Legal Aspects & Altruistic Surrogacy Arrangements in Cambodia
The practice of Surrogacy has been part of the Cambodian society for many centuries. After the Thai government banned Surrogacy in Thailand, Cambodia has emmerged as the leading destination for Surrogacy in South East Asia. We have had more than 7 pregnancies since 2014 and were one of the 1st agencies that set foot in Cambodia.
Presently, you will find absolutely no laws that governs surrogacy arrangements as such in Cambodia. Here below, is a explaination and clarification about the confusion that exists in Cambodia regarding Surrogacy vs the adoption process under the Cambodian Criminal Laws.
Based on the fact and to the best of our knowledge, the “law” is open to interpretation to a large degree. It must be clearly stated that Cambodia has yet to enact any laws surrounding Surrogacy per se. As a matter of fact, our research indicates the following:
Article 332 of Cambodian Criminal Code
Based on our review of the current Cambodian Criminal Code, the letter of the law in Article 332 specifically refers to, “intermediary between an adoptive parent and a pregnant women”. The central point in this clause to be noted is, “adoptive parents”. And there is a difference between, “adoptive parents” and “intended parents” through surrogacy. By definition, adoption is a process in which a person assumes legal custody and parental rights over another child usually from that person’s biological or legal parent(s) and this permanently transfers
all rights and responsibilities from the biological or legal parent(s). Also, the Article is intended to address the problem of human trafficking, rather than the intended parents that work with a surrogate mother to gestationally carry their child. The current Cambodian law specifically applies to any intermediary who may be facilitating human trafficking. It also prohibits the third party intermediary from delivering a child from one party to another.
Further, Article 333 acts of Substitution Simulation and Concealment of a child’s existence does not relate to surrogacy either. Firstly, the only substitution in the surrogacy process is the surrogate mother. The surrogate mother gives birth to the child of the intended parents. This article clearly addresses the substitution of a child, not mother. Every child born through surrogacy is reported to the government for the purpose of receiving a Cambodian birth certificate. Children born through surrogacy are not concealed, as their birth is on public record.
Based on Cambodian family law, if the couple is not married, the father has equal parental rights with the mother if he is the legitimate father of the child.
In regards to issuing any formal guarantee that all Australian Intended Parents can utilize FCC surrogacy-related services in Cambodia and enjoy 100% unencumbered Citizenship and Exit Procedures for their child born of surrogacy, neither us nor any other company or legal firm can deliver such a statement in good conscience.
Every case, surrogacy-related or otherwise can hold unforeseen issues that even the best legal firms cannot anticipate. However, to avoid possible ramifications from any potential enforcement of the most recent information listed on the Australian Embassy Cambodia website, we can express our firm position based on expert legal opinion and research.
For a smooth, legal and hassle free process we would obviously need to take care of certain legal aspects. These include the following documents:
1. Completed Intended Parent application form,
2. Mutual Contract between Parents & Agency, and
3. Memorandum of Intent between Parents & the Surrogate Mother. ( also known as a Surrogacy Agreement)
While putting together the start to end scope of services and related professional fees is quite straight forward (refer below). As things presently stand, noting that some of the legal work outlined below depends on whether the surrogacy is for heterosexual or same sex couples, or for a single parent… the typical requirements would be as follows:
- A legally binding Altrustic agreement between the surrogate mother in accordance with
- A legally binding agreement between the donor and the clinic that is providing the medical care to the surrogate mother.
- A legally binding agreement between the donor and the Surrogate.
- Apply for a Birth Certificate.
- Obtain a Court ruling to establish donor as the legitimate father and/ or mother (however applicable).
- Consult with the local relevant donor’s Embassy and apply/register the baby as a citizen and obtain the passport rider or actual passport (however applicable).
- Child adoption by donor’s partner (option only available for heterosexual couples) – presently for same sex couples, if the non-donating partner wishes to adopt the baby, then the process will be easier and work better in the home country.
Estimated Time Frames
||3-4 working days after birth.
||12-16 weeks after birth.
|Passport (country dependent):
||2-14 working days after birth.