Thailand Law Journal 2013 Fall Issue 1 Volume 16

Choosing a "Good" Commissioning Couple According to participants, negotiations proceeded in specific steps. After posting a message on a web board, prospective surrogates received contacts from interested couples via email or telephone. (The number of enquires received by participants in this study ranged from several to 20.) Surrogates and couples may agree to meet in person. Although several prospective surrogates were contacted by a brokering agency based abroad, the vast majority of intended parents who made enquiries were from within the country. Arunwan stated that she had refused one surrogacy agreement because the Thai intended parents wanted her to live with them during pregnancy and then feed the
baby. Although she was offered 600,000 baht when she delivered twin babies, she did not leave Bangkok.

During negotiations, agreement is reached over such issues as how much money will be paid for a single or twin delivery. From the prospective surrogate's point of view, a transaction should not be too "business-like", and intended couples should be sympathetic. Eakarapong stated that she would agree to reduce the price if the intended parents were not rich because "they
have paid a lot of money for infertility treatment." However, she added, "I would not agree to a discount if the intended mother asked me to be a surrogate due to fears about losing her figure." Nattaporn, who had already completed a round of surrogacy and was looking for another commissioning couple, also stated; "the important thing is how much they can protect me,
how much they care. That is more important than money."

A few women noted that they expected special treatment and protection by expectant mothers during pregnancy. Natthakarn, who already had surrogacy experience, stated: "I was given an apartment close to the intended parent's house. They often communicated with me. I was cared for and felt safe when I lived near their house." Satorn, who was single but wished to get pregnant for others, was expecting to receive special treatment from a rich childless couple in exchange for delivering their child. She stated: "My commissioning couple is very rich. They run a company that I have visited several times.

They are so kind and friendly. When I succeed in getting pregnant, I will be given an apartment close to the intended parents' house. The intended mother often communicates with me by phone. I will be able to get healthcare and feel safe when I live near their house during the pregnancy." To become a surrogate was seen as a means to forge a lasting personal relationship with a commissioning couple who were richer and belong to a higher social stratum.

Similarly, several other prospective surrogates expected that their compassion in helping an infertile couple would be reciprocated not only by monetary payment but by special treatment during pregnancy and after the delivery. In short, surrogacy cannot be treated like a commercial service, and a surrogate mother's willingness to help should be met by a commissioning couple's eagerness to care for, protect, and provide needed benefits to a surrogate mother.

IV. Discussion

After describing the major findings of our study, we discuss them in the context of the results of other studies, conducted in the US, Israel, and India, countries that contain more established commercial surrogacy programmes. The regular involvement of a third party in the form of an egg donor or a surrogate mother has been accompanied by the commercialisation of the process of third-party assisted procreation and "commodification" of female bodies. The commercialisation of human reproduction has taken on a global dimension with the spread of in vitro fertilisation (IVF) facilities and technical expertise around the globe. The fact that Thailand is not totally immune to this trend is clearly exemplified by messages posted on internet forums offering
"eggs for sale" or "wombs for rent." Commodification of female bodies occurs at the juncture of the development of information technology and the dissemination of access to cyberspace on the one hand, and the spreading of ARTs on the other hand. Because Thailand is known for its flourishing sex industry, in which poor women's bodies are commodified to fulfil the desires
of domestic and foreign men, ARTs may serve as a medium through which Thai women are exploited and their body parts are alienated from them for distribution in local and global markets (Van Esterik 1990). In this view, surrogacy is yet another form of the commodification of the female body, and it is attributable to the procreative desire of both men and women.

However, such a view can be an oversimplification. A common image of commercial surrogacy is that the "unnatural" practice of becoming pregnant to turn the child over to another parent could only be made as a "desperate choice." That is, a stereotype of a surrogate mother is that they are women "compelled" by poverty and destitution. For example, based on a commonly
drawn analogy between prostitution and surrogacy, Tong stated: "Most surrogate mothers, like most prostitutes, are much poorer than the people to whom they sell their services. Unable to get a decent job, a woman may be driven to sell her body if it is the only thing she has that anyone seems to value enough to buy"(Tong 1997: 200–1). Our interviews suggest that this view is not unanimously held (see also Teman 2008).

The prospective surrogate mothers we interviewed were certainly poorer than the intended parents with whom they negotiated, and some interviewees referred to the pressing financial needs of their families as a reason for becoming a surrogate; pressing financial needs arose from divorce, underpayment, and other reasons. However, as more than half the participants were college or junior college graduates (eight of 15), not all prospective surrogate mothers interviewed belonged to a lower social stratum. Many of the interviewees were employed or had been employed. This finding should be compared with data from India, where the vast majority of surrogate mothers are from households with incomes below the poverty line (Pande 2010). The prospective surrogates we interviewed had regular access to the internet, which poorer Thai women do not.

We must identify relevant social and cultural motivations other than "economic" concerns to fully understand why women enter into surrogacy arrangements. In this regard, a tentative conclusion that can be drawn from our results is that the cultural norm determining a woman's social role as wife, mother, and daughter has a significant effect on a woman's decision to become a surrogate mother. Notably, wanting to help their parents was often mentioned by our participants as a reason for becoming a surrogate, and this harkens back to the cultural significance of the role of women in the Cognatic kinship system in Thai society. The filial duty, conceived as repayment of a debt incurred by being born and nourished, is imposed on children of both
sexes, but daughters are expected to take a more active role in caring for ageing parents than are sons. This gender role is reinforced by a popular Buddhist notion that a son can and should repay debt by becoming a monk, as offering a son to Sangha is one of the most significant merit-making acts for parents (Van Esterik 1982: 77; Keyes 1984: 227–30). Our interviewee's statements suggested that surrogacy is often linked with this gender role of women as daughters. From a comparative perspective, the Indian surrogates described by Pande and Vora, the Israeli surrogates described by Teman, and the American surrogates described by Ragone did not mention a desire to help their parents as a reason for becoming a surrogate as frequently as did the Thai surrogates in our study. Another cultural factor that motivated a woman who had had
an abortion to become a surrogate was tan-bun (merit-making). One study found that one-third of surrogate mothers had experienced abortion and this led to the suggestion that reparation for having aborted a foetus may be an explicit or implicit motivation for becoming a surrogate mother. This observation implicates surrogacy as a gender issue across borders.

Notably, the social form and process of "message board surrogacy" allows room for a woman to derive various benefits from the surrogacy experience. They can choose for whom they provide gestational services and with whom they actively negotiate the arrangement rather than passively accept an intended parent and a fixed price set by a third party. This is supported
by Thai Civil and Commercial Codes that recognise the birth mother as the legal mother and hold that any contract regarding surrogacy is not legally enforceable.