A male same-sex couple have been stuck in Thailand with their baby daughter for the past six months, after the surrogate mother refused to allow them to leave the country claiming they are not 'an ordinary couple'.
'[The surrogate] said she thought she was doing this for an "ordinary family" and when she found out that it wasn't an ordinary family she was worried for [the child's] wellbeing', Gordon Lake, a US citizen and the child's biological father, told The Guardian.
The surrogate mother, Patidta Kusolsang, had signed papers allowing Lake and his Spanish husband, Manuel Santos, to take baby Carmen from hospital in January, but later refused to sign the documents to allow the child to get a passport and asked for her back.
'I was flabbergasted, in a complete state of shock. It's your worst nightmare in a process like this. I didn't believe it... We sent messages back. Hoping there was some sort of miscommunication,' Lake added.
The surrogate's lawyer, Verutai Maneenuchanert, said the mother only found out the men were gay after the child's birth. Kusolsang also appeared on Thai TV in March to say she had wanted to help a 'legitimate married couple' and did not understand the surrogacy contract because it was in English. Yet Kusolsang denied that the couple's sexual orientation was the issue.
Mariam Kukunashvili, co-founder of the agency used by the couple, New Life, told The Guardian that 'New Life is trying to help in any way possible' and insists that 'the surrogate knew they were gay parents from the beginning of the process... and that the contract was bilingual'.
The fathers, who also have a 23-month-old son who was born using a surrogate in India, are launching legal action for full parental rights over Carmen later this month. Lake asserts that he is the biological father and the egg came from an anonymous donor – rather than the surrogate – but the couple is still stuck.
'US citizens in Thailand, are subject to Thai law', said the US Embassy in Bangkok, and under the current law in Thailand the birth mother is recognised as the mother of the child and commissioning parents have no automatic legal rights over a child. 'The [State] Department cannot issue passports to minor children without the consent of the legal parent/s or guardian/s', it added.
Carmen's fathers said they chose Thailand for its top-rate medical facilities and established surrogacy industry for gay couples, but the legal battle comes during a particularly complicated time. At the end of the month, the new law passed in February banning surrogacy for foreign couples to stop Thailand from being a surrogacy hub – after two scandals sparked worldwide attention last year (see BioNews 791) – will take effect.
The couple is hoping to take advantage of a temporary provision that would allow them to leave with the child, but it defines intended parents as 'husband and wife' and Thailand does not recognise same-sex marriages. Consequently NPR points out that 'the lawyers they've talked to say their chances of winning are less than 10 percent'.
Nevertheless, the parents say they'll do everything they can to keep her. 'In our mind there is not a possibility that we can lose Carmen', Lake told CNN. 'She is our daughter and our daughter belongs with us', he added.
The couple has been trying to raise money for their legal action online and has managed to raise more than US$25,000 so far.