By Simon King
THE case of baby Gammy, abandoned by an Australian couple in Thailand after they discovered he had Down syndrome, has sparked calls for an overhaul of “failing” surrogacy laws.
Surrogacy Australia president Sam Everingham said he was “appalled” by the couple’s decision and accused the government of ignoring problems with surrogacy laws for years.
As the six-month-old, who also has a congenital heart condition, remained in hospital in Chonburi last night, after being admitted with a lung infection, Mr Everingham said he was “furious” that the Attorney-General’s Department had been sitting on a report on surrogacy by the Family Law Council for more than seven months. “The government has just ignored this for years and hoped it would go away and this is what happens when you ignore it,” Mr Everingham said. “This tragedy is a really good catalyst now for the government to wake up and say, ‘Hey, let’s take this seriously’. They commissioned the Family Law Council last year to do a report into surrogacy … that got handed to the government, to Attorney-General George Brandis in December, and he has sat on that report for seven months now and hasn’t released it, and we’re furious.”
A spokesman for the Attorney-General’s office said last night the government was considering the report and no date had been set for its release.
Cash-strapped surrogate mother Pattharamon Janbua, 21, and her husband were paid $16,000 by the couple, who are believed to be from Western Australia, to give birth to their baby. On finding out that the unborn child had Down syndrome, they initially pressed for an abortion. When Gammy was born, the couple returned to Australia with only his healthy twin sister.
An outpouring of sympathy for Gammy led to almost $200,000 being raised over the weekend for his future health costs on the “Hope for Gammy” page through crowdfunding website Gofundme.
Ms Janbua said Gammy had a high fever and was gasping for breath. “He had a hard time breathing and is very exhausted,” Ms Janbua said.
Ms Janbua’s mother, Pichaya Nathonchai, 53, said Gammy was improving. “He is a quiet, calm boy … his mother and I are taking turns to see him at the hospital,” Ms Pichaya said.
She added that the family was relieved that donations were coming in.
Ms Janbua said she planned to take care of Gammy.
“I want to see all my children back together again,” she was reported as saying. “I don’t really think too much about the Australian couple. I can’t blame them … I don’t feel upset or angry about them anymore. They might have their own problems too.”
Mr Everingham said Gammy’s story highlighted problems in Australia’s surrogacy laws. “There’s so many Australians who have been trying to have a family for years through unsuccessful IVF, or they can’t because they’ve had a womb removed, and for them this sort of story has been really shocking because they are desperate for a child of any sort and are having to go overseas because the Australia system is failing them,” he said.
He said flaws in the surrogacy system made it hard to engage with it. “It’s so complicated because the laws differ for each state,” he said. “Australia has put in laws that you can’t advertise for a surrogate, you can’t pay a surrogate, there’s no protection for you after the birth if the surrogate wants to keep the child. Those sorts of rules … have made the vast majority of Australians who can’t have children give up on the Australian system and go overseas.”
Mr Everingham said, in becoming a signatory to The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption in 1998, Australia had ignored the consequences for childless families.
“It meant Australia made a policy it would not remove children from their own cultures as far as possible, so there were severe limits put on the number of children Australia would accept from overseas destinations,” he said.
“Average wait times for an overseas adoption are seven years (and) domestic adoption doesn’t occur to any significant degree because kids go to foster care instead.”
Mr Everingham said although it was illegal for people living in Queensland, NSW and the ACT to undertake commercial surrogacy internationally, “this has not stopped the deluge’’.
“The are no laws against them (the Australian couple) going overseas (for surrogacy),” he said.
“The federal government doesn’t recognise them as the legal parent when they come home. The governments in the other states are prosecuting in this area but Gammy’s potential adoptive parents didn’t break a law at home.”
Lawyers described the law around bringing in adopted babies to Australia from international surrogates as “fluffy” and “unclear”.