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Surrogacy: The law of unintended consequences?

As the issue of surrogacy returns to the legislative agenda after a lengthy hiatus, we consider how the law could have undesired consequences if lawmakers don’t take a holistic approach to the new law.

As it stands, commercial surrogacy has been banned in Cambodia since 2016 under a Ministry of Health prakas. The measures were hastily brought in as the government responded to a number of high-profile controversies involving women surrogates working for overseas clients. The criminal conviction of dozens of surrogates under the Cambodia’s anti-human trafficking law followed, as the government cracked down on the practice – largely under the premise of protecting the rights of children.

A specific law intended to ban the practice of commercial surrogacy was tabled, but later shelved as the government focused on the COVID-19 pandemic. As Cambodia moves out of the pandemic, the draft law has returned and looks likely to be promulgated sooner rather than later. At this crucial juncture, it is essential that legislators consider the intersectional issues associated with surrogacy.

While the aim of preventing trafficking in people and protecting the rights of children is a legitimate and admirable aim, what do these kinds of protectionist strategies tell us about the level of bodily autonomy afforded to Khmer women living in poverty? Is not all physical labour entered into with informed consent, while often far from ideal – backbreaking construction work, for example – a legitimate form of work? What is arguably more appropriate than abolition and criminalisation is to thoroughly regulate surrogacy practices via the foundation of a clear legal framework, one ensuring that women acting as surrogates are protected from exploitation and the rights of all parties are understood and protected. This has been recognised by the United Nations Special Rapporteur for Cambodia, who said, “The situation requires careful monitoring to ensure that the rights of vulnerable women are protected.” Under the new law, international surrogacy is likely to remain banned but domestic surrogacy might be permitted in certain “altruistic” circumstances. A number of recent statements issues by government spokespeople have made derogatory references to the previously convicted surrogates, suggesting they were flawed parents motivated only by money. Cambodia now has an opportunity to pass a world-leading law on the practice that properly regulates surrogacy, whilst also protecting the rights of the women who are surrogates. It is vital that the draft law is opened up for consultation so that a diverse range of voices can contribute to the development of truly intersectional legislation that is fit for purpose.

Without those voices, there is a genuine risk that new measures could fail in its mandate to protect rights and individuals, instead worsening the situation for women in Cambodia through a battery of legislative weapons targeted specifically at women.

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