'Desperate' Australian couples unable to leave Cambodia with surrogate babies.

By Anne Barker

Around 10 Australian couples have been left in legal limbo in Cambodia — unable to bring surrogate babies home months after their birth — as they wait for the Government in Phnom Penh to draft new laws on surrogacy.

The Cambodian Government has begun drafting legislation that will likely ban commercial surrogacy but may allow some form of altruistic surrogacy under strict regulations.

The move comes after an Australian nurse, Tammy Davis-Charles, was charged in November with running an illegal surrogacy clinic in Phnom Penh

At the time of her arrest there was no law against surrogacy in Cambodia. Instead, Davis-Charles was charged by police who deal with human trafficking.

Now six government ministries are drafting Cambodia’s first surrogacy legislation, with consultation from the United Nations.

A spokesman from the Ministry of Women’s Affairs said officials were examining similar laws in Australia, Thailand and India, though it was too early to say exactly what the new laws would include.

The legal hiatus has affected about 10 Australian couples who have paid about $US55,000 ($71,400) to secure a surrogate mother in Cambodia willing to have their baby.

Sam Everingham from the Australian organisation Families Through Surrogacy said a freeze on exit visas meant some couples had been waiting up to three months since their babies were born, but could not bring them home until Cambodia clarified its law.

Australian couples struggle to cope

A Cambodian Justice ministry official told the ABC the Government was considering a temporary legal mechanism that would allow Australian families and babies to leave, even before the legislation was finalised, but that could still take weeks.

“They’re pretty desperate,” Mr Everingham said.

“They have had partners who have had to come home to Australia to go to work.

“They’re left juggling one or two kids on their own in a foreign country. It’s pretty tough.”

The drawn-out legal process has also left surrogate mothers in Cambodia high and dry.

Most women are paid between $10,000 and $13,000, but Mr Everingham said surrogacy funds had also been frozen since Davis-Charles’ arrest.

“They’re meant to get a regular payment every month to help with their living allowances and food and so forth. And those funds were all frozen when Tammy (Davis-Charles) went to jail,” Mr Everingham said.

“So it’s been very tough I think for the company to support those surrogates.”

Mr Everingham said legislation banning surrogacy would not stop the practice, but instead send it underground.

“We’ve seen this occur in other countries where altruistic surrogacy has been allowed, and there have still been payments provided under the table to surrogates,” he said.

“So it’ll probably mean surrogacy will continue in Cambodia if that’s the case, but go underground. Agencies tend to write contracts so they look altruistic, but they aren’t in reality. It’s a tricky area.”

One women’s rights organisation in Phnom Penh last week warned that any move to allow even altruistic surrogacy in Cambodia could endanger the lives of poor, young women, by placing financial pressure on them to act as surrogate mothers.

Couples look to other countries for surrogacy

Cambodia is the latest of several countries in south and southeast Asia to tackle the issue of surrogacy.

In recent years Thailand, India and Nepal have all cracked down on commercial surrogacy, leaving foreign couples wanting surrogate mothers with fewer options.

Indeed many Australian couples are now heading to neighbouring Laos, one of the few countries left in the region without any laws banning surrogacy.

It is understood the Government there has recently approved several new IVF clinics in the capital Vientiane that rely on Thai doctors to perform surrogacy procedures.

One such doctor — Monash University-trained Dr Pisit Tantiwattanakul — was questioned by police and forced to close his clinic in Bangkok after Thailand cracked down on surrogacy in 2014, in the wake of the Baby Gammy scandal.

Dr Tantiwattanakul is listed online as the head of IVF International Laos.

Mr Everingham said new Australian couples were heading to Laos virtually every week seeking surrogacy services, despite the cost being considerably higher than for surrogacy in Cambodia at about $90,000.

Ironically, the higher cost is partly to pay for Lao surrogates to travel to Bangkok to give birth, even though commercial surrogacy is now banned in Thailand. Lao hospitals lack good neonatal or intensive care units.

“They’ve banned it for Thai women,” Mr Everingham said.

“The loophole these agencies are exploiting is the fact that if you’re a non-Thai woman you can still give birth to a surrogate baby in Thailand.”

But he addsed: “I doubt they [Thai authorities] would know this is occurring.”

Already one Melbourne couple has returned home with a baby born in Thailand to a Lao surrogate. More Australian families are waiting for their babies.

Mr Everingham said the longer-term solution to Australia’s surrogacy demand was to persuade the Australian Government to reform laws that currently banned all but altruistic surrogacy in Australia, and allow more payments to cover a surrogate’s costs.

“More payments to cover costs, but also more supervision and screening of surrogates and supervision of the support during pregnancies,” he said.

“We can’t keep relying on third-world nations to deliver babies for Australians. It’s just not sustainable.

“We’ve got a lot of people who can’t have children naturally who have gone through the IVF system for years, and I think for those people it would hugely benefit them having a service like this that would allow them to engage at home rather than going offshore.”

This post originally appeared on ABC News.