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Stronger surrogacy law anticipated

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Australian national and surrogacy agent Tammy Davis-Charles hides her face as she is escorted from the Phnom Penh court. Hong Menea

Stronger surrogacy law anticipated

All forms of surrogacy are banned in Cambodia as the government continues to mull draft legislation to further restrict or end the practice entirely by next year.

Cambodia’s National Anti-Human Trafficking Committee vice-chair Chou Bun Eng told Al Jazeera that the government is “still thinking about how to make the new law or the amendment to the law consistent with the existing law”.

Bun Eng also said the new legislation aims to encompass every aspect of surrogate practice including in vitro fertilisation, sperm banks and the sale of breast milk.

Sam Everingham, the founder of Families Thru Surrogacy, a not-for-profit Australian organisation which aims to inform contracting parents about issues related to surrogacy including best practices, said he anticipates that the government will ban surrogacy as a whole.

“We’re hoping Cambodia moves to put some laws in place to overcome this uncertainty. It would be good for all parties to have some laws in place. In the current legal vacuum, it’s very hard for people to know what’s happening and what’s going to happen,” he said.

The government issued a prakas banning commercial surrogacy (while allowing altruistic practices), as reported by The Post in November 2016.

However, after the high-profile Tammy Davis Charles arrest in Phnom Penh weeks later uncovered an underground network of fertility agencies, clinics, impoverished surrogate mothers and Chinese nationals who contracted their services, the government banned the practice while it worked to ratify the law to curb abuse.

High Commissioner for Human Rights in Cambodia (OHCHR) country representative Simon Walker said: “In Asia, there’s been a transformation in the [global surrogacy] phenomenon because of changes in legislation. As bans moved from one country to another, interest has moved [with them].

“India banned [commercial] surrogacy, then Thailand banned it and it moved to Cambodia. Cambodia banned it and it moved to Laos . . . so we see a migration of demand in Southeast Asia.”

‘Very different approaches’

Davis Charles operated a fertility clinic in Bangkok before shifting her services to Phnom Penh. Thailand banned commercial surrogacy in 2016 and does not allow foreigners to engage in “altruistic” services.

Meanwhile, India which took a near identical approach to the issue as Thailand, passed The Surrogacy (Regulation) Bill 2016 this month.

Under the law, only prospective heterosexual Indian parents who have been married for five years may commission a “close relative” of the couple without financial compensation (except medical bills).

“There are very different approaches and not necessarily a clear thread of logic from country to country. It’s difficult to say what will happen in Cambodia. There’s no human rights position as such on surrogacy. There’s no right to surrogacy – no right to protection from surrogacy. So we look at a series of human rights [cases] in relation to the main people involved,” Walker said.

Everingham, who has two children of his own via international surrogacy, said the only position that makes sense is to entirely ban both compensated and non-compensated forms of surrogacy.

“It doesn’t really seem viable to have an altruistic model in Cambodia when most of the Cambodian population doesn’t even understand surrogacy,” Everingham said.

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