Fathers of Surrogate Babies Need DNA Proof

Foreign parents of surrogate babies born to Cambodian mothers must provide courts with legal proof of a biological link through DNA testing before they will be allowed to take their children out of the country under a new exit strategy for surrogate babies, an official said on Tuesday.

Chou Bun Eng, secretary of state with the Interior Ministry and vice chair of the national committee to combat human trafficking, gave further details on Tuesday of the procedures for parents to leave Cambodia with babies born to surrogates. The details followed Prime Minister Hun Sen’s approval of the plan, nearly six months after the Health Ministry banned commercial surrogacy.

In lieu of official procedures, some of the dozens of foreign couples stranded in the country since October have been trying to get their babies home by transporting them through Vietnam, an industry expert has said.

Couples whose babies were conceived by Cambodian surrogates will need to submit formal applications to their embassies, which will then process documents for the Foreign Affairs Ministry, Ms. Bun Eng said. The documents, including a DNA test certificate and paperwork that establishes the child’s legal status, will then be presented to the courts.

“Those who want to take the babies born through surrogate pregnancies need to submit an application in order to request to take the baby in accordance with Cambodian law,” she said.

The legal procedures will certify that the foreign biological father has the right to raise the child, she said. Foreign couples will also need to prove that they have the ability to take care of any babies that are being taken out of Cambodia. Details of how to meet those requirements have not been released.

Cambodia’s Civil Code currently recognizes the woman who carries a baby as its mother, regardless of the biological parents. When the surrogate mother is married, her husband is considered to be the baby’s father, adding another layer of complexity.

Ms. Bun Eng said the biological father would need to go to court to prove paternity.

“If the foreign man says that he has matching DNA, he has to bring it to court in order to demand his rights as a father, and the father who has the rights according to the law [i.e. the surrogate’s husband] has to deny, or agree to coordinate to make it right according to the law,” she said.

Ms. Bun Eng was not able to confirm when the exit strategy would officially take effect. She previously said it would be this week.

Foreign Affairs Ministry spokesman Chum Sounry and Chin Malin, spokesman for the Justice Ministry, could not be reached on Tuesday.

On Sunday, Ms. Bun Eng said the strategy would apply to babies already born as well as to fetuses being carried by Cambodian women, and would run for a limited time. “We think that we will finish implementing it in nine months and 10 days after the announcement,” she said.

On Tuesday, Ms. Bun Eng said the strategy was needed to prevent any legal issues from arising in the future.

In other countries, surrogate mothers must sign over maternal rights to the biological parent or parents, making them the legal parents and ensuring that she cannot attempt to gain custody of the child in the future.

The exit strategy could also cover surrogate babies that have been taken out of the country since commercial surrogacy was banned in October. Among the nationalities known to have used Cambodian surrogates are Australian, Chinese and U.S. citizens.

David Josar, deputy spokesman for the U.S. Embassy in Phnom Penh, on Tuesday confirmed in an email that the embassy was assisting “a small number” of U.S. citizens who conceived children through surrogates in Cambodia before the ban.

The Australian Embassy in Phnom Penh did not respond to emailed questions.

Stephen Page, an Australian lawyer who specializes in surrogacy, said it was understandable that some foreign couples had chosen to take matters into their own hands and pass through Vietnam to return home with their child.

“The government allowed surrogacy to thrive in Cambodia, and then in cracking down has victimised the surrogates, and in the process put the welfare of the children at risk,” Mr. Page said in an email.

“It could have handled the process of change to allow the children to travel to the countries of the intended parents—as happened in India, Nepal and Thailand. The government chose not to take that course.”

“What is required to have surrogacy undertaken anywhere is a legal framework with certainty. This does still not exist in Cambodia. In the circumstances, I can understand intended parents wanting to take the babies to Vietnam now,” he said.

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