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Baby Gammy, Surrogacy and Safeguards


Baby Gammy and his twin sister were born to a Thai surrogate at the behest of an Australian couple in January, but according to some accounts, he was abandoned by his biological parents due to his Down’s syndrome diagnosis. What is clear is that the couple has returned home to Australia with his healthy sister in tow. It has since been revealed that the biological father is a convicted sex offender and that the surrogate, currently caring for Gammy, faces the prospect of arrest under Thai law for engaging in commercial surrogacy.

The unresolved story of baby Gammy is another call for consideration of the dynamics of surrogacy relationships across national borders. Since many nations strictly limit or prohibit surrogacy, their citizens drive demand in the world’s less regulated surrogacy markets. To that end, all nations must consider their role and responsibility in regulating the behavior of their citizens entering these markets.

The lack of regulatory and legal consistency necessary to prevent cases such as Baby Gammy’s is not, however, exclusive to developing countries. In fact, U.S. regulation of commercial surrogacy exhibits similar inconsistencies on a state by state basis – from flat prohibitions to loosely regulated markets. This patchwork of laws encourages a “race to the bottom” mentality that allows those who don’t like one set of laws to pick up and move to locations with laws that they prefer, both within the United States and in international markets.

In contrast, the sophisticated (but largely unregulated) high-end commercial surrogacy model developed in the aftermath of the Baby M controversy in the US requires vetting of potential parents and surrogates alike. The process includes entering into legally binding contracts that consider most eventualities. Processes like these make cases like Baby Gammy’s less likely to occur. One can conclude, given the very real damage and confusion these conflicts can produce for families, biological and otherwise, that the U.S. and international bodies may be wise to begin to consider logical, consistent standards to reduce forum shopping in surrogacy markets. Hopefully, the US legal patchwork can help identify what systems will work best, and the limitations of any one nation’s regulatory scheme, at an international level.