In Cambodia’s weak legal system, surrogacy exists in a gray market, endangering all involved when political conditions suddenly shift and criminal charges follow.
PHNOM PENH, Cambodia — The baby was not hers, not really.
Hun Daneth felt that, counted on that. When she gave birth to the boy, who didn’t look like her, she knew it even more.
But four years after acting as a surrogate for a Chinese businessman, who said he had used a Russian egg donor, Ms. Hun Daneth is being forced by the Cambodian courts to raise the little boy or risk going to jail. The businessman is in prison over the surrogacy, his appeal denied in June.
Even as she dealt with the shock of raising the baby, Ms. Hun Daneth dutifully changed his diapers. Over the months and years, she found herself hugging and kissing him, cajoling him to eat more rice so he could grow big and strong. She has come to see this child as her own.
“I love him so much,” said Ms. Hun Daneth, who is looking after the boy with her husband.
The fates of a Cambodian woman, a Chinese man and the boy who binds them together reflect the intricate ethical dilemmas posed by the global surrogacy industry. The practice is legal — and often prohibitively expensive — in some countries, while others have outlawed it. Still other nations with weak legal systems, like Cambodia, have allowed gray markets to operate, endangering those involved when political conditions suddenly shift and criminal cases follow.
When carried out transparently with safeguards in place, supporters say, commercial surrogacy allows people to expand their families while fairly compensating the women who give birth to the children. Done badly, the process can lead to the abuse of vulnerable people, whether the surrogates or the intended parents.
The practice flourishes in the nebulous space between those who can and cannot bear children; between those with the means to hire someone to bear their biological offspring and the women who need the money; and between those whose sexuality or marital status means they can’t adopt or otherwise become parents and those whose fertility spares them having to face such restrictions.
Cambodia became a popular surrogacy destination after crackdowns in other Asian countries nearly a decade ago. Foreigners flocked to newly opened fertility clinics and surrogacy agencies in Phnom Penh, the capital.
As the industry flourished, the government imposed a ban on surrogacy, promising to pass legislation officially outlawing it. The ill-defined injunction, imposed in a graft-ridden country with little rule of law, ended up punishing the very women the government had vowed to safeguard.
In 2018, Ms. Hun Daneth was one of about 30 surrogates, all pregnant, who were nabbed in a police raid on an upmarket housing complex in Phnom Penh. Although Cambodia to this day has no law specifically limiting surrogacy, the government criminalized the practice by using existing laws against human trafficking, an offense that can carry a 20-year sentence. Dozens of surrogates have been arrested, accused of trafficking the babies they birthed.
In a poor country long used as a playground by foreign predators — pedophiles, sex tourists, factory bosses, antique smugglers and, yes, human traffickers — the Cambodian authorities said they were on the lookout for exploitation.
“Surrogacy means women are willing to sell babies and that counts as trafficking,” said Chou Bun Eng, a secretary of state at the ministry of interior and vice chair of the national countertrafficking committee. “We do not want Cambodia to be known as a place that produces babies to buy.”
But applying a human trafficking law to surrogacy has imposed the heaviest costs on the surrogates themselves. Nearly all of those arrested in the 2018 raid gave birth while imprisoned in a military hospital, some chained to their beds. They, along with several surrogacy agency employees, were convicted of trafficking the babies.
Their sentencings, two years later, came with a condition: In exchange for suspended prison terms, the surrogates would have to raise the children themselves. If the women secretly tried to deliver the children to the intended parents, the judge warned, they would be sent to prison for many years.
This means that women whose financial precarity led them to surrogacy are now struggling with one more mouth to feed. The intended parents are separated from their flesh and blood. And surrogacy, a well-regulated practice in places like the United States, Georgia and Ukraine, has been relegated to the shadows in Cambodia.
From behind the bars of a courthouse in Phnom Penh, Xu Wenjun, the intended father of the boy to whom Ms. Hun Daneth gave birth, spoke quickly, his words tumbling out before the police intervened. He has been in prison for three years.
“My son must be big by now,” said Mr. Xu, dressed in an orange prison jumpsuit. “Do you think he remembers me?”
‘Where did he come from?’
Amid a cloud of mosquitoes, near a pile of garbage sodden from recent rains, a boy ran up to Ms. Hun Daneth, still in her factory uniform. She scooped up her son and sniffed his cheek, a sign of affection in parts of Southeast Asia.
Ms. Hun Daneth, now 25, decided to become a surrogate for the same reason as the others: debt, lots of it.
Over the past few years, Cambodian households have become some of the most indebted on earth, victims of a microfinance crisis. Once touted as a transformational tool for lifting families out of poverty, microfinance has in some countries, Cambodia included, devolved into a predatory scheme trapping millions in cycles of dependency.
Local banks compete to offer microfinance loans that can balloon fast. Ms. Hun Daneth said her family took out multiple loans, some just to service interest payments that exceeded 10 percent a month.
“At first it was a few hundred dollars,” Ms. Hun Daneth said, of her family’s burden. “Then it was thousands of dollars.”
Like nearly a million other Cambodians, mostly women, she had left the countryside to stitch together T-shirts and bras, gym bags and sweatshirts in factories. But a couple hundred dollars a month doesn’t go far in the cities.
A scout at the garment factory where Ms. Hun Daneth worked told her of a way out. She could earn $9,000 — about five times her annual base salary — by acting as a surrogate.
She knew of villages outside Phnom Penh where imposing concrete houses, said to have been built from surrogacy payments, loomed over bamboo shacks.
“They paid off their debts,” Ms. Hun Daneth said. “Their lives could start like new.”
The scout was connected to an agency managed locally by a Chinese man and his Cambodian wife. Her sister ran luxury villas where the surrogates stayed.
Eight surrogates who spoke to The New York Times described chandeliers, air conditioning and flush toilets in the villas, none of which they enjoyed at home. Their meals were plentiful. The women dreamed about the money they would earn. They also thrilled at the notion that they were providing a desperately needed service.
“I was helping give someone a baby,” Ms. Hun Daneth said. “I wanted to give that joy.”
Mr. Xu, a prosperous businessman from the southern Chinese city of Shenzhen, was matched with Ms. Hun Daneth. The one thing he was missing, he told friends who spoke to The Times, was a son to continue the family line.
Most of the Chinese babies carried by Cambodian surrogates are boys. Sex selection is banned in China, but not in Cambodia. Commercial surrogacy is not openly practiced in China, despite official concern about the country’s plummeting birthrate after decades of a brutally enforced one-child policy.
In Cambodian court testimony, Mr. Xu said his wife could not bear a child. But Mr. Xu’s friends, who spoke on the condition of anonymity for fear of antagonizing the Cambodian authorities, said that his situation was more complicated: He had no wife and was open about being gay. Ms. Hun Daneth said Mr. Xu told her about his sexuality. L.G.B.T.Q. couples cannot adopt in China, and gay or single individuals are precluded from surrogacy in most countries where that practice is legal.
Perfect Fertility Center, or P.F.C., a surrogacy agency registered in the British Virgin Islands, showed rare sympathy for L.G.B.T.Q. intended parents, promising babies via Cambodia, Mexico and the United States. The company’s website is illustrated with photos of same-sex couples cradling babies.
P.F.C. was founded by Tony Yu, who turned to Cambodian surrogates for his own children. Mr. Yu, who is openly gay, said Cambodian lawyers assured him that his agency was legal.
It was a multinational operation that spanned continents. Mr. Yu partnered with a fertility clinic in Phnom Penh run by a Vietnamese person. There, a German fertility specialist trained Cambodian doctors. An Indian logistics expert flew in with eggs harvested from donors.
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In 2017, Mr. Xu signed a contract with P.F.C., agreeing to pay $75,000 for surrogacy in Cambodia, according to documents reviewed by The New York Times.
Mr. Xu visited Ms. Hun Daneth at the luxury villa. He told her that the egg donor was a Russian model, and he later showed Ms. Hun Daneth and her husband photographs of a white woman with wavy hair standing next to a sports car.
Mr. Yu, the agency founder, said that many of its egg donors came from Russia, Ukraine and South Africa. The intended fathers were Chinese, and many were gay.
“Mixed-race children are popular with our clients,” said Mr. Yu.
For the Cambodian surrogates, being forced to raise children from other ethnicities can create additional strains in their families and their communities. The children’s features make it hard to explain their origins.
“People wonder, ‘Why does he have brown hair? Where did he come from?’” said Vin Win, 22, another surrogate who was arrested with Ms. Hun Daneth.
Ms. Vin Win’s husband resents the child she bore, she said. They have separated. She hopes the boy will get more than the third-grade education she received.
“I look at my son, and I feel pity because I think he should be living in a nice place,” Ms. Vin Win said. “This is not his real home.”
The police swarmed past the compound’s marble arches and burst into the two villas, handcuffing pregnant women who had been dozing on their pink-framed beds or lounging on sofas playing Candy Crush.
The police operation in July 2018 followed a regionwide crackdown on commercial surrogacy. Three years before, Thailand had banned the practice for foreigners, shutting down a cheaper alternative to surrogacy in the West, which can cost more than $150,000.
Two cases spooked the Thai authorities. One involved an Australian couple accused of refusing a baby boy with Down syndrome. A judge in Australia later found that the couple had not abandoned the child; the boy remained in Thailand, with the surrogate.
The other case raised concerns about baby trafficking after a Japanese man fathered at least 16 children by Thai surrogates. A Thai court eventually granted the man custody over most of the children after he said that he wanted a large family.
India and Nepal also limited surrogacy for noncitizens. In many of these cases, politicians spoke of the sanctity of the maternal bond and the purity of Asian women.
With options narrowing, Cambodia beckoned. Fertility clinics in Thailand moved across the border. Intended parents arrived from Australia, the United States and, most of all, China.
Ten Cambodian women who spoke to The Times, including the eight who were arrested in 2018, said surrogacy was their choice.
As the surrogacy business blossomed, a senior official from the ruling party questioned whether foreigners should be paying for access to Cambodian women.
With its compromised courts and pliant legal system, Cambodia has been plagued with exploitation, by foreigners and by its own citizens. The government of Hun Sen, the world’s longest-serving prime minister and a former functionary for the murderous Khmer Rouge, has been tied to systemic corruption and the erasure of human rights.
Late in 2016, the Cambodian Ministry of Health announced the ban on surrogacy, but did so without adopting new legislation making it a crime. In the resulting gray space, fertility clinics and surrogacy agencies continued to open up.
The raids began the next year. An Australian nurse and two Cambodian staff members at a fertility clinic that worked with surrogates were convicted of human trafficking.
Mr. Yu, who was not in Cambodia when the police raided the villas, said he’d had no idea that his agency was breaking any law. Lotus Fertility, one of the clinics the agency relied on to perform in vitro fertilization for surrogates, operated out of Central Hospital, a private facility with a strong political pedigree. The hospital’s director and deputy director are the daughter-in-law and son of Dr. Mam Bunheng, Cambodia’s health minister. The hospital has not responded to requests for comment.
“I wanted to do everything legally and openly,” Mr. Yu said. “With the fertility clinic, everyone said, ‘Everything is safe, everything is comfortable, they have a good background,’ so I believed them.”
“But then disaster happened,” he added.
Ms. Hun Daneth said she’d had a sense that she wasn’t supposed to talk too openly about what she was doing. Four other surrogates said they were warned by agency staff not to stroll outside the villa complex.
In documents for Mr. Xu’s payment to P.F.C.’s bank account, an addendum cautions: “Do not note surrogacy-related words when transferring money.”
A Cambodian employee of Lotus Fertility, who agreed to speak only if her name was not used, said that the clinic filed documentation stating that all the in vitro fertilizations were for prospective Cambodian mothers, even though it was clear many of the women were surrogates.
Lotus Fertility has closed. A representative for the clinic blamed the coronavirus for the closure.
In testimony this spring before the United Nations-linked Committee on the Rights of the Child, Ms. Chou Bun Eng, the government official, dodged questions about the children born of imprisoned surrogates.
“The committee does not take a position on whether surrogacy is wrong or right,” said Ann Skelton, a children’s rights lawyer and member of the committee. “But we are concerned about a situation that does not uphold the rights of the women, the intended parents and, of course, the children.”
‘Our babies are the crime’
Chained to a military hospital bed in August 2018, Ms. Hun Daneth delivered a baby with soft brown hair, a pale complexion and the same wide eyes as his intended father.
Another surrogate, Phay Sopha, gave birth sprawled on the cement floor of the military hospital, no midwife in sight.
“The baby came out, and I thought, ‘It looks Chinese,’” Ms. Phay Sopha said. “Then I passed out.”
After Mr. Yu, by his account, paid the police nearly $150,000, the surrogates were released. In total, Mr. Yu said he spent more than $740,000 trying to fix the situation, money paid in cash to intermediaries or to anonymous bank accounts.
A spokesman for the Cambodian National Police, Chhay Kimkhoeun, questioned Mr. Yu’s claim.
“First, is there any evidence of what is said?” he said. “Second, if there is factual evidence, they can file a complaint.”
Ms. Phay Sopha now works at a garment factory, from 6:30 in the morning to 8 at night. She rents a boardinghouse room barely long enough to fit her outstretched body. The child, she said, is back in her village, being raised by her mother.
The government ordered a Christian charity, founded by Americans to combat child sex trafficking, to check up on the women after they gave birth, officials said. Some surrogates said they also had to report to the police station, children in tow.
“It was like we were criminals,” said Ry Ly, another surrogate. “Our babies are the crime.”
Most of the women are struggling financially. Soeun Pheap, aunt to Chan Nak, a surrogate who gave birth to twins, said her niece fed the babies water thickened with a squirt of condensed milk. After living for a while with her aunt, Ms. Chan Nak left abruptly with the babies. She sent another surrogate a message saying she was out of the country and would be returning without the twins.
Despite the surrogates’ promises to the court that they would raise the babies, a good number of the children are no longer in Cambodia and have been united with their Chinese parents, Mr. Yu said.
Mr. Xu, the Chinese businessman now in jail, went to Cambodia to try to extricate his child. He contacted Ms. Hun Daneth directly, even though the agency had warned him to keep a low profile. He bought toys and diapers for the boy, whom he called Yeheng in Mandarin, a name alluding to karmic perseverance.
Mr. Xu submitted a paternity test to the Chinese Embassy in Phnom Penh. In 2019, he secured a passport for the boy.
A worker from the Christian charity accompanied Mr. Xu to the police station to finish up paperwork. The founder of the surrogacy agency warned Mr. Xu that it was a setup by the police. Officers were waiting. He has been imprisoned ever since.
Representatives for the charity, Agape International Missions, would not comment on Mr. Xu’s arrest.
In 2020, Mr. Xu was convicted of human trafficking and sentenced to 15 years in prison. In June, his appeal was denied.
“Are they serious that he is trafficking his own child?” said May Vannady, Mr. Xu’s lawyer, waving a notarized copy of the paternity test.
Mr. May Vannady says they will take their appeal to the Supreme Court. Ms. Chou Bun Eng, the government official, said that the conviction should stand. She suggested that Chinese gangs wanted to harvest organs from children born of Cambodian surrogates.
This spring, Ms. Hun Daneth took a day off work and rode a motorized rickshaw to the appeals court in Phnom Penh. Mr. Xu didn’t mean any harm, she told the judge. He only wanted a son. He was not a baby trafficker.
Still, she told the court, she had grown attached to the boy. After the hearing, Ms. Hun Daneth said she had decided to move back to the countryside because she did not want anyone to kidnap her son. She didn’t like it when Chinese-speaking people showed up at her home.
“No one will take him from me,” she said. “He is mine.”
Kann Vicheika and Sun Narin contributed reporting from Phnom Penh, Cambodia. Claire Fu contributed research from Beijing.