What will a crackdown on Thailand's surrogacy laws mean for the babies who aren't born yet?

If the Thai government cracks down on surrogacy, will Australian parents be forced to abandon their babies?

That’s the question many nervous parents and observers are asking as the story of baby Gammy continues.

Last night ABC’s 7.30 Report dug deeper into the international storm surrounding Baby Gammy – and commercial surrogacy laws, both in Australia and overseas.

Seven-month-old Gammy – who has Down syndrome and a hole in his heart – was left behind in Thailand by his Australian parents, even though they decided to take his twin sister back to Western Australia with them.

Gammy’s story has captured the world’s attention, but the situation has also thrown an international spotlight onto the laws surrounding commercial surrogacy.

ABC Bangkok correspondent Samantha Hawley spoke to a former surrogacy agency worker, about the confusion that surrounded Gammy’s birth.

“It was just, just nobody don’t know what to do. And then, like, let’s say if they decide to abort one baby, then what about the other one?” she explained.

“We just couldn’t find a solution. We just don’t know if this happened and what we are going to do; if this happened, what we are going to do. Until the surrogate came up with the solution [of keeping Gammy]. We just, like, I was very impressed with her solution.”

After Thai surrogacy laws changed this week, there are also concerns about women who may already be pregnant as surrogates in Thailand – and what might happen to the babies.

The Daily Mail reported,”The babies of desperate Australians who are using surrogate mothers in Thailand could end up being put into orphanages after Thai surrogacy laws changed this week, a lawyer has warned. Australians using surrogates in Thailand could also be prosecuted for human trafficking under the new laws that ban surrogacy if the prospective parents aren’t blood relatives.”

Lawyer Stephen Page told the Daily Mail, “I’ve been contacted by parents who can’t contact the surrogate parents midway through pregnancy. They can’t find out whether their baby or the mother is OK.”

“It’s a disaster how the Thai government have announced it.”

Page also condemned Australian surrogacy laws in Australia, saying the only reason people went overseas was because the laws in Australia are so restrictive. Most Australian states only permit unpaid surrogacy agreements – and in NSW, Queensland and the ACT is it actually illegal to pay an overseas surrogate.

“The laws here makes it almost impossible. You can’t advertise, you can’t get an egg donor. Some people have waited seven years,” Mr Page said.

Page called on the Australian government to take steps to ensure that hopeful parents who already have a woman carrying their child overseas, will be able to bring their child back to Australia. “’What I would hate to see is these babies stuck in a Thai orphanage or people prosecuted for child trafficking offences for something that has been legal for years,” he said.

International surrogacy law expert Jenni Millbank told the ABC that the Gammy case and changes to the law could affect mid-term surrogacies – or even have the result of driving commercial surrogacy ‘underground’, which would lead to less oversight and transparency in the process.

“… Criminal prohibitions like that don’t help anybody,” Millbank explained. “They basically drive evasion. They drive secrecy. They mean that people are paying money to brokers. They’re not telling the truth to their health practitioners. They’re not telling the truth to government authorities or maybe even to their children. And I think it drives practice underground and it’s really counterproductive in the long run.”

“And certainly I think there are many parents, intended parents in Thailand right now, who would be very concerned about whether or not they can bring their children home.”

As more information about the parents of Gammy have come to light, the idea that commercial surrogacy might become a ‘black market’ seems especially dangerous.

Stephen Page also spoke to the ABC about surrogacy laws, and revealed, “Thailand hasn’t had any law on surrogacy at all. So therefore no law concerning background checks. They just, it hasn’t existed.”

Even in Australia, background checks are not usually required for unpaid surrogacy agreements.

Page told the ABC, “Victoria requires a criminal check and child safety check to be undertaken. It’s not mandatory in other places. But what’s required with surrogacy, whatever state you go in, is that you must have judicial oversight. At the end of the day, you need a judge to approve the surrogacy arrangement as being in the best interests of the child.”

Prime Minister Tony Abbott has said that making changes to surrogacy laws in Australia – in regards to how parents are organising surrogates overseas – is not a priority.

The Prime Minister told Channel Seven, ”I am not someone who naturally wants the Commonwealth to be jumping all over things that are state responsibilities.”

”The difficulty with the law in a situation like this is that the law can often make complex, difficult and very personal situations worse and so I am in no hurry to rush legislatively into this particular situation,” he continued.

“’It seems that this may be a legal issue in Thailand as well, and my advice to people is don’t do anything that’s illegal.”

Do you think surrogacy laws need to be changed in Australia? Should surrogacy in Australia be easier? Should international surrogacy be more closer monitored?

Want to read more about Gammy? Try these:

Read more on the Australian couple’s statement here.

Mia Freedman writes: Could this be the real reason why Gammy’s parents abandoned him?

Updates on the Gammy story: Calls for the boy to receive an Australian passport, calls for surrogacy law reform and more.

Response from a parent of a child with Down Syndrome: To the Australian couple who abandoned their son with Down syndrome. 

Mamamia’s first report on Gammy: The surrogate child an Australian couple didn’t want.