The waters of international surrogacy agreements can be legally murky, further complicating an already challenging and expensive process. Still, when gay Spanish-American couple Manuel Santos and Gordon Alan Lake III contracted the services of a Thai woman as a gestational surrogate, they had no idea that a legal nightmare that would unfold around them.
It was a nightmare that would see the two men crowdfunding to stay an additional year in Thailand, as they fought for the right to take their baby Carmen home with them.
Toward the end of April in 2016, Bangkok's Family Court finally ruled in favor of Gordon Lake as Carmen's legal custodian. Lake is Carmen's biological father, as it was his sperm which was used – along with a donor egg – to create the embryo that was implanted within their surrogate's womb.
The problem with Lake and Santos' arrangement manifested when their Thai surrogate, Patidta Kusongsaang, decided that she wanted to keep Carmen herself after learning that the intended parents were a gay couple.
“They are not natural parents in Thai society,” Kusongsaang explained through an interpreter. “They are same-sex, not like male and female that can take care of babies.”
She also complained of being repeatedly refused access to baby Carmen. “They treated me very badly, they said I had no right to see the baby.” When it came time for the couple to leave with their child,, Patidta Kusongsaang did not sign the documents necessary for a passport required to take Carmen out of the country.
Lake and Santos emphatically deny ever refusing Kusongsaang access to Carmen.
The situation was made more complicated by Thailand's lack of recognition for gay marriage, and was complicated further still by changes in the laws, politics, and social atmosphere of Thailand in regard to gestational surrogacy. Many of these changes had occurred during the time that the couple's contracted surrogate was still pregnant with Carmen. They resulted from the case of a child named Gammy, which was widely broadcast by the Thai media.
Surrogacy is already considered unlawful in Spain, where Lake and Santos live. Their first child, son Alvaro, was born a year and a half before Carmen via the services of an Indian surrogate.
When Santos and Lake made arrangements to have Carmen, their second child, carried to term by Thai surrogate mother Patridta Kusongsaang, it was during a period when the Thai surrogacy industry was burgeoning. At the time, it showed no signs of slowing down. Lax government regulations allowed for Thai women to be paid for providing this service, but did not enforce a particular amount for their fee. On average, Thai surrogate mothers wound up being paid about $15,000. This amounted to a significant fee in Thailand's economy, while being very affordable by many other countries' standards. Coupled with a sophisticated, thoroughly modern medical industry, it made Thailand a very appealing choice for those looking to start a family via the services of a surrogate mother.
An Australian couple commissioned twins from a Thai surrogate mother, but were horrified when one of their contracted children developed Down syndrome. They took the child's healthy sister home with them to Australia, but left baby Gammy with his Thai mother. While the mother was apparently more than happy to keep him, the Thai media generated a great deal of public resentment and distrust toward the surrogacy industry. Surrogacy was portrayed as being no different from human trafficking, and women like Kusongsaang – who attempted to keep Carmen despite having been paid her fee – were widely upheld as heroes. Thailand's military government responded succinctly: there would be no more paid surrogacy in Thailand, and no more surrogacy at all for foreigners.
There was a grace period imposed for those who already had children on the way, and – in all fairness – it appears to have worked for most. Only Kusongsaang's efforts to keep Carmen impeded Santos and Lake's ability to return home, an impediment which they placed on the shoulders of Patridta Kusongsaang and the Thai government's lack of recognition of homosexual marriages. “Thai law should have allowed us to petition for our parental rights in court,” said Lake, during an interview in July of 2015. “But unfortunately, it is worded as 'husband and wife.'”
“It's not fair,” Santos added. “We are married in the [United] States, in Spain, in Europe, and I respect the law, but they have to understand that everything changed in our [life] when all these things about surrogacy [changed]... and we didn't have anything to do with that.”
Lake went on to add that “We're having to stay [in Thailand]... We're having trouble with our jobs, our finances, and this is all [Kusongsaang's] fault. We've done nothing wrong.”
The Family Court of Thailand fell short of recognizing Lake and Santos as a married couple. Gordon Lake's lawyer, Rachapol Sirikulchit, was able to argue successfully that Lake should be Carmen's sole recognized guardian, as he is her biological father.
Carmen will now be able to fly home to Spain with her parents.
“We won,” Santos said to journalists outside the courtroom, who were waiting on a resolution to the case. The matter had gained significant media attention throughout Thailand, generating significant sympathy for either side.
“We are happy,” Santos went on to say. “We are really happy... This nightmare is going to end soon.”