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Gay couple win custody in Thai surrogacy dispute

16 May 2016
Appeared in BioNews 851

A same-sex couple have won a custody battle in Thailand against their surrogate after she allegedly refused to allow them to leave the country with their baby because they were not 'an ordinary couple'.

The Central and Family Court in Bangkok last month ruled in favour of Gordon Luke, an American and the biological father of 15-month-old Carmen, and his Spanish husband, Manuel Santos.

'We are just overwhelmed with emotion,' Lake said after the ruling, telling his supporters via Facebook: 'Today is a huge day for love, for family and for truth. And it is also a big day for LGBT rights.'

The judgment settles a dispute that originally began in January 2015 when the surrogate, Patidta Kusolsang, refused to sign the paperwork allowing baby Carmen to be taken from Thailand (see BioNews 812).

It was reported that Kusolsang, who is not genetically related to Carmen, had expressed concern that the child would not be raised by a 'normal family'. She also claimed that she had been unable to understand the surrogacy contract as it was written in English, and that she had to pay her own medical bills.

Both points were disputed by Lake, who also claimed that his sexuality was made clear to the Thai-based surrogacy agency, New Life, from the start.

The case has followed a series of controversies over the use of surrogacy in Thailand. Concerns grew after it emerged that one Japanese businessman had fathered 16 surrogate children (see BioNews 768) , while an Australian couple appeared to abandon their surrogate child after he was born with Down's syndrome (see BioNews 765 and 847).

This promoted the Thai government to clamp down on surrogacy in July 2015, introducing new rules for surrogate parents to gain custody but which only applied to 'husband and wife' (see BioNews 791).

Lake was originally told by lawyers that his chances of gaining custody were less than ten percent. Speaking to NPR last year, he explained: 'The reason [the lawyers] gave us such a low percentage is because, despite the fact there are temporary provisions in the new law just published that say ... parents can ask for their parental rights to be recognised in court, unfortunately, it's worded as "husband and wife".'

However, the Thai court ruled in Lake's favour as, having used an anonymous egg donor, he was the only one with a genetic connection to Carmen.

Since the birth of the child, Lake has spent 15 months living in Thailand with her, but was advised not to disclose his location in case his daughter was taken by Thai authorities once legal proceedings began, the Bangkok Post reports. Lake received $36,000 of crowdfunded donations to fund his accommodation and legal fees while his partner flew between Thailand and Spain, where the couple live with their first child, two-year-old Álvaro.

The couple wish to take Carmen back to their home in Valencia, but they will not be able to do so immediately as the surrogate may seek to appeal the decision. She was not present in court for the hearing, and her intentions are not currently known.

28 November 2016 - by Antony Starza-Allen 
A surrogate who lost a legal battle to keep her child has been granted supervised contact by the Family Court, although her attempt to regain custody has failed...
24 October 2016 - by Lucas Taylor 
Two US couples have filed a petition at the High Court of Bombay to reclaim embryos they transferred into the country before India's ban on international surrogacy arrangements was introduced last year...
19 September 2016 - by Rikita Patel 
The Indian foreign minister has intervened on social media in the case of a British couple who face having to leave the country without their surrogate-born child...
18 April 2016 - by Julianna Photopoulos 
A court in Western Australia has ruled that the twin sister of Baby Gammy, who was born to a Thai surrogate in 2013, should remain with her parents in Australia...
27 July 2015 - by Julianna Photopoulos 
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'...
23 February 2015 - by Julianna Photopoulos 
Thailand's parliament has passed a law banning surrogacy for foreign couples, after two scandals sparked worldwide attention last year...
19 January 2015 - by Ayesha Ahmad and James Brooks 
The surrogate mothers of nine of the babies fathered by a Japanese man and taken into care by the Thai authorities have filed for custody of the children...
1 December 2014 - by Jenny Sharpe 
Thailand's interim parliament has voted in support of a law to ban its largely unregulated surrogacy trade.
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