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  #1  
Old 01 August 2014, 08:52 AM
catty5nutz catty5nutz is offline
 
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Default Australian couple leaves Down syndrome baby with Thai surrogate

Go figure the legal and moral implications of this one. It is a right quackmire! Who is responsible for this little guy?

Gammy, a six-month-old baby abandoned by his Australian parents, could die because his impoverished Thai surrogate mother cannot pay for medical treatment for his congenital heart condition.

The child will never know his twin sister, who was born healthy with him in a Bangkok hospital and has been taken away by their parents, who are living anonymously in Australia


Read more: http://www.smh.com.au/national/austr...#ixzz398252dRR
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  #2  
Old 01 August 2014, 02:10 PM
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If the child is genetically the son of the Australian parents, it sounds like a clear case of child abandonment. Unfortunately, since he is in Bangkok, I assume he doesn't qualify for Australian medical care.

Seaboe
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  #3  
Old 01 August 2014, 05:32 PM
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Citizens in Australia have donated at least AUS$60,000 towards his care but according to reports he's incredibly sick at the moment and may not survive long enough for that money to make any difference.


Edit: here's an updated article
http://www.smh.com.au/national/aband...801-zzj76.html

The Thai reporter who talked to the birth mother actually gave her some money so the baby could stay in hospital for that night. The Australian authorities are apparently talking to the Thai authorities on the matter.
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Old 01 August 2014, 05:45 PM
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Quote:
Originally Posted by Seaboe Muffinchucker View Post
If the child is genetically the son of the Australian parents, it sounds like a clear case of child abandonment. Unfortunately, since he is in Bangkok, I assume he doesn't qualify for Australian medical care.

Seaboe
Yes, exactly. (Actually, I'd say it's true regardless of the genetics as long as the contract is clear that she's carrying their child(ren), and it isn't genetically her child. They could have used donor products.) They clearly think the twin is theirs. Assuming there's a clear surrogate contract, it seems like something that calls for criminal charges to me. While that would be potentially harmful to the twin, they maybe shouldn't be parenting any baby anyway.
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Old 01 August 2014, 06:28 PM
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Someone please correct me if I'm wrong, but I'm remembering a case in the US where a surrogate refused to give the baby to the parents because she discovered that one of them had a history of mental illness. In that case, the courts stated that the surrogate was the mother and did not have to give up custody. She gave birth to the baby, so it was hers to decide to do with, at least in that state.

This website says that in places where surrogacy is more common, though, that the parents are considered to be the bio or contributing parents. http://www.surrogatemothers.org/can-...keep-her-child

I'm just bringing it up because there is some precedent in some places in the world that the person who gave birth can be held completely responsible for the child.
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Old 01 August 2014, 07:37 PM
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Yes, I think a whole lot depends on the legal status of surrogacy, and if it's fully recognized, then also what is spelled out in the contract. If surrogacy isn't fully recognized, then it's probably viewed more like an adoption, where if the parents back out, the child belongs to the surrogate, or the surrogate could back out and keep the child.

In my earlier post that criminal charges should be brought, I was assuming surrogacy was fully legally recognized, but of course that may be a bad assumption. It may not be a clear cut case of anything, depending on the laws. (It sure sounds like a case of exploitation, though. I wondered about what the contract might have said about selective reduction, multiple pregnancy, and birth defects. But given the power dynamics involved, I'm not sure how much of their agreement ought to be binding against the surrogate.)

ETA: I think the practice I hear about the most these days is for the parents to use their own genetic material, or donor products from other parties, so that the carrier of the pregnancy is not genetically related to the child. So that weakens any claim by the carrier that it's her child. Also, around here, anyway, the term used is "gestational carrier" since surrogate mother suggests a parental relationship that usually isn't intended to exist.

Last edited by erwins; 01 August 2014 at 07:49 PM.
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  #7  
Old 02 August 2014, 01:51 AM
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I think the fact that there was a twin makes an interesting twist. Either the children 'belong to' the bio parents, in which case, abandonment,
or
the children 'belong to' to surrogate, in which case, kidnapping.
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  #8  
Old 02 August 2014, 02:20 AM
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Ellestar, could you by any chance be talking about This case?

I met the surrogate mother from that case in a local restaurant and started up a conversation with her, not knowing who she was.
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Old 02 August 2014, 03:04 AM
Ellestar Ellestar is offline
 
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Quote:
Originally Posted by HelloLlama View Post
Ellestar, could you by any chance be talking about This case?

I met the surrogate mother from that case in a local restaurant and started up a conversation with her, not knowing who she was.
Yes. That's the one I was familiar with. Thanks.
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  #10  
Old 02 August 2014, 04:34 AM
catty5nutz catty5nutz is offline
 
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I can remember another case from the early 1990s, I think. A woman agreed to act as a surrogate for a childless couple. During the pregnancy, it was discovered that she was carrying twins, and the couple assured that they would take both babies. The woman gave birth to a healthy boy and girl, and handed the babies over to the couple as agreed, and went home to her own children and husband.

Then, she discovered that the couple had put the boy in foster care, but kept the girl. Why, I don't know. With the support of her husband, she went and got the boy out of foster care, deciding to raise him herself. Then, she took it one step further, and sued the couple for custody of the girl. She was successful, and got permanent custody of the girl as well.

I think that in this case, the surrogate mother was the genetic mother of the twins. The pregnancy had been achieved via artificial insemination rather than IVF. So, as the genetic, as well as gestational mother she had a pretty good chance of getting custody anyway.

I am not sure what the laws surrounding surrogacy in the USA are. I realise that they may vary from state to state. Does the law recognise the woman who carried and gave birth to the baby as the mother? Or are the genetic parents considered the parents.

NZ surrogacy laws work something like this

http://www.howtolaw.co.nz/surrogate-...idp392239.html

Oh, and another article. The surrogate/gestational mother seems to want to keep Gammy, and bring him up as her own child. But her poverty prevents her getting him getting the specialised care that he needs.

http://www.stuff.co.nz/world/asia/10...ned-by-parents

Last edited by catty5nutz; 02 August 2014 at 04:49 AM.
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  #11  
Old 02 August 2014, 05:15 AM
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The laws here are an unbelievable mess. They range from very strongly recognizing surrogacy contracts as enforceable to actually criminalizing surrogacy arrangements. Here's a summary by jurisdiction. (I can't vouch for its accuracy, but I also have no reason to doubt it. The summary of Oregon law simplifies things, but it isn't inaccurate.) http://www.infertilityanswers.net/su...state_by_state

ETA: According to Wikipedia's summary of Australia's surrogacy laws, depending on where the couple lives they could have violated criminal law by entering into an international commercial surrogacy agreement. (I'm assuming the payment made it a commercial agreement and that all of that money wasn't just for the surrogate's care). http://en.m.wikipedia.org/wiki/Surro...ntry#Australia

Last edited by erwins; 02 August 2014 at 05:30 AM.
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  #12  
Old 02 August 2014, 05:30 AM
catty5nutz catty5nutz is offline
 
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So legal complications aside, what is the right thing for this little boy? Can his genetic parents be made to made to step up, and at least provide financial support for him? I realise that international law must make this extremely complicated.

Should he be brought to Australia, where treatment for his heart condition and any other medical concerns his condition might cause can be more easily treated? And, where, considering the publicity, he would probably soon be adopted?

OTOH should he be parted from the only mother and family he has ever known? Should the woman who gave birth to him keep him? And should the money that has been raised for his medical care be put into a fund, to be used for his future medical treatment and education in Thailand? Could he travel to Australia in the future with Pattharamon Janbua for medical treatment. I could argue that if Gammy stays in Thailand, he will be growing up with an ethnicity and culture foreign to his own. But, westerners have been adopting children from Thailand and other countries for years, and bringing them up as westerners in cultures where they are a decided minority. What is the difference? Is poverty a valid reason to separate a baby from the only mother he has known?

No easy answers..

And that is if he survives the lung infection that has put him in hospital.
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  #13  
Old 03 August 2014, 02:22 PM
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Baby Gammy has now been moved to an advanced medical facility and is receiving specialist care after an online fundraising campaign raised $190,000 for his treatment

http://www.9news.com.au/World/2014/0...o-new-hospital
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  #14  
Old 03 August 2014, 04:59 PM
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Legalities aside, I think that the intended parents should pay child support if the surrogate wants to keep Gammy. If she does not, then a suitable adoptive placement should be found, possibly in Australia. It will be important to find a way to construct a narrative of how he came to be, and what his genetic origin is, that he will be able to understand. (It's important for these things not to be secrets, for the child to always know--appropriate to their comprehension and development--the story of their origins.)

Back to legalities for a second: I wonder if Gammy is an Australian citizen. If so, I wonder if he and his mother could (if she is willing) move to Australia. Also, when Australians are out of the country, do they need to purchase private health insurance, or is some form of government reimbursement available? (I assume the former.) At any rate, I think that Gammy is either the child of the Australian couple, and has been abandoned by them, or that he is the child of the surrogate and the Australian man, and has been abandoned by him. Either way, there's an obligation there, and a connection to Australia.
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  #15  
Old 04 August 2014, 01:26 AM
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Of all the very very very wrong things attached to this situation the worst i find are represented in this comment left on the a news website:

Quote:
When the story first broke, I was horrified to learn that the Australian parents had 'abandoned' the second child.

However, now that more details have emerged and we have learned that the Australian parents wanted to have the disabled foetus aborted, my horror is no longer toward them but to the Thai woman who entered into a contract to carry the foetuses.

By entering into the contract and being paid, the Thai surrogate's body becomes that of the Australian mother for nine months. She should have had the foetus aborted when the Australian mother requested it as it was not her decision to make otherwise.

Whether one holds a belief for or against abortion, a contract is a contract and it is quite clear that the disabled baby now becomes the Thai surrogate's responsibility.
Italics mine

Yikes!

Dropbear

Link
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  #16  
Old 04 August 2014, 01:38 AM
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Wow. When I read that they had told her to abort him but she didn't, I wondered if that would bring out the sort of men's rights people who claim that if a man tells a woman who is pregnant with his fetus to get an abortion, and she doesn't, then he should no longer be legally responsible for the child if she chooses to have it.

And just on a factual accuracy note, I mentioned above that I wondered what the contract provisions were for multiple pregnancies, birth defects, selective reduction, and abortion. The commenter obviously doesn't know those terms either. I very seriously doubt that the couple had a right to force her to get an abortion or selective reduction against her will. And the contract sounds so exploitive that I really feel sort of disgusted even talking about it. It's possible that it did make that sort of thing up to the couple, but I don't think those provisions would be enforceable in US or Australian courts, and I hope they wouldn't be in Thai courts.
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Old 04 August 2014, 05:56 AM
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I don't think abortion is even legal in Thailand in the case of fetal abnormalities. Link.
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  #18  
Old 04 August 2014, 07:35 AM
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Being curious, I did a quick look Google of Buddhism and abortion. As you might expect from a faith that tends to hold life as sacred, they are generally against it.

However, even the Dalai Llama has come out saying that occasionally there might be a case for abortion.


Quote:
Of course, abortion, from a Buddhist viewpoint, is an act of killing and is negative, generally speaking. But it depends on the circumstances.

If the unborn child will be retarded or if the birth will create serious problems for the parent, these are cases where there can be an exception. I think abortion should be approved or disapproved according to each circumstance.


Dalai Lama, New York Times, 28/11/1993

http://www.bbc.co.uk/religion/religi...abortion.shtml

This is all purely academic at this point, of course. This child is very much alive and in the world, and his welfare is the most important thing.

Last edited by catty5nutz; 04 August 2014 at 07:41 AM.
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  #19  
Old 04 August 2014, 11:15 AM
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And it gets even more interesting:

The parents of baby Gammy have told local media that they only knew about his healthy twin sister.


But the surrogate said the father visited the twins in the hospital.

Ms Chanbua has claimed that she was asked by the couple to have an abortion once they knew about Gammy's condition. But she refused as it was against her Buddhist beliefs.


and


The parents reportedly told Channel 9 that they had a daughter of Gammy's age but she did not have a brother.

and

The unnamed couple, who live south of Perth, also denied any knowledge of a son to the Australian Broadcasting Corporation.

http://www.bbc.com/news/world-asia-28636126
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  #20  
Old 04 August 2014, 11:22 AM
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Yeah there's two very very different stories being told here. At this point no one who isn't directly involved has any way of knowing what the actual truth of the matter might be but I'm having a really hard time believing that the parents would never have heard anything about a second child at any point.
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