Thai surrogate twin may not have been abandoned

The Australian couple accused of leaving one of their twins with the surrogate mother deny abandoning him. It was initially reported that the couple, from Bunbury south of Perth, only took the twin girl home with them, as the boy was born with Down’s Syndrome and a heart condition. This story has received a great deal of press coverage, and many people are shocked at what was initially claimed, as can be seen by the reaction in the Australian press.

“It is an act so cruel and mercenary you struggle to believe anyone who thinks they have what it takes to be a parent could go through with it… The ripple effect of their choices will be felt by thousands of people.” – Herald Sun

The Thai surrogate mother was to be paid the equivalent of $9,300 by a surrogacy agency in Bangkok when the twins were born last December, but has still not been paid the full amount. The Australian couple state that they never knew of a twin son being born, despite the intended father visiting the twin in hospital. They claimed that they experienced trouble with the surrogacy agency, which no longer exists, and described it as traumatising.

The surrogate claims that the father came to the hospital to take care of the girl, but never looked at or carried the boy, despite the twins staying next to each other. In response to this, the father initially claimed that the language was a barrier at the hospital and that he did not even know who the surrogate was. He stated that it was very confusing, and that they were never told about the twin boy by the agency.

Through friends, the couple have now told the press that they did know of the second child. They were apparently told that he had a heart condition and would not survive. They were not able to take him back to Australia as planned, as his mother wished for him to stay in Thailand and have a Thai funeral. They state that as Thailand was in military lockdown at the time, it was very difficult to move around the country and to stay they would risk losing their baby girl too.

Perhaps the most concerning part of this story, is that the surrogate mother states that she was asked by the agency to abort the child with Down’s Syndrome at 7 months. She refused on the grounds of her Buddhist beliefs.

Regardless of what the correct version of events is, the surrogate mother is left caring for a child that was intended for another family. She plans to keep the twin boy, and raise him as her own. An online fundraising campaign has raised more than £120,000 to help with the baby’s medical expenses.

Surrogacy arrangements are not illegal in the UK, but are not legally enforceable. Commercial surrogacy agreements are however illegal, and the surrogate mother can only be paid “reasonable expenses”. This is a highly complex area of the law but in generality in English law the surrogate mother holds full parental rights for the child on birth until those rights are extinguished and assumed by the intended parents by the making of a parental order.  The surrogate can refuse to hand the baby over to the intended parents. however, as demonstrated in this situation, there is no obligation on the commissioning (intended) parents to take the child.

This is an evolving area of the law, and you should always seek legal advice before considering a surrogacy arrangement. Our Family Law Specialists will be able to advise on all aspects of the surrogacy process, so if you have any questions contact us today.