The trial of Australian surrogacy agency founder Tammy Davis-Charles was postponed yesterday due to the absence of four witnesses, with Davis and her co-defendants sent back to pretrial detention in Prey Sar prison.
In an unprecedented case, Davis-Charles was arrested in November, along with Ministry of Commerce official Penh Rithy and nurse Samrith Chakriya, for their alleged involvement in an international commercial surrogacy ring.
The industry had blossomed in the Kingdom after high-profile scandals saw the practice shut down in countries like India, Nepal and Thailand. Couples desperate for biological children began to seek out Cambodian wombs to bear their babies.
Cambodia is still drafting a commercial surrogacy law, but a directive from the Health Ministry in October – a month before Davis-Charles was arrested – saw it suddenly outlawed.
In a Phnom Penh Municipal Court hearing yesterday, the prosecution asked the presiding judge, So Lina, to postpone the proceedings, as four witnesses – surrogates allegedly employed by Davis-Charles’s Fertility Solutions PGD business – and police officers had failed to show up.
Davis-Charles’s lawyers objected and urged the trial to go ahead, saying witnesses had already provided testimony that was recorded in court documents.
Judge Lina, however, said she would arrange a new trial date – a decision defence lawyer Chheang Sophorn labelled a rights violation.
“When the court delays the trial, it affects the rights of my client,” he said. “It is just a misdemeanour case, and she has already been in detention for six months.”
Yesterday marked exactly six months since the trio were arrested – the maximum amount of time a person can spend in pretrial detention without an extension.
The three were charged under Article 332 of the Penal Code, originally drafted to combat human trafficking, which involves being an intermediary between an adoptive parent and a pregnant woman, and carries a maximum prison sentence of six months. But they also face a charge related to the possession of fraudulent documents, which could carry an additional two-year term.
Dozens of agencies like Fertility Solutions operated here before the crackdown, with many now setting up in Laos. Cambodia is still smoothing out a court process for an “exit strategy” so intended parents can take their children home.
Last week, Sam Everingham of the Australian-based Families Through Surrogacy took issue with the drawn-out process, saying that “surrogates are giving birth in Cambodia every week to children for foreigners as [the] Cambodian government continues to debate guidelines”.
Chou Bun Eng, of the National Committee for Counter Trafficking, said so far the parents of just 18 children had filed documents at the immigration office to begin the exit process. However, some couples have evaded the courts and taken their newborns across borders.
Bun Eng said couples who left after making a passport for “the Khmer child” without going through Cambodia’s court system, were essentially trafficking children.
The Australian Embassy did not respond to requests for comment regarding any consular assistance to Davis-Charles, or questions about the number of Australian couples they are aiding after the surrogacy crackdown.