When Nicholas crossed the border to Vietnam with his baby in February, he sat on the opposite side of the bus. To the other passengers heading to Ho Chi Minh City, he was every bit a stranger to the 3-month-old girl a Cambodian woman cradled nearby.
A surrogate mother, the woman had carried the baby for nine months and given birth in Phnom Penh. In the weeks after, she had been paid the final fee for her services and signed the paperwork giving up her maternal rights. She was about to give up the baby.
For the American on the bus, months of frustration, of changing government surrogacy policies, of bribes and disappointment neared an end. One immigration checkpoint stood in the way of him taking his child home.
Cambodia banned commercial surrogacy in October, throwing into disarray a nascent, unregulated industry that had grown quickly as one country after another had shut down such businesses. At one point, industry experts estimated that up to 50 surrogacy providers and brokers were operating in Cambodia.
A month after the government announced the ban, describing the practice as a form of human trafficking, an Australian surrogacy clinic owner and her two Cambodian colleagues were arrested.
Six months later, the government has still not issued a comprehensive set of guidelines on how parents of surrogate babies can legally take their children out of Cambodia, leaving many contemplating alternatives outside the law.
It is not even clear how many would-be parents are affected by the ban, though experts suggest they number in the dozens.
Nicholas and his partner are among several couples who sought to smuggle their babies out of Cambodia, according to Nicholas’ father, who spoke on his son’s behalf. They all asked not to be identified by their real names out of fear of legal reprisals.
In telephone interviews and via email, he described several tumultuous months that followed the implementation of the ban. With no clear instructions from the Interior Ministry, and speculation that it could take months to receive such guidance, foreign couples with newborns or surrogate babies on the way became desperate.
Nicholas and his partner sought help from the U.S. Embassy in early November, which, at that time, had no concrete information about the ban. The embassy was “under the opinion that something is happening but nobody knows what, because we were still not shown the country’s law,” Nicholas’ father said. “Nothing’s written as far as the law is concerned—it’s just a verbal order.”
The uncertainty has led at least four families—three from the U.S. and one from Germany—to ignore the government’s demand that foreign parents and surrogates turn themselves in, and take matters into their own hands.
Nicholas, for his part, tried to work with the Cambodian government—and was sent from one ministry to another in search of information, his father said.
He obtained a DNA test at the U.S. Embassy, which proved his paternity, while the surrogate mother officially waived her rights to the child at the embassy, which then issued the child a U.S. passport, his father said.
Because the child was conceived using another Cambodian woman’s egg, she was also entitled to a Cambodian passport. Nicholas took the positive DNA test and surrogate’s waiver to the immigration department with his baby’s Cambodian birth certificate, seeking their help.
“Every time they went out to the government offices, they identified themselves. They showed them the paperwork in English and Khmer, with the letter from the mother terminating her rights…but they just get sent from office to office, like, ‘nope, that is not our job, go to this office,’” Nicholas’ father said.
“They were going to the immigration office, the Ministry of Interior office; they were all over the place.”
Nicholas and his partner eventually met a tuk-tuk driver who offered the same-sex couple help getting their daughter a Cambodian passport, his father said.
“He wanted to do it legally and then he found a person through a tuk-tuk driver, who is some sort of broker, who took him and his partner to the immigration office and passport office,” he said.
They also talked to a Cambodian lawyer, who told them she could get them a passport for the baby and surrogate mother at a cost of $650 each. Their nanny, who had been employed to look after the baby for the last month they were in the country, also said she could “take care of it for $3,500. There is quite a black market for this stuff there,” Nicholas’ father said.
In the end, the couple asked the broker to help. The Cambodian passports for the baby and surrogate mother were ready in two days, for which they paid the broker $600.
The fee for a Cambodian passport valid for 10 years is $100 and $80 for a child under 5, valid for five years, through official routes, according to rates released by the Interior Ministry in 2015.
Nicholas and his partner arrived in Cambodia in November, after the surrogacy company they used abandoned their surrogate mother and left the country amid the chaos of the ban.
Their daughter was born in December in Phnom Penh’s Central Hospital, but it took until early February for them to decide to sneak her out via Vietnam.
“They needed to get back to the States,” said Nicholas’ father, who added he traveled back and forth with his wife several times in an effort to help. “They have jobs…they spent a lot of money in Cambodia and they had to go back to their work and they have a house to take care of.”
Crossing into Vietnam was easy. No questions were asked. Once the group was safely out of the country, Nicholas and his partner said goodbye to the surrogate mother—who handed over the baby and took a bus back to Phnom Penh—and flew home to the U.S. via Taiwan, using their daughter’s U.S. passport.
According to Nicholas’ father, another U.S. couple took their baby out by the same route, while two other couples, from the U.S. and Germany, respectively, flew to Singapore and then on to their home countries.
While Nicholas’ father did not reveal how much his son and his partner spent to become parents, previous reports have said the agencies routinely charged $50,000 for their services. The egg donor is also paid.
As the surrogacy saga dragged on, other parents found other ways to get their babies out of Cambodia.
A Chinese man who recently returned home with his surrogate-born twins said he resorted to bribing Cambodian officials.
“I used some tricky way, of course, expensive ways to bribe the officer who hold the authority to certify the documents, which were crucial for us,” he said in an email, speaking under condition of anonymity because he also feared legal reprisals. He did not elaborate on the bribes, or on any other details relating to his departure.
“I was really disappointed with the whole process and the people there,” he said.
“Every step was quite difficult for us.”
The measures parents have taken to sidestep the government are understandable, said Stephen Page, an Australian lawyer who specializes in surrogacy.
“Given the arrests that have occurred, and the conflicting statements by the government, foreign intended parents do not trust the government,” he said in an email last month.
“Their fear [is] that they or their surrogate will be jailed, or that their baby will be removed.”
Mr. Page said the government should have taken a more measured response to the industry, rather than a knee-jerk reaction in which everything was shut down at once.
“The first thing it ought to have done was not to have ignored the fact that surrogacy was happening in Cambodia. If it had signalled at that stage that it was not prepared to tolerate surrogacy…then surrogacy in Cambodia would have gone nowhere,” he said.
“Instead, the government was asleep at the wheel. Like a fatigued driver it has woken up, realised it was going to crash, and has panicked, and over-corrected,” he said, citing similar reactions in India, Nepal, Thailand and Mexico, where surrogacy has also been banned.
Laos has now become one of the new surrogacy hotspots in the region, as neighboring countries shut down the industry.
After The Cambodia Daily reported on April 3 that foreign couples were taking babies out through Vietnam, officials met last week with concerned ministries—including the Interior Ministry’s general department of immigration and the justice foreign affairs ministries—and announced more restrictive border controls.
Chou Bun Eng, a secretary of state at the Interior Ministry and vice chair of the national committee to combat human trafficking, said foreign couples found trying to take Cambodian surrogate-born babies out of the country without the government’s approval risked being charged under anti-trafficking laws.
“If they do this, those who take the babies out this way, they have to be held responsible before the law,” she said last week.
However, in another phone interview a day later, Ms. Bun Eng clarified her previous statement, and said that anyone arrested who could prove they are the biological parents of the baby would not face charges.
Instead, she said, they would be required to go through the recently announced exit process that the government outlined two weeks ago.
“Right now, if we caught them, we would tell them to come back to fill out the applications before they can leave,” she said.
The exit strategy requires foreign parents go through Cambodia’s court system to prove paternal rights and receive required documents.
Instead, according to Nicholas’ father, some foreign couples continued to get help from their governments, receiving passports for the babies through their embassies.
The U.S. Embassy would only say in an email on April 12 that they “routinely assist American parents in obtaining various documents for their children” as part of their consular services, but declined to elaborate “due to privacy laws.”
In an email dated April 4, David Josar, deputy spokesman for the embassy, said that they were “assisting a small number of U.S. citizens who conceived children through surrogates in Cambodia before the ban.”
The Australian Embassy said in an email early last month that it had “been providing consular assistance to a small number of Australian families with children born through surrogacy arrangements, in accordance with the Consular Services Charter.”
Meanwhile, an estimated 50 Australian couples are still waiting for their Cambodian surrogate mothers to give birth to their babies, according to Sam Everingham, director of Australia-based advocacy group Families Through Surrogacy.
He said many foreigners had moved their surrogates to Thailand to give birth, though he believed the Cambodian government could be trusted with guaranteeing a safe exit.
“There is no reason not to trust the Cambodian government’s assurances regarding exit. The government has put great thought into achieving a humane outcome,” he said.
For Nicholas and his partner, trusting the government was not an option, according to his father.
“Now that they are back in the States, they want to forget the entire experience with dealing with your corrupt government and our incompetent embassy,” he said.