Surrogacy in Cambodia
Navigating the legal minefield in SE Asia
As of November 2016, Surrogacy in Cambodia is banned by the Ministries of Health and of Justice. Changes in the regulations in that country have outlawed surrogacy and local actions by the authorities have made it clear that the prohibition will be treated seriously.
For months, Cambodia officials have struggled to decide how to treat surrogacy from a legal perspective. The lack of laws made the infertility treatment widely available, but also risky. However, the Health Ministry has since announced that the Law on the Regulation of Donation and Adaption of Human Cells, Tissues and Organs banning the commercial donation of human organs would be applied to the process of gestational surrogacy in Cambodia. That decision has effectively made surrogacy in Cambodia illegal.
The move to restrict surrogacy in Cambodia is not surprising. Sensible Surrogacy has previously recommended that prospective parents consider clinics in Eastern Europe or North America as alternatives to pursuing surrogacy in Cambodia.
The law on Surrogacy in Cambodia
In November 2016, the Cambodian Ministry of Justice issued a “Prakas” stating that Embryo Transfers for surrogacy are now prohibited in that country. The exact wording is “Surrogacy, one of a set of services to have a baby by Assisted Reproductive Technology, is banned completely”. The single line in the Prakas was both brief and vague… but it has effectively ended surrogacy in Cambodia for Western couples.
Legal experts in Cambodia agree that the current ban falls short of an actual law against surrogacy.. However the Cambodian Justice Ministry has take a unilateral action to forcibly stop all surrogacy procedures in Cambodia, regardless of not having any specific laws are legal framework. In Cambodia there is no need for a specific law for the government to take drastic action against service providers and parents who it considers to be acting against the country’s best interests.
The statement by the Health Ministry specifically excluded other ART and infertility treatments that may relate to surrogacy. For example, IVF procedures can continue as planned, oocytes can be imported/exported from the country, embryos can be conceived and moved to alternative clinics. Only the embryo transfer procedure has been prohibited if the recipient is a surrogate mother. That said, following arrests of surrogacy and threats by the Justice Ministry against clinics and agents, there are few IVF clinics that openly perform IVF procedures for foreign couples.
The Health Ministry prohibition has also been criticized for lacking either enforcement or bureaucratic support. In short it states that surrogacy in Cambodia is banned, but it doesn’t say how it will be banned or how it will be enforced. Those details are likely to come with new legislation on surrogacy in Cambodia in the coming year. While a law has been a source of speculation, we now can assume that the legislation will codify the ban and add specific restrictions and penalties.
The government has been drafting legislation specifically to address surrogacy in Cambodia. In August 2016 the Minister of Women’s Affairs said that “the ministries will soon submit a report to the government to talk about the advantages and disadvantages of surrogacy.” But that legislation was not expected for at least six months, according to sources with connections to the Health Ministry.
Earlier in the year the Cambodian Health Minister also confirmed that surrogacy legislation was being discussed. “Until now, we don’t have a law to ban or regulate surrogacy and we are discussing together with the Ministry of Justice to regulate the industry to avoid problems,” according to the Phnom Penh Post.
When the new law arrives, we anticipate new bureaucratic processes to ensure surrogacy in Cambodia is fully ended and to prevent and dissuade clinics from offering creative options.
Alternatives to Surrogacy in Cambodia
Although surrogacy in Cambodia is now banned, standard fertility treatments will not be affected by the restriction. IVF procedures can continue as planned, oocytes can be imported/exported from the country, embryos can be conceived and moved to alternative clinics. Only the embryo transfer procedure has been prohibited if the recipient is a surrogate mother.
Service providers who worked exclusively in Cambodia are now developing packages to take advantage of the policy by creating cross-border programs with nearby countries, such as Laos or Malaysia. Some programs already offer to conceive embryos in Cambodia and then send them to other countries for the surrogacy procedure. Reputable consultants should recommend clients go to a country with friendly laws and a supportive medical infrastructure for surrogacy.
For couples with few financial options, a likely option will include surrogacy programs in nearby Laos. At least two reputable IVF clinics in Vientiane were opened after the change in laws in Thailand. Now these clinics may become destinations for surrogacy families turned away in Cambodia.
Laos is next to both Cambodia and Thailand, and some agents find it convenient to move across the border to complete surrogacy procedures. In some cases, traveling across the border may be a necessary emergency option, but couples researching surrogacy in Cambodia should look outside southeast Asia.
Some excellent clinics in Bangkok have opened branches across the border in Laos. For some cases, clinics in Cambodia may continue with the IVF procedures as planned, but the actual embryo transfer will happen across the border.
The position of Sensible Surrogacy is that Laos is not a sustainable solution for couples shut out of surrogacy in Cambodia. Laos is a possible option for couples who are already committed to Cambodia, but new clients should not be recommended Laos as an option.
Surrogacy in Thailand was closed after 18 months. Mexico was closed after about 12 months. Nepal closed after about 5 months. At this rate, we anticipate Laos also will restrict surrogacy soon.
Sensible Surrogacy recommends pursuing surrogacy in the United States (where the price of surrogacy has been falling substantially) or Ukraine (which has the most supportive legislation for surrogacy worldwide).
Sensible Surrogacy in Cambodia
Although some clinics may be willing perform surrogacy in Cambodia, Sensible Surrogacy generally advises clients to first consider destinations where a firm legal framework is in place, such as the United States or Ukraine.
For couples who are not able to pursue options in other countries, we can assist you in finding the more reputable services available, as well as those services that are focused on the ethical treatment of local surrogate mothers.
When considering options for surrogacy in Cambodia or elsewhere, a first priority should always be the well-being and ethical treatment of local surrogate mothers. This is especially true in counties where there is no legal framework to protect surrogates’ rights. Under these circumstances it falls to the Intended Parents themselves (and their local representatives) to take a proactive, ethical approach.
Surrogates should be given reasonable compensation commensurate with the effort and risk they assume. Surrogates should have legal counsel in their native language to ensure they fully understand their legal rights and are able to make informed decisions. And surrogates and their families should have access to the excellent health care both during and after the pregnancy to ensure their health and welfare.
The ethical treatment of surrogate mothers in jurisdictions like Cambodia is always a goal of Sensible Surrogacy. And we take steps to find local representatives that work with women in a responsible way that benefits everyone and protects the rights of both surrogates and Intended Parents.
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