Cambodian surrogacy law due in 2018, but legality still uncertain

UN Special Rapporteur Rhona Smith at the Justice Ministry meeting yesterday in Phnom Penh. Photo supplied

Fri, 11 August 2017

Kong Meta

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A long-awaited law on surrogacy will be introduced next year, with a first draft already completed, according to the Ministry of Women’s Affairs and UN Special Rapporteur Rhona Smith, yet officials yesterday said no decision had been made on whether the contentious practice would be made illegal or not.

The news comes a week after the sentencing of Australian nurse Tammy Davis-Charles and her two Cambodian associates, Samrith Chakriya and Penh Rithy, to 18 months in prison for their role in facilitating surrogate pregnancies for foreign couples desperate for children.

In the absence of a surrogacy law, the trio were controversially charged with being intermediaries between a pregnant woman and adoptive parents, and for fraudulently obtaining documents, like birth certificates.

UN Special Rapporteur Rhona Smith last October – the same month surrogacy was suddenly banned in a Ministry of Health directive – promised to offer input into the nascent legislation. Her research, in the form of a concept note, was delivered to the Ministry of Justice, spokesman Chin Malin said yesterday.

“The concept paper analyses the universal practices and principles and international practices for the respect for human rights, and whether Cambodia should follow which angle,” Malin said.

“We have checked on that research for knowledge while we are drafting [the law], and she will continuously support the team.”

In an email yesterday, Smith said that “surrogacy arrangements become a human rights issue when the rights of the women, children and parents are not fully respected and protected”.

“The rights of any child born from surrogacy arrangements do engage the Convention on the Rights of the Child,” she said.

“It is hoped that this law will protect Cambodian women from exploitation and ensure that the rights of any children born through surrogacy are protected.”

Although officials previously said the law would likely not come into effect until after the July 2018 national elections, Phon Puthborey from the Ministry of Women’s Affairs said he expected the law to be complete in “early 2018”.

“We already finished the zero draft . . . now we have the skeleton of the law,” he said, saying the draft had been sent to various ministries, who would meet next month to discuss feedback.

“This is just our expectation, for early 2018. But we are not sure whether we could do it because it’s a complex issue . . . so for now, with our framework, commercial surrogacy is illegal.”