A gay man in Thailand is unable to leave the country with his biological daughter because the infant’s surrogate mother disapproves of his same sex-marriage. A recent shake-up in the country’s surrogacy laws means that he and his husband of ten years are trapped in a bureaucratic quagmire — and forced to hide away with Carmen, their six-month-old daughter, for fear of losing her.
“We found out in a chat message send from the surrogate mother’s translator and family friend that she wanted to keep Carmen,” Gordon Alan “Bud” Lake III, the infant’s biological father told ThinkProgress in an email. “We were in complete shock. It is the worst nightmare of anyone doing surrogacy.”
The nightmare began after Carmen’s surrogate mother found out he was gay, Lake said. That happened after she had signed off on her birth certificate and let Lake take her from the hospital. After learning about Lake’s husband, however, she refused to sign the documents required to obtain a passport for Carmen, and pressed charges for child abduction.
“Since the surrogate mother will not collaborate I understand that we need a court order granting my full parental rights or partial rights, but with the right to travel.”
A few years ago, Lake and Santos successfully fathered one of an estimated 40,000 surrogate children born in India. Their son Álvaro was born there — the only Asian country where surrogacy is officially legal. When India blocked same-sex couples from engaging in surrogacy in 2013, Thailand began to look like a good alternative.
While surrogacy has technically been illegal in the country since 1996, the law was hardly enforced and surrogacy boomed. But that changed in February, when Thailand passed a law completely banning surrogacy services for foreigners in February. The new law imposed harsh jail terms and steep fines for anyone involved in surrogacy — including potential would-be surrogate mothers. While provisions in the new law allowed foreigners who were already involved in parenting children through surrogates to obtain custody of their children and leave Thailand, Lake and his husband Manuel Santos, were not able to do so. Because the country doesn’t officially recognize same-sex marriages, obtaining rights has proven nearly impossible.
“First of all, they are not ‘natural parents’ in Thai society. They are same-sex, not like male and female that can take care of babies.”
That’s because the law was written only to accommodate different-sex couples.
“And even though this new law has a temporary provision allowing all intended parents to claim full parental rights over their children, it, too, is discriminatory as it uses the phrase ‘husband and wife,’ hence closing the clear path to exiting the country that Carmen should be eligible for, because we are a gay couple,” Lake and Santos wrote in crowd-funding appeal to help them cover their court fees and the cost of living in Thailand as they work through what is showing signs of being a prolonged custody battle with a woman who isn’t even related to their daughter.
Carmen was conceived through Lake’s sperm and a donor’s egg and has no biological relationship to the Thai woman who birthed her. Despite this, he said that she has refused to sign the documents needed for them to obtain a passport for their newborn.
But Patidta Kusongsaang, the surrogate mother, has stood by her claims to keep the baby, in part, because of the same preference for children to be raised by different-sex couples that the anti-surrogacy law upholds.
“First of all, they are not ‘natural parents’ in Thai society. They are same-sex, not like male and female that can take care of babies,” Kusongsaang told a reporter with the podcast, Life of the Law. “I worry [about] if the baby goes with these parents, what will happen to her? On the news it says people sell baby parts or take stem cells to sell in the market. So I’m afraid many things could happen.”
Kusongsaang also said that the contract she signed through the surrogacy agency that Lake approached to arrange the birth was in English, and she couldn’t read it.
Lake, who is American and married to a Spaniard, told ThinkProgress that he didn’t sign a contract with the surrogate directly, but with New Life, the surrogate agency he approached to help him father a child. He added that the agency signed a contract with Kusongsaang. Lake said the agency did not allow he and Santos to contact the surrogate mother, although he said was aware from the beginning that he was gay and married to a man. Further, Lake and Santos already paid the woman a large portion of the $10,000 or so that surrogate mothers are offered per child.
Mariam Kukunashvili of New Life said she tried to help Lake and Santos come to an agreement with Kusongsaang, although Lake said she was of little help at all.
Already engaged in a custody battle that lawyers say the couple only has about a 10 percent chance of winning, Kusongsaang recently charged Lake and Santos with child abduction.
“We were raising the funds to prepare a court petition to recognize my paternity request [to obtain] full parental rights over Carmen. Answering the child abduction charges are just another pull on our resources,” Lake said noting that he and his husband have already borrowed money from family and friends — and used up the nearly $25,000 they raised through their Fundly crowd-sourcing campaign.
The child abduction charges have made it even more difficult for Lake and Santos to continue living in Bangkok — although they are still unable to leave with their daughter.
Even though Kusongsaang acknowledged that Carmen had no biological connection to her, she said she developed “a special bond” with the baby.
“We ate the same things, drank the same things, breathed the same air, and that relationship made me very, very happy,” the surrogate said.
Verutai Maneenuchanert who is a legal advisor to the Thai Senate feels that connection is more real than the one Carmen’s biological father and his husband have with the baby.
“I don’t feel sad for them,” she told Life of the Law. “Patidta [Kusongsaang] is the only victim here, because they don’t allow her to see the baby. [Lake and Santos] see the baby as a product that comes from the supermarket. They’re only sad because their product has been damaged. And now they’re trying to intimidate [Kusongsaang and] tell her she’ll end up in prison if she doesn’t honor her contract.”
Lake has a very different view of things.
“We have wanted this baby very much for a very long time,” he told ThinkProgress. “We didn’t just accidentally want to raise her. We have wanted her from the start — our intention was always to be parents.”
Although the odds — and the legal hurdles are stacked against him — Lake and his husband are hopeful that they’ll win custody of their daughter. They’ve vowed not to leave Thailand until they do.