Six things the talk shows did not tell you

On 4 February, the talk show Hone Krasae ran an episode titled “Human traffickers!!! Thai women tricked by a Chinese gang into surrogacy in Georgia, their eggs harvested for sale, their organs the real target.” Two specialist doctors were invited on to explain the medicine. I was genuinely pleased at first — here were two senior colleagues who could finally clear things up and cut through the public's misunderstandings, because the news coverage of these topics tends to be a sloppy, novelistic, frankly delusional mess.

I was disappointed all over again. I watched to the end and the correct information never arrived; worse, the wrong information was reinforced, carried along by the drama of the case. So let me set out the following five points that were simply not right.

1. No one does IVF in order to kill the resulting child for its organs — or to send it out begging

Donor organs — usually recovered by surgery from someone who has just died — really are scarce, and the queue of patients waiting is far longer than the supply. But doing IVF through a surrogate, then raising that child until its organs are large enough and work well enough to be put into someone else? In theory, yes. In practice I think the odds are vanishingly small, and here is why.

The cost

Add it all up: the IVF cycle, the surrogate's costs, genetic testing of the embryos to find one that matches the patient, antenatal care, the delivery, raising the child until the organs are big enough to transplant (at least eighteen years?), the transplant surgery itself, and so on. And the begging theory? You would be investing millions. Would that ever pay?

The time it takes

As I just said — by the time the child has grown enough for its organs to be usable, the disease of the patient waiting for that organ will almost certainly not have waited too.

The odds that an embryo is a genetic match

A transplant normally requires HLA matching between donor and recipient, to reduce the chance that the recipient's body rejects the organ. An embryo created for this purpose has only a 25% theoretical chance of matching the recipient (where the recipient is a parent or a full sibling). In practice, the research shows that only 16% of embryos turn out to be a match, and only 30% of those embryos go on to a live birth (1). So organs obtained this way would very often be useless — nobody would invest in that. The fear of children's organs being sold on the black market is, frankly, a fantasy.

What is possible is having another baby so that the new child can donate bone marrow to an older sibling. Nobody is killed. That child is raised by its own parents. A marrow donation means aspirating a small amount of marrow — not especially painful, and no organ is removed.

As for the women in the news — taken abroad to have their eggs retrieved, with nobody caring what they looked like — my guess is that embryos may have been created in order to obtain stem cells for treatment.

2. Malum in se vs. malum prohibitum

Here I think the host does not realise that wrongs in law come in two different kinds.

Malum in se — wrong in itself

An act that carries its own evil — murder, theft, and the like.

Malum prohibitum — wrong because it is prohibited

An act that is not evil in itself, but which a particular country or society has agreed among themselves not to do — for public order, for public safety, to protect people. Selling cigarettes singly, for example, carries a fine of up to 40,000 baht under Thailand's Tobacco Products Control Act B.E. 2560 (2017).

Surrogacy, then, is malum prohibitum. Under Thailand's Protection of Children Born by Assisted Reproductive Technologies Act B.E. 2558 (2015) it can be done perfectly legally, provided certain conditions are met. And in plenty of countries even commercial surrogacy is not an offence at all — for instance:

• United States
• Georgia
• Ukraine
• Russia
• Greece
• Cyprus
• Mexico
• Colombia
• Kazakhstan
• Nigeria
• Ghana

Georgia — the country these Thai women were sent to — is one of them.

3. Surrogacy is not a crime

Surrogacy, as a process, is not a crime. One woman consents to carry a pregnancy for someone with infertility who cannot carry one herself because of a medical problem, such as:

• Being born without a uterus
• Fibroids so extensive that surgery is not an option
• Conditions that would make carrying a pregnancy dangerous for the mother
• Repeated embryo transfers that have failed to result in pregnancy

In Thai we call it um bun — carrying merit — because, seen through a Buddhist lens, carrying that pregnancy earns merit. We do have a law governing it, to stop anyone exploiting the arrangement, and in some cases surrogacy can indeed open a door to trafficking. But that is not what ordinary medical surrogacy looks like.

4. Commercial donation and surrogacy are not human trafficking

Selling eggs, or carrying a pregnancy for a fee, is not automatically human trafficking, and on this I have to disagree. Under the UN's own definition, trafficking requires three elements to be present.

Commercial gamete donation — yes, frankly commercial — and commercial surrogacy do carry a risk of turning into trafficking. But look at how it actually worked in Thailand before the Protection Act came into force: in terms of the act and the means, nobody was transported anywhere and hidden, nobody was deceived or threatened. There may have been cases where surrogates were housed together in one place — and those are exactly the situations we could bring under legal control in order to protect these women.

The UN document does count “the removal of organs” as one form of exploitation. But an egg retrieval removes no organ at all: it only aspirates cells out of the body, and that is not covered here.

On top of that, commercial gamete donation is entirely lawful in a number of countries, for example:

• Barbados
• Czech Republic
• Russia
• Spain
• United States

And commercial surrogacy arrangements are permitted in several of the countries listed earlier. If these treatments really were human trafficking, those countries would long since be at the top of the trafficking league tables (2).

But once the Protection Act came in, with penalties and prison terms for offenders — especially in surrogacy cases — the whole trade had to slip underground: across the border to neighbouring countries, or luring women abroad, exactly like the case featured on this programme. That is what finally assembled all three elements of trafficking. And nobody knows whether the treatment was even carried out by a specialist. In the end the law protected no child and no one else, whatever its stated intent, because underground treatment has no standard of care behind it: nobody follows up the donors or the surrogates, and the harms and complications land on ordinary people, with no protection from the law at all.

5. A child born through a surrogacy arrangement belongs to the intended parents

A baby born to a surrogate is the child of the people whose gametes created it — both in principle and under the Protection of Children Act, even if this story pre-dates the Act coming into force. Refusing to return the child is not a decision for a middleman to make. If the surrogate will not hand the baby back, the intended parents have to take it to court.

But let me put it simply. Surrogacy is like leaving something precious in someone's care and paying them to look after it. When the owner comes back for it, you decide it is rather lovely, you would like to keep it for yourself, and you refuse to give it back. To my mind that is plain fraud and theft.

As for the bone marrow — that is in fact one of the accepted indications for genetic testing of embryos. The go-between here clearly came in already biased, and so ended up helping a thief steal. Sigh. If you do not know something, go and learn it. Some things you do not know only make you look foolish in other people's eyes; but the things you do not know that end up hurting someone else — that, I think, is not okay.

And let us be blunt: a woman who takes on a surrogacy for money is probably not well off, while the people paying for it usually are. If you keep their child and raise it yourself, do you honestly think you can give that child the same chances in life as its own parents could? Do you not feel for the child?

6. Regulated vs prohibited

It is only natural that those holding state power legislate by banning: a ban is easier than regulation, which needs a mass of fiddly rules. And it is just as natural that, so long as people in society still want the thing, they will carry on doing it underground.

So in the end, does banning something actually make it disappear? Judge for yourself. Prostitution, gambling, narcotics — every one of them is banned by law. Do you think Thailand still has them?

The same goes for the Protection of Children Act, which banned a great many things. Nearly ten years on, has it banned what it said it would? The answer is no — it has not worked. At first the clinics simply moved across the border, and it was still Thai women who trooped over for embryo transfers and surrogate pregnancies, and who came home with pregnancy complications for Thailand to manage — right up to the story the programme has now exposed.

To those who took on the job of writing laws for a dictatorship: if you had spent a little time looking at the wider picture — if, instead of banning and punishing, you had set criteria that brought this work above ground, done properly, safely and under supervision — the public would have benefited and you would have been praised for decades. Instead, you are the reason these women were pushed into risking their lives, and the reason a cross-border trafficking trade has been kept in business. Cases like this will keep happening for as long as you refuse to listen to the public, cling to a made-up moral framework, and never look at the whole picture. What a pity that you have long since become a human trafficker without ever noticing.

In short

References

1. De Rycke, M., De Vos, A., Belva, F. et al. Preimplantation genetic testing with HLA matching: from counseling to birth and beyond. J Hum Genet 65, 445–454 (2020). https://doi.org/10.1038/s10038-020-0732-z
2. Davis Jr, E. and A. Pittman (2024). The Worst Countries for Human Trafficking | Best Countries | U.S. News.