An Australian nurse and two Cambodian associates were found guilty and each sentenced to 18 months in prison yesterday in the country’s first-ever surrogacy trial, a move observers said was intended to send a strong message of deterrence to surrogacy agents.
Fertility Solutions PGD founder and nurse Tammy Davis-Charles, fellow nurse Samrith Chakriya and Commerce Ministry employee Penh Rithy stood with their hands clasped in front of them yesterday as the guilty verdict was read out at the Phnom Penh Municipal Court.
Davis-Charles remained impassive and declined to answer reporters’ questions as she left the courtroom yesterday, but later sat and cradled her head in her hands.
Chakriya wiped tears from her eyes and nodded when asked if she would appeal the verdict. “It is unjust for me,” she said.
A blanket ban on commercial surrogacy was issued in October last year – a move welcomed by anti-surrogacy advocates who claimed the controversial industry exploited the bodies of vulnerable and impoverished Cambodian women.
The trio were detained just weeks later, but their arrest took place in a legal grey area, with a law on surrogacy in Cambodia still being drafted.
Judge Sor Lina found all three guilty of being intermediaries between a pregnant woman and an adoptive parent, and of fraudulently obtaining documents, such as birth certificates. They faced a maximum of two and a half years in prison.
Davis-Charles was fined 4 million riel ($1,000) and her Cambodian colleagues 2 million riel each ($500). Cambodia’s controversial surrogacy industry – which blossomed after restrictions on the practice in India, Nepal and Thailand – saw intended parents paying up to $50,000 per pregnancy, with just $10,000 going to the surrogate mother.
All three accused had denied aspects of the charges in court. Davis-Charles said she never recruited women to carry foreign babies, saying her role was to care for surrogates during their pregnancy, pay them in instalments and witness the contracts they signed with intended parents. Chakriya, as a nurse and translator, claimed to know very little about the surrogacy process.
Judge Lina found their arguments unconvincing. “The crimes did happen. Tammy Davis-Charles was the representative of the surrogate company, Penh Rithy was in charge of birth certificates and documents to bring the baby out [of Cambodia], and Samrith Chan Chakriya cooperated with Davis-Charles by helping to take care of surrogate mothers,” she said. “Samrith Chan Chakriya truly knew that this was surrogacy.”
Chakriya stopped working for Davis-Charles in July last year, months before her arrest, to give birth to a baby daughter. On the last day of her trial last month, she made a tearful plea for her release and begged to be reunited with her now 1-year-old child.
Davis-Charles also broke down in tears on the final day of the trial, saying her health had suffered at Prey Sar prison. She hadn’t seen her twin boys – born through surrogacy – for the more than eight months of her incarceration.
Rithy’s lawyer, Ouk Vandeth, yesterday repeated his argument that the trio should not be charged retroactively or for a crime that is not regulated by law.
Sam Everingham, of Families Through Surrogacy, agreed and added that Davis-Charles’s sentence needed to be “considered in the context of there being no clear laws around surrogacy in Cambodia at the time”. He said many Australians would see her punishment as “very harsh given Tammy Davis-Charles’s motivations were simply to help childless couples create a family”.
“The three accused should not have been tried retroactively, but unfortunately I think Tammy Davis-Charles has been treated quite harshly to deter other surrogacy operators in this region and given Cambodia’s sensitivities around adoption and child exploitation.”
After Davis-Charles’s arrest, many agencies uprooted and relocated in Laos – sometimes cutting ties with intended parents and leaving surrogates in limbo. Everingham said Families through Surrogacy is not recommending Southeast Asia for surrogacy in the wake of the verdict.
The government in April announced guidelines – officially distributed to embassies last week – for taking babies born through surrogacy out of the country, a process that involves navigating Cambodia’s courts, a DNA test and giving the Cambodian government annual updates on the child’s physical and mental development.
Chou Bun Eng from the National Committee for Counter Trafficking could not be reached for comment, but last week said that just seven parents had applied to leave the country through the correct guidelines.
The Australian Embassy in Phnom Penh said it was “providing ongoing consular assistance . . . to an Australian woman arrested in Cambodia”, but declined to comment further.