Surrogacy Trouble in Mexico and Thailand
More than a year since their daughter Carmen's birth via surrogacy in Thailand, Manuel Santos Valero and Gordon "Bud" Lake, both 41, are still fighting for the right to take her home to Spain. Their custody battle with Patidta Kusolsang, the surrogate who gave birth to their daughter, concluded this week. The court has scheduled a judgment for April 26.
Kusolsang gave birth on January 17, 2015 and handed the newborn over to the couple. The family left the hospital together. Then, when it came time to sign the necessary documents for Carmen to leave the country with her family, Kusolsang refused.
“We never expected this — until the night before we were supposed to meet at the embassy and do the paperwork, and our translator says, ‘She wants to keep the baby,'" Lake says. "I was in complete shock."
Kusolsang said she had changed her mind when she learned the baby would be raised by a gay couple. She has since said she believes they are involved in human trafficking.
The couple has argued in court that she always intended to keep the baby, pointing on Facebook posts she made before and during the pregnancy.
The 14 months since Carmen’s birth have turned the family members’ lives upside down. Santos has remained in Thailand with Carmen while Lake and the couple's 2-year-old son Alvaro, born via surrogacy in India, have returned to Spain. Lake, an American citizen, lives in Spain and works in marketing. Santos is a Spanish citizen who has been able to work remotely while residing in Thailand. The family has moved several times in Thailand after what they believe were attempts by the surrogate to kidnap Carmen.
"We've had to make the most important decisions of our entires lives on a daily basis of how to deal with this," Lake says. "It's tested our relationship so much. Because we've just had to also, at the same time, having completely different views, had to completely trust each other."
Kusolsang and her attorney have accused the couple of human trafficking on national television in Thailand after what Lake says is their misinterpretation of some the couple's surrogacy documents. The surrogate says she "found" the documents concerning the previous implantation in the hospital room where she gave birth. But Lake says she stole them, according to documents Lake provided along with translation from Thai.
The couple's surrogacy agency, New Life, recommended Kusolsang as a surrogate after a first, failed pregnancy attempt with another surrogate.
Carmen was born using a third-party egg donor and Lake's sperm. She bears no biological connection to Kusolsang, though Lake suspects the surrogate thought she was the mother. In fact, he believes New Life failed on many fronts including properly evaluating Kusolsang's fitness to become a surrogate and neglecting to inform her that the intended parents are gay.
"We signed a contract with the agency—an egg donor contract and the surrogate contract—but we don't have the contract [between] the surrogate and the agency. We're certain that they did no background check and that the care and follow-up was nowhere near it needed to be," Lake said. "She probably never should have been a surrogate."
Thailand enacted a law to restrict commercial surrogacy on July 30, 2015, but by that time the couple had been vying to return home with Carmen for more than five months. Lake hopes Thailand's new surrogacy law will lean in their favor. Though the law prohibits surrogacy for foreign and gay couples, it also clarifies rights for those already in the process before it passed.
In the meantime, the couple has decided to fight back in the press and on social media.
"It's been this enormous, enormous communications effort," Lake says. As the native English speaker, he conducts most interviews, while Santos writes blog posts and social media posts in Spanish for Lake to translate. Two Thai women living in Europe help the couple translate their communications and other press coverage into and from Thai.
Supporters of their campaign to bring Carmen home to Spain have donated more than $37,000 to the family to assist with legal fees.
"We're hoping it's the end of a very long nightmare," Lake says.
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A New Zealand couple, David and Nicky Beard, have found themselves trapped in Mexico with their three newborns amid changing surrogacy laws in the country. Twins Blake and Kelly were born to one surrogate, and Lachlan to another, in Villahermosa, Mexico.
David Beard, 41, the children's biological father, is a lawyer and owns the Auckland law firm LegalStreet. Nicky Beard, 32, is originally from Ireland.
TheJournal.ie reports the couple says Mexico’s government has assured them they will be allowed to take their children, born in February out of the country. The couple, concerned by how slowly the process has gone and now heavily in debt, has called on the New Zealand government to intervene.
The Mexican state of Tabasco changed its surrogacy laws last year to curtail a thriving international surrogacy industry there. When the new restrictions came into effect in Mexico, the Beards' surrogates were already pregnant.
Mexico's new law followed widely reported instances of abuse in Thailand and India that prompted new restrictions in those countries. Indeed, the couple told Stuff.co.nz one of their children was born prematurely in a cockroach-infested hospital.
According to the couple, their Cancún surrogacy agency simply disappeared in the wake of the legal change and left them responsible for medical bills including additional costs to care for premature Lachlan. The agency they worked with in North America has distanced itself from the case, saying they were only responsible for transferring payments to the Cancún clinic.
Though the Beards have appealed to New Zealand's immigration minister to issue New Zealand passports to the infants at the country's Mexico City embassy, New Zealand's Ministry of Social Development has said the couple will only receive assistance with the process of the non-biological father adopting the children once they arrive home.
A family friend has set up a fundraising campaign to help the family cover medical costs.
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Our hearts go out to these families and we sincerely hope that these gay dads will be able to bring home their children very soon.
To be sure, these two cases clearly show that there are some serious potential issues with international surrogacy, often due to poor regulation and oversight. (Unfortunately, surrogacy agencies and clinics sometimes work in gray areas of a country’s laws.)
Advice to gay men considering international surrogacy: Read our article on international surrogacy. (Please note that surrogacy in Mexico for gay men is no longer an option.) When it comes to choosing your surrogacy agency and fertility clinic, be extremely thorough in your research. Make sure your carrier and egg donor know that you are gay, and consider getting independent legal advice. For important suggestions about what to look for in surrogacy agencies and clinics in general, watch our video.