators competing in the supply chain. The fair trade model usually involves producers forming cooperatives with worker representatives and man­ag­ers, allowing producers to negotiate for a stronger bargaining position. Other ele­ments of the fair trade model often include sustainable production requirements and safe working conditions, trade standards, producer orga­nizational requirements, and transparency of financial transactions. Sharon Bassan (2016) suggests that fair trade for surrogacy would involve the certification of surrogacy ser­vices to ensure proper medical standards and fundamental rights, the removal of facilitation companies and development of surrogate cooperatives to improve surrogates’ power of negotiation, a minimum price to guarantee a greater income for surrogates, and a social premium included in the price to be used to fund communal proj­ects and long-­term sustainable incomes for sur-

Conclusion 191

rogates and their families. Fi­nally, she suggests that state oversight would be required to ensure transparency in the transactions between intended parents and surrogates and to help limit exploitation and ensure that ­children’s rights are not ­violated. The fair trade surrogacy proposal has been criticized for being both impractical and based upon false parallels between surrogacy and market commodities. Peter Omonzejele (2011) notes that t­ here is no evidence that regulatory frameworks of the type suggested are able to protect vulnerable ­people from exploitation and always require l­egal interpretation, which in turn leads to loopholes. Further, Omonzejele argues that surrogate mothering does not fall within regular market ethos and hence cannot be discussed solely in pecuniary terms. Even if appropriate compensation can be defined, he argues that in situations of poverty and need, compensation would act as an inducement against fully informed consent, and therefore commercial surrogacy would always be exploitative even if mutually beneficial to the parties involved. The fair trade model may be useful, however, for addressing both demand and supply issues and minimizing harms in the surrogacy trade. It would provide an alternative to ­free market forces determining the power of surrogates. It would remove facilitators and brokers to ensure greater contact and require negotiations between intended parents and potential surrogates before a surrogacy arrangement is undertaken. It still would require oversight by government or an in­de­pen­ dent regulatory body if it w ­ ere to succeed. In addition, multilateral agreements on consistency in laws, regulations, parental status, and safety standards would ensure that hybrid models of surrogacy now in operation would be more protective of the rights of parents, surrogates, and c­ hildren. To address the demand for surrogacy, countries could also take greater responsibility for their own citizens’ needs for surrogacy. National self-­sustainability is a model that is pursued for organ donation to reduce demand for the trade in organs (Crozier and Martin 2012). Creating the conditions to encourage ­legal, safe surrogacy within the protection of their home countries would reduce some of the demand for international surrogacy.

Conclusion Throughout this book I describe how international surrogacy draws together subjects from very dif­fer­ent social positions into cir­cuits of exchange between economic value, affective value, and biovalue. The logic of capitalism underpinning the surrogacy industry suggests that such exchanges of bodily potential, affect, and money ­will continue as long as demand persists. The forces working upon surrogates in Southeast Asia are complex and produced by local and transnational economic inequities but also social imperatives to earn money to support their families and secure their ­future. Likewise, the forces producing relatively privileged

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intended parents traveling to Asia for surrogacy ser­vices include the economic disparities between national economies, regional histories of economic subordination, patchwork regulatory regimes that restrict access to other surrogacy options, and a social desire for biological reproduction and parenting. Shaping ­these forces are neoliberal consumer cultures, an informational network economy, and facilitation businesses providing the imaginaries and means to conduct ­these exchanges. From t­ hese complex relationships emerges the surrogacy industry in its pres­ent form. As described in chapter 1, India’s “enterprise culture” infiltrated the private sphere of reproduction and found expression in a model of ­doing surrogacy that disrupted slower, more regulated, higher cost models from the United States and Eu­rope. The accessibility, lower cost, and rapid ser­vice the Indian model provided catered to a w ­ hole new market of p­ eople wanting surrogacy who could not afford the expense or w ­ ere ineligible for surrogacy elsewhere. Following Indian restrictions on gay surrogacy, Nepal and Thailand became the next hubs of the industry. Differences in the regulation of surrogacy across the region have facilitated the industry in the new and emerging markets and allowed the circumvention of local regulations. The organ­ization and practices of the disruptive model of surrogacy draw upon and create differential vulnerabilities for intended parents, surrogates, and ­children. In an essay exploring the po­liti­cal ecol­ogy of nutritional illness and structural vulnerability in Peru, Leatherman (2005, 53) notes how the vulnerability of an individual is produced by his or her location in a hierarchical social order and its diverse networks of power relationships and effects. He describes locally and historically specific conjunctions or “spaces of vulnerability” that “configure a specific set of conditions in which ­people live, and set constraints on how ­these conditions are perceived, how goals are prioritized, what sorts of actions and responses might seem appropriate, and which ones are pos­si­ble.” The disruptive model of surrogacy that developed in Asia is one such locally and historically specific conjunction (or assemblage) that creates vulnerabilities as it constrains decision making, frames choices, and perpetuates inequalities. Just as we should never underestimate the lengths that p­ eople desirous of a ­family ­will go to produce a child, we should also never underestimate the power of poverty to encourage ­women to undertake the risky business of surrogacy. As Levine (1988, 82) writes, impoverishment is a “condition in which persons consider it necessary to assume extraordinary risk or incon­ve­nience in order to secure money or other economic benefits that ­will enable them to purchase what they consider the necessities of life. Their willingness to assume extraordinary burdens is based upon their belief that they are unable to secure sufficient amounts of money by ordinary means.” As seen throughout this book, within this model surrogates find themselves persuaded by cultural and economic inducements, and

Conclusion 193

intended parents are seduced by the promise of efficient, fast surrogacy and ova donations. Through surrogacy, surrogates attempt to make more secure lives for themselves and their families. Once enmeshed within the industry, intended parents are also made vulnerable. Most come to international surrogacy with a lengthy history of medicalization and/or l­egal ineligibility in their home countries. Although they approach the industry as consumers, in real­ity their choices are structured by facilitators and clinics. For many p­ eople, surrogacy arrangements proceed with few difficulties. However, the vulnerability it produces becomes most evident when t­ hings go wrong: for example, when intended parents contract a misleading facilitator, surrogates are trafficked, babies are abandoned or left stateless, or sudden ­legal bans are introduced. The rotten trade that lies beneath international surrogacy is uncommon, but its existence alone risks the dignity and rights of all involved in surrogacy arrangements. A further theme throughout the book is the desire felt by intended parents for biologically related ­children that sustains the trade. The narratives offered by the intended parents in this book framed their surrogacy experiences as quests of pioneers overcoming adversity to experience the joy and love of parenthood. Advocacy groups and cybercommunities have formed around surrogacy to educate and advocate on parents’ behalf. The cultural imperative for biologically related ­children has become a power­ful motive encouraging the international surrogacy industry. Damien Riggs and Clemence Due (2017) envisage a response that replaces the perception of surrogacy as a solution to a prob­lem (that is, the lack of biologically related c­ hildren) with an alternate discourse that locates the ethics of surrogacy arrangements within a broader global context and “which may potentially involve not engaging with the surrogacy industry.” Their call to forgo the potential for a ­family through surrogacy is a difficult request of intended parents. But it can also be read as a call for surrogacy arrangements to be more locally accountable, built upon relationships and equitable exchanges, not cap­it­ al­ist relations. In this book, I have also examined in detail the importance of facilitators within the surrogacy assemblage in Asia. From small, single-­person companies to multinational ventures, facilitation companies have been generally ignored in the academic lit­er­a­ture, yet they mediate the exchanges between parents, clinics, and surrogates. Facilitation companies are usually un­regu­la­ted and unaccountable, and the organ­ization of their business usually makes it impossible to seek redress; yet they promote themselves in terms of care and ser­vice rather than profit making. I have drawn attention to the range of digital technologies that connect the parents, facilitators, clinics, and surrogates. Without digital technologies, the international surrogacy industry could not have developed. A final theme of this book is the rotten trade revealed in the region involving trafficking, fraud, and criminality. The vari­ous cases of such abuses in Thailand

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and the region highlight the lack of protections for surrogates, c­ hildren, and intended parents within the industry. They also reveal how ­legal bans fail to stop such abuses, merely serving to relocate them. International surrogacy forms one part of an expanding global bioeconomy exchanging body parts, blood, gametes, cell lines, and embryos to generate profit. Like other forms of post-­Fordist industry, it depends upon the mobilization and exploitation of bodily capital to produce other forms of value (Cooper and Waldby 2014). In Asia, the terms of trade of t­ hese exchanges remain unequitable, reflecting global and regional economic differentials, and t­ here are few means to protect t­ hose most vulnerable in ­these exchanges. The industry continues to develop ever more flexible incarnations in response to changing ­legal conditions and regulations. With growing demands for surrogacy in China, the market is unlikely to cease. To build a more just and equitable f­ uture for international surrogacy, we need to understand how the model of disruptive surrogacy introduced in Asia produces exploitative practices not subject to oversight or regulation. It generates vulnerabilities for parents, surrogates, and families enmeshed within it. Rather than ban international surrogacy, we need to pursue the far more difficult alternative, to attempt to find a way in which to conduct surrogacy in a fair, equitable, and just manner—­one that recognizes and re­spects the profoundly ­human relationships involved. As this book shows, the question of who is accountable in surrogacy is a complex one. Reproduction is not just a mere exchange between bodies, but a complex social relationship. It is pos­si­ble to criticize the system in which surrogacy takes place while having empathy for surrogates and intended parents seeking to form families. Only by understanding the perspectives of the vari­ous p­ eople involved in surrogacy and how the industry operates can we fashion policies to address abuses and create the conditions for equitable, accountable, safe, and positive exchanges. We owe it to the next generation of ­children to do so.

ACKNOWL­E DGMENTS

A number of p­ eople contributed to this book. Foremost I wish to thank the anonymous intended parents, facilitators, surrogates, and clinic staff who facilitated and participated in this study. I wish to thank Steve Everingham of Families through Surrogacy for his support, and the volunteer staff of Surrogacy Australia. I also wish to thank Professor Sarah Franklin for invitations to Cambridge and the staff at ReproSoc in the Department of Sociology, University of Cambridge, for their support for my stimulating winter stay as a Visiting Fellow when I started the writing of this work. I also wish to thank Clare Hall, Cambridge University for a Visiting Fellowship during my stay. This work has also benefited from numerous conferences and conversations. I thank Professor Marcia Inhorn for her constant inspiration on the anthropology of reproduction and several invitations to wonderful workshops with a network of international colleagues too numerous to list ­here. I look forward to continuing to work together. I also wish to thank Dr. Virginie Rozée of Institut National d’Etudes Démographiques (INED) Sorbonne for two invitations to attend workshops in India and France at which the complexities of surrogacy w ­ ere further teased out, and Dr. Francoise Shenfield, University College London, for her support and conversations that always pique my ideas. Dr. Parisa Rungruang and Donhathai Sutassanamarlee assisted with some of the Thai translations in this book, and Julia Farrell assisted with copyediting the manuscript. Fi­nally, I wish to thank my colleagues at the School of Social Sciences, Monash University, especially t­ hose within the Anthropology Program, for providing me with such a supportive and exciting environment, and my colleagues in the Health and Biofutures Focus Program, Monash University, Professor Alan Petersen, Associate Professor Mark Davis, and Associate Professor Catherine Mills, for their continued interest and support. Some content of this book has been previously published in shorter forms, and I thank the publishers for permission to reproduce parts ­here. Specifically, a shorter version of chapter 2 was published in Andrea Whittaker, “Merit and Money: The Situated Ethics of Transnational Commercial Surrogacy in Thailand,” IJFAB: International Journal of Feminist Approaches to Bioethics 7, no. 2 (2014): 100–120. Sections of the history of surrogacy have previously appeared in Andrea Whittaker, “From ‘Mung Ming’ to ‘Baby Gammy’: A Local History of Assisted Reproduction in Thailand,” Reproductive Biomedicine & Society Online (2016), http://­dx​.d­ oi​.o­ rg​ /­10​.1­ 016​/­j.​ ­rbms​.­2016​.­05​.­005. Parts of the conclusion draw upon Andrea Whittaker, “Cross-­Border Assisted Reproductive Care in Asia: Implications for Access, Equity and Regulations,” Reproductive Health ­Matters 19, no 37 (2011): 107–116. I 195

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Acknowl­edgments

also wish to thank FlinnWorks for the permission to use the cover image © Flinn Works e.V. /. The images ­were created for the per­for­mance “Global Belly–­A Per­ for­mance About Transnational Surrogacy” in 2017 (photography and design: Alexander Barta, www​.­flinnworks​.­de​.­). Ethical clearance to conduct the proj­ect was received from the Monash University ­Human Research Ethics Committee (HREC, CF13/3158–2013001666). All the names of in­for­mants and participating clinics remain anonymous, and pseudonyms are used throughout this book ­unless stated other­wise. The research was funded by the Australian government through an Australian Research Council ­Future Fellowship. I wish to thank Professor Lenore Manderson for her mentoring and editorial support for the publication of this manuscript. Fi­nally, I wish to thank my ­family—my husband and colleague Dr. Bruce Missingham and our ­daughters, Claire and Rachel—­for their constant comfort and inspiration.

NOTES

Introduction 1. ​Unknown to the doctor involved, the first surrogate arrangement was commercial, the sur-

rogate reportedly being paid US$32,000 for the procedure. However, the c­ ouple represented the surrogate as a ­family friend undergoing the procedure for altruistic motivations ( Johnson 1987).

Chapter 1  The Growth of Disruptive Commercial Surrogacy in Asia 1. ​Such introductions linking surrogacy with the Vedic past ­were repeated in other speeches I

attended by Indian IVF specialists. In his work on Indian stem cell research, Aditya Bharadwaj notes similar rhetorical strategies as part of Indian “sacred modernity” (Bharadwaj 2006).

Chapter 2  Merit and Money 1. ​My comments ­here refer to the nature of both industries as dependent upon intimate

affective ­labor, not to suggest t­ here are any connections or similarities between sex work and surrogacy. ­There is often a presumed link between surrogacy and the sex trade in Thailand, but upon closer examination glib comparisons merely replicate offensive ste­reo­types of Thai w ­ omen. Both industries involve body work, but while sex work involves the exchange of sexual intercourse for money, the IVF technologies ensure gestational surrogacy does not. It would be highly offensive to surrogates, intended parents, and clinics to argue that the two forms of work are similar. Rather, I refer to the sex industry h­ ere as yet another example of an industry, like migratory domestic ­labor and marriage migration, that is heavi­ly gendered and draws upon the re/productive capacities of w ­ omen’s bodies. Like ­these other forms of gendered work, ­women within t­ hese realms of employment are vulnerable to poor working conditions and in some extreme cases trafficking (as ­w ill be described in chapter 6).

Chapter 3  The Best of Intentions 1. ​Jim and his partner eventually did become ­fathers of a ­daughter but during that pregnancy

­ ere also caught up in the closures of clinics in Thailand, during which time they lost contact w with their surrogate. At the time of the interview they ­were trying again in Nepal for a second child with embryos that they had transferred ­there following the closure of the clinic in Thailand. 2. ​Ovarian hyperstimulation syndrome (OHSS) is a potentially life-­threatening complication leading to ovarian enlargement and excessive fluid caused by the effects of ­human chorionic gonadotropin (hCG), which is used for inducing final oocyte maturation or triggering oocyte release.

197

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Notes

Chapter 4  Facilitation 1. ​This claim is repeated on a doubtless inaccurate Wikipedia site. The assertion that he was

the first facilitator to arrange surrogacy in India in 2008 is highly unlikely given that commercial surrogacy was made ­legal in 2002 and an established industry was well u­ nder way by 2008. 2. ​An escrow account is a ­legal term for a bond or money that is placed in the custody of a third party ­until a specified condition has been fulfilled.

Chapter 5  Digital Umbilical Cords 1. ​Intracytoplasmic sperm injection (ICSI) involves the micromanipulation of a single sperm

cell that is injected directly into an egg.

Chapter 6  Rotten Trade 1. ​The com­pany is also known by the names Babe 101 and Baby 1001, searches for which all

direct to the same website. 2. ​The Babe 101 website presented the following poorly translated list of reasons for using a surrogate: • Choosing a health and young ­woman, provide the baby a superior environment before birth. • Female of consignor can get rid of any incon­ve­nient and uncomfortable situation. • The consignor can continue to work without worrying about losing job or business intermission. It is quite suitable for the ­women who desire to have kids but no time for pregnancy. • Unnecessary to fear the pain of birth pangs. • Unnecessary to worry about out of shape on your stature, neither to fear the intimacy fading. • Embryo selecting can pick up the best quality one to implant into young and health surrogate ­mother. The finest combination surely make you be more confident to your child. • Although getting rid of birth pangs, out of shape, no intermission on business or job. However the baby is 100% blood relationship with you. • ­Under extremely strict control and selecting in all pro­cess, it is much higher possibility to have outstanding than o­ thers. • No descend(ant)s is somewhat a regret for one’s f­ amily, for this, you can successfully carry on. • “Wiping away the sorrow, it is ­needless to take the risk for adoption, we can grant you a splendid life especially when you embrace your blood relationship baby.” 3. ​The Tao Mahaphrom or Erawan shrine (ศาลพระพรหม) at the G ­ rand Hyatt Erawan H ­ otel at the Ratprasong intersection in Bangkok is famous as a tourist attraction but also as an impor­tant site of pilgrimage for Thais. The shrine contains an image of Phra Phrom (Brahma), a Hindu deity associated with acts of creation, and is a prominent site for ­those asking for c­ hildren (Whittaker 2015). On August 7, 2015, a bombing took place at the shrine, in which twenty p­ eople died.

Chapter 7  Baby Gammy 1. ​One example can be found on the Mamamia website (Mamamia Team 2014) in response

to the transcript of the interview, where “Sam” tweeted a long response accusing David Farnell of trying to portray himself as a victim and “grooming” the public into believing his vulnera-

Notes 199 bility: “On its own this fiasco already makes them appalling ­people. Add to that his paedophile past and you have yourself the most repulsive man and useless enabling wife deserving of all the judgement they have brought upon themselves—we ­won’t be groomed the way ­others have been. How dare he sit ­there playing victim to the poverty stricken surrogate ­mother they used who desperate for money bears c­ hildren for p­ eople she d­ oesn’t know. Then blame her for them having no choice but to leave without their son!” 2. ​See http://­www​.­australia​.­gov​.­au​/­about​-­australia​/­our​-­country​/­our​-­people​/­apology​-­to​ -­australias​-i­ ndigenous​-­peoples for details of the apology given on February 13, 2008. 3. ​An Australian Senate Inquiry Report into forced adoption practices found that babies ­were taken illegally a­ fter birth by officials, sometimes with the assistance of adoption agencies or other authorities, and ­adopted out to married ­couples. This practice occurred from the late 1940s ­until the 1980s. No accurate figures on the number of adoptions are known, although ­there are estimates of as many as 250,000. Some ­mothers ­were coerced and drugged and illegally had their consent taken. Rec­ords of t­ hese forced adoptions ­were closed. Groups such as the Adoption Alliance and ­Mothers for Justice lobbied for an apology and continue to speak out on related issues. Australian Prime Minister Julia Gillard offered a national apology to ­those affected by forced adoptions in 2013 (Cuthbert and Quartly 2012). 4. ​­Under the child migration scheme, Home ­Children, more than 100,000 ­children ­were sent from the United Kingdom to Australia, Canada, New Zealand, and South Africa. Australia apologized for its involvement in the scheme in February 2010, and UK Prime Minister Gordon Brown made a formal apology to the families of ­children who suffered. 5. ​This was brought to my attention at a drama event for a new play on surrogacy held in Melbourne. At a chaired discussion panel a­fter the event, advocates for forced adoptees verbally attacked members of the panel, which included a doctor and a ­woman who had recently been a surrogate for a c­ ouple. Likening the handing over of a child by a surrogate to the forced relinquishing of a child, ­these advocates accused the panel members of yet again denying ­children their (birth) ­mothers and causing ­future psychological harm to both the ­children and surrogates involved. One ­woman stated, “In the ­future we ­will need another public apology for t­ hese c­ hildren.” 6. ​A range of ­human rights concerns w ­ ere raised about the activities of the NCPO government (US Department of State 2015). The ­matters of concern have included a ban on po­liti­cal gatherings of more than five p­ eople; the detention, arrest, and charging with sedition of a range of ­people who protested against the coup or have been deemed anti-­coup; censorship of new and old media, films, and written material deemed provocative or offensive; and the charging of a number of ­people deemed to have offended the monarchy with lèsemajesté offenses. 7. ​As cited by the National News Bureau of Thailand (Thamdee 2014), the twelve Thai values of the junta are the following:  1. Love for the nation, religions, and monarchy  2. Honesty, patience, and good intentions for the public  3. Gratitude to parents, guardians, and teachers  4. Perseverance in learning  5. Conservation of Thai culture  6. Morality and sharing with o ­ thers  7. Correct understanding of democracy with the monarch as head of the state  8. Discipline and re­spect for the law and elders  9. Awareness in thinking and d ­ oing ­things, and following the guidance of His Majesty the King 10. Living by the sufficiency economy philosophy guided by His Majesty the King 11. Physical and ­mental strength against greed 12. Concern about the public and national good more than self-­interest.

200

Notes

8. ​The agent was from a com­pany called IVF Sunrise that was registered with partners in Belize

and the Seychelles. It advertised addresses in London and Bangkok but moved to Nepal a­ fter the Thai ban. This com­pany now advertises its IVF ser­vices in Rus­sia. 9. ​A few years earlier, at a conference dinner I attended, one doctor noted the divisions between red shirt and yellow shirt medicos, and p­ eople speak of red shirt and yellow shirt hospitals in the north of Thailand.

Chapter 8  New Destinations, New Markets 1. ​The fatwa states that a third-­party donor is not allowed, w ­ hether to provide sperm, eggs,

embryos, or a uterus, and that the use of a third party is tantamount to zina or adultery.

Conclusion 1. ​The resolution by the Eu­ro­pean Parliament (2015) states that it “condemns the practice of

surrogacy, which undermines the h­ uman dignity of the w ­ oman since her body and its reproductive functions are used as a commodity; considers that the practice of gestational surrogacy which involves reproductive exploitation and use of the ­human body for financial or other gain, in par­tic­u­lar in the case of vulnerable ­women in developing countries, ­shall be prohibited and treated as a m ­ atter of urgency in ­human rights instruments.” Such a statement has yet to be transformed into action but does indicate the possibility of multilateral agreements. As seen in this book, such outright bans force surrogacy underground, encourage hybrid arrangements that offer ­little protections, and, in this case, encourage more Eu­ro­pe­ans to pursue surrogacy elsewhere, for example, in bordering Ukraine, which has liberal policies with regard to surrogacy. 2. ​Dudley and Anor and Chedi (2011) in the F ­ amily Court of Australia (Fam CA 502, June 30, 2011) involved a ­couple who are residents of Queensland who went to Thailand for overseas surrogacy. Both aged forty-­two, the c­ ouple had tried IVF in Australia for ten years before seeking surrogacy overseas. They hired two surrogate m ­ others, one of whom had twin boys and the other one a boy from donated eggs and the sperm of the ­father. The ­couple sought parental ­orders for the three boys in the F ­ amily Court in Sydney. In two separate cases by two judges, the parents w ­ ere granted parental o­ rders for the boys as it was judged to be in the c­ hildren’s best interests. However, one judge ordered that the case be referred to the Queensland DPP to consider ­whether the c­ ouple should be prosecuted for entering into a commercial surrogacy arrangement, which carries a three-­year jail term. The DPP has not pursued the case. Another Queensland case involved a c­ ouple who had under­gone surrogacy in Thailand and sought parenting ­orders for the child (Findlay and Anor and Punyawong, 2011, FamCA 503), which was also referred to the Queensland DPP. In another case ( Johnson and Anor and Chompunut, 2011, FamCA 505), an Australian ­father seeking a parenting order for a child born in Thailand to an unwed Thai surrogate was denied status as a parent by the Australian ­Family Court b­ ecause Thai law does not recognize the ­father of a child of an unwed Thai ­mother. Parents would be required to produce a court order relinquishing the m ­ other’s rights as a parent, which u­ nder Thai law is not pos­si­ble for an unwed m ­ other ­until the child has reached seven or eight years of age. As a consequence, the child in this case was not considered eligible for a visa on the basis of descent ­until such a court order had been produced. 3. ​The ISS is an international NGO founded in 1924, comprising a network of national entities and a general secretariat that assist ­children and families confronted with complex social prob­lems as a result of migration.

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INDEX

Page numbers in italics refer to illustrations abandoned children, 25–26, 141, 147–148, 152, 193. See also “Baby Gammy” advertising. See marketing advocacy, 20, 89, 93–96, 98, 116, 120, 129, 190 affective value. See value agency: of intended parents, 88–89, 98, 124; of surrogates, xiv, 50, 55–57, 134, 137, 152 Akanksha clinic, 34 Alliance Anti Trafic (AAT), 135, 137 All IVF Clinic, 138, 143, 174 altruistic surrogacy, 21; in Australia, 42; vs. commercial surrogacy, 21, 28, 61, 82 anonymity, 36, 65, 73; breaches by clinic, 76; for donor conceived children, 155 Appadurai, Arjun, 8 Asian stereotypes, 110, 118, 135–136; Japanese, 139–140; women, 154 assemblage, 114–115; definition, 9–10; of people and companies in surrogacy, 100 assemblage ethnography, 22 assisted reproduction. See IVF (in vitro fertilization) Australia, 12; citizenship, 19; demand for surrogacy, 41; relationship with Thailand / Asia, 41–42, 145, 154–155; surrogacy legislation, 42, 74 “Baby Carmen” case, 141–142 “Baby factory” case, 138–141 “Baby Gammy,” 25–26, 147–166; custody case, 157–158; legal reaction, 15; media interview, 149; as patriotic, 151; public appeal, 150 Baby 101, 133–138; prosecution, 136–137; website, 136, 198n2 (chap. 6) Bans: on clinics, 26, 86, 147, 159–160; effects on intended parents, 160–161; timeline across Asia, 171 Berend, Zsuzsa, 121 bioavailability, 52, 53 bioeconomy, 11 biosociality, 98, 119–122 biovalue, 11, 15

birth, 71, 79, 83 blogs, 46, 111, 118 blood, 62 borders, 18. See also law Boris, Eileen and Parrenas, Rhacel Salazar, 51, 52. See also intimate labor brokers. See facilitators Buddhism, 24, 37, 118; Buddhist merit, 51, 55–56, 57–60, 151 bunkhun, 59–60 California, 29 Cambodia, 142–145, 172–173, 177 Canada, 176 child abuse. See pedophilia children: stranded, 141–142; value of, 13 China: citizenship, 169; demand for surrogacy, 170; surrogacy in, 167–170 circumvention travel, 7, 18 citizenship, 19–20, 135; of children, 141–142; juridical status, 19; procedures, 84–85; “reproductive citizenship,” 19–20 clinical labor, 11, 51–52; definition, 51; and moral economies, 12 clinics, networks of, 105. See also facilitation companies commercial surrogacy. See altruistic surrogacy commodification, 13, 30, 43–44 communication, 127–128; with clinics, 76, 125–126; with surrogates, 76, 83 compensated surrogacy, 156, 189 contracts, 29, 30, 31, 33, 34, 36, 54, 70, 73, 77; as “cleaner” relationship, 89; in English, 142; and race, 46. See also law Cooper, Melinda and Waldby, Catherine, 11, 12, 51 costs: of body parts, 43; in India, 35; in Thailand, 43, 72, 80, 89, 104, 105; in UK, 29 counseling, 29, 33, 70, 94, 108 cybercommunity, 95, 114, 119, 120–121; cyberpublic, 129; divisions among, 122

221

222

Index

Davis-Charles, Tammy, 142–145 digital technologies, 25, 116–130; for communication, 84; mediating pregnancy, 123 “digital umbilical cords,” 116–130 disability, 149, 161. See also “Baby Gammy” disclosure, of surrogacy, 78, 87 disruptive innovation, 2, 28 “disruptive” surrogacy: definitions of, 1, 2, 11, 27, 33; history of development, 32–33, 47; regulation, 182–183; Thailand, 43–44 donor eggs. See egg donor; oocyte donation Down Syndrome. See “Baby Gammy”

Families Through Surrogacy (FTS), 94–95, 98 family, 20, 51; disapproval, 81. See also social support Family Court of Western Australia, 157–158 Farnell, David, 148, 157. See also “Baby Gammy” fertility of subalterns, 15 fetal reductions, 93, 94 forced separations, 154–155, 199n3–5 Fordism, 10 Franklin, Sarah, 11 fraud, 90, 92–93, 113–114; gossip about, 122

economic value. See value egg donor, 70; invisibility of, 132–133 electronic couvade, 123 embassy: procedures, 71, 107, 142–143; relationships with facilitators, 108 embodied capitalism, 23 emotions, 79 Erawan shrine, 198n1 (chap. 6) “ethical” surrogacy, 45 ethics, 4, 50; of research, 22; situated, 50; in Thailand, 37, 45, 161–162 eugenics, 135–136 European Parliament, 187, 200n1 (chap. Conclusion) European Society for Human Reproduction and Embryology (ESHRE), 190 exploitation, 4, 5, 30, 52, 131–134; of children, 152–154 extraterritorial laws, 156, 188–189, 200n2

gay couples: case studies, 69–82, 167–170; and marriage equality, 20; normative parenting, 78; and race privilege, 46; and restrictive legislation, 18, 20. See also “Baby Carmen” case Gay Dads Australia, 20, 94 gaybies, 20 genetics vs. nuture, 62 gestational carrier, 21. See also surrogates gestational surrogacy: countries permitting, 3; definition of, 3; history of, 3, 197n1 (chap. Introduction). See also surrogacy Ghana, 171 gift-giving, 54, 66, 85; by intended parents, 72 globalization, 8, 181 gossip, 122

Facebook. See digital technologies facilitation companies: mobility of, 26; models of, 25, 99, 103–106; organization of, 102–103 facilitators, 25, 100–102, 107–115; as choice architects, 101; expert claims by, 108–109; fraud, 113–114; legal sleights of hand, 108, 157; local knowledge, 112; in medical travel, 100–101; personal experiences, 108–110, 144, 177; prosecution of, 142–145; relationship with intended parents, 145; roles of, 102; terminology, 21. See also Davis-Charles, Tammy failure, 85–86, 91–93 fair trade surrogacy, 26, 190–191

Hague Conference on Private International Law Parenting/Surrogacy Project, 187 heteronormativity, 161 Hinduism, 34, 55, 197n1 (chap. 1) hospital arrangements, 73, 79, 84 Hudson, Nicky, 6 Human Fertilisation and Embryology [HFE] Act, 28–29 “hybrid” surrogacy, 169, 175–178 “incomplete commodification,” 31 India, 5, 13, 32–36, 69; citizenship in, 19; legislation, 40–41; vs. Thailand, 45 “industrial revolution 4.0,” 1–2 infertility, 14, 129, 170 Inhorn, Marcia, 7, 8 intended parent: differences between, 97; ethics, 75; identity, 72–73; legal issues, 74,

88; narratives, 87–88; relationship with facilitator, 112–113; representations of, 155; terminology, 21, 24, 67–90; vulnerabilities, 97–98 International Social Service (ISS), 190, 200n3 internet, 44–45, 95–96, 117–118, 120–121; stereotypes, 110; surrogate finder sites, 57 INTERPOL, 138 intimate labor, 13, 51–52 intracytoplasmic sperm injection (ICSI), 198n1 (chap. 5) Israel, 12, 30–31; laws, 30; stranded babies, 141–142 IVF (in vitro fertilization), 3, 9, 30, 41, 44, 123; clinic quality, 110; cross-border, 7; facilitators experiences, 109; history in Thailand, 36; intended parents experiences, 82, 86, 91; laboratory requirements, 176; national pride, 166; naturalization of, 14, 20, 165; risks, 92 Jackson, Peter, 163–164 Janbua, Pattharamon (Goy), 148, 151–152, 157 Karma. See Buddhism Kenya, 171 kinning, 63–64, 80–81, 88, 127–128; definition, 63 kinship, 55, 60, 61–62; Thai, 64. See also kinning Kroløkke, Charlotte, 22, 54 labor, bodily, 5, 11, 13. See also clinical labor; intimate labor Laos, 173–174, 177; story of Aelan, 56 law: extraterritorial laws, 19, 200n2; legal advice, 77, 88, 107; and space, 18; and surrogates, 29; uncertainties, 90, 160–161. See also legislation legislation, 18, 181, 186; Australian, 42, 188; Cambodian, 172; harmonization of, 186; Indian, 32, 40; Thai, 37–39, 140, 147, 159–163, 165; Vietnam, 174. See also law LGBTIQ, 20, 98, 120. See also gay couples; rainbow families Malaysia, 174–175, 200n1 (chap. 8) malpractice, 93 Markens, Susan, 5

Index 223 marketing, 110–111, 117–118, 120; by facilitation companies, 43, 44; stereotyping in, 46, 118 marriage equality, 20 Medical Council of Thailand, 23, 37, 181, 184 medical profession. See Thailand medical tourism. See medical travel medical travel, 6, 40, 53, 163; impacts of, 41; size of market in Thailand, 40–41 merit. See Buddhism methods, 22 Mexico, 171 Millbank, Jenni, 156, 189 miscarriage, 91–92, 126 mobility: of companies, 26, 171; of surrogates, 175–176 monitoring: of industry, 7, 26, 139, 145, 182–185, 190; of pregnancy, 14, 30, 32, 35, 63, 116 moral economies, 12, 24, 37, 50–51 motherhood: surrogate as mother, 82, 151; in Thailand, 39 motivations, of surrogates, 30, 35, 55–59, 139, 151 Nahman, Michal, 11, 133 National Council for Peace and order (NCPO), 159, 199n6 Nepal, 40 occidentalism, 50 Ong, Aihwa, 9, 50 oocyte donation: anonymity of, 75; phenotype, 21; popular destinations, 7; as reason for travel, 7, 18; regulations affecting availability, 18. See also egg donor outsourcing, 11 Ovarian hyperstimulation syndrome (OHSS), 93, 197n2 package deals, 85 Pande, Amrita, 5, 13, 54 “parachute children,” 170, 178 parallel pregnancies. See pregnancy parentage, 14, 19, 38, 85, 163, 175, 187–189; in Thailand, 38 payments, 106, 143. See also costs pedophilia, 152–154, 199n1 PGD/S (pre-implantation genetic diagnosis/ screening), 70, 123, 173

224

Index

post-Fordism, 10–11; mobilization of bodies in, 10, 13–14 post-partum, 49, 84 pregnancy, 124–127; care, 63; parallel, 75, 92, 94; reactions to successful test, 83; risks of multiples, 34. See also electronic couvade privatization, 41 Protection of Children Born Through Assisted Reproductive Technologies Act, 161 race, 13, 17, 46–47, 52, 139–140, 151 Ragoné, Heléna, 13, 54 rainbow families, 20 recruitment, 106–107; clinic distance, 103–104; of intended parents, 111, 116; “spotters,” 111; of surrogates, 50, 53, 70, 152 regulation, 12, 17–18, 26, 181–182; and civil society, 190; command and control, 181; of demand, 188–190; interactive effects, 186; legislation, 39; multilateral approaches, 186–188; in Thailand, 37–38. See law regulatory failure, 145, 182–185 relationships: between other intended parents, 96; between surrogate and intended parents, 5, 30, 31–32, 49, 59–62, 63–64, 75–76, 84–85, 87, 89, 127–128; emotions, 79, 84; ethics of, 79; first meeting, 71–72 religion, beliefs about surrogacy, 55–61. See also Buddhism; Hinduism “rental mother,” 21 rentier capitalism, 11, 52 representations of surrogacy. See surrogates reproductive exiles, 7 reproductive justice, 50 reproductive loss. See miscarriage reproductive travel, 6; statistics, 6–7 reproductivity, 19–20; and national identity, 39 “reprohubs” 7, 170–175, 171. See also Cambodia; India; Nepal; Thailand; United States “reproscapes,” 8–9 Riggs, Damien and Due, Clemance, 22, 46, 193, 194 Rose, Nikolas, 119, 121 rotten trade, 25; definitions of, 18, 25, 131 Rudrappa, Sharmila, 21, 32, 35, 56

scans, 76, 123–127 self-regulation, 181, 184 serial surrogacy. See “Baby factory” case sex industry, 53, 197n1 (chap. 2) sex selection, 70 Shigeta, Mitsutoki, 138–141 siblings, 75 single embryo transfer (SET), 30, 34, 94 social support, 119, 165; divisions within support groups, 96; lack of, 81, 93. See also Surrogacy Australia “stolen generation,” 155, 199n2 stratification, 8, 15, 52 support groups. See social support; Surrogacy Australia surrogacy: anthropological studies of, 4–6; definition of, 2–3; feminist approaches to, 4; FIFO (fly in fly out), 175–176; as industry, 27; as intimate labor, 52; mobility, 8; models of, 12, 28–32; as project management, 90; reasons for, 3; and western cultures, 39. See also Cambodia; clinical labor; Israel; Nepal; Thailand; United Kingdom; United States Surrogacy Australia, 41, 74, 93–97, 156, 189 surrogates: backgrounds, 35, 55–56, 139; bonding with child, 158; desired characteristics, 85; experiences, 48–49; housing, 34; invisibility of, 124–126; maeumbun, 21; as recruiters, 151; representations of, 65, 151; selection of, 70, 75; socialization of, 35, 54–55; as subcontractors, 11; terminology, 21; trafficking of, 133–138. See also motivations Taiwan, 177. See also Baby 101 Teman, Elly, 5, 28, 30–31, 54 Thailand: capitalist development, 53; and China, 154; citizenship, 19; disruptive model in, 43; first gestational surrogacy, 36; first IVF baby, 36; history of surrogacy, 36–39; vs. India, 45; and Japan, 139–140; legislation, 158–160, 165; medical profession, 161–162, 165–166, 183; and national identity, 39, 162–164; politics, 158–159; public image, 163–164; social attitudes, 39; stereotypes, 118; terminology, 37, 127–128. See also Buddhism; Thai values

Thai military coup, 77, 149, 158–159; effects on intended parents, 77; human rights concerns, 199n6; public image, 163–164 Thai values, 159, 161, 166, 199n7 trafficking, 108, 133–138; definition of, 134; prosecution, 136–137 transfer of baby, 79 transvaluation, 13–16 Turkey, 19 twins. See pregnancy, risks of multiples Umbun, 21, 37, 58–59. See also Buddhism United Kingdom, 12, 28, 31

Index 225 United States, 12, 29–30; citizenship, 19; number of IVF cycles, 30 value: affective value, 16; biovalue, 15; economic value, 17; exchange circuits of, 6, 11, 13–16 Vora, Kalindi, 13, 55 vulnerabilities, 2, 192 websites. See internet whiteness, 151 Zelizer, Viviana, 12–13

ABOUT THE AUTHOR

Andrea Whittaker is Australian Research Council ­Future Fellow and Profes-

sor and Convenor of Anthropology at the School of Social Sciences, Monash University, Melbourne, Australia. As a medical anthropologist, she specializes in the fields of reproductive health and biotechnologies with a special interest on Thailand and Southeast Asia and leads the Health and Biofutures Focus Program within the Faculty of Arts. She received her PhD from the University of Queensland in 1995. Her major publications include Intimate Knowledge: W ­ omen and Their Health in Northeast Thailand (2000), ­Women’s Health in Mainland South-­East Asia (ed., 2002), Abortion, Sin and the State in Thailand (2004), Abortion in Asia: Local Dilemmas, Global Politics (ed., 2010), and Thai in Vitro: Gender, Culture and Assisted Reproduction (2015).