Gay couple wins Baby Carmen custody suit against surrogate

Spaniard Manuel Santos gestures in victory after hearing the judgement of the Central Juvenile and Family Court in Bangkok April 26. The court decided that Spanish-American same sex couple, Gordon Lake and Mr Santos, have the rights to leave Thailand with their baby Carmen. (EPA photo)

A same-sex American-Spanish couple on Tuesday won their high-profile custody battle against a surrogate mother who gave birth to their child but then decided she wanted to keep the baby when she found out they were gay.

Bangkok's Juvenile and Family Court ruled that the legal guardian of the child, named Carmen, is the girl's American biological father, Gordon Lake, said Mr Lake's attorney Rachapol Sirikulchit.

"The court has granted legal custody of Carmen Lake to Gordon Lake, my client, and (said) that my client is her only guardian," Mr Rachapol said.

Lake and his partner, Spaniard Manuel Santos, both 41, have been stuck in Thailand since launching their legal battle after Carmen was born in January 2015.

Mr Santos emerged from the court smiling and with tears in his eyes.

"We won," he told reporters. "We are really happy. ... This nightmare is going to end soon."

"After 15 months, Carmen will fly to Spain" where the couple lives, Mr Santos said.

Not home yet

In fact, Mr Rachapol said, the couple would not be able to take Carmen out of the country right away pending the possibility of an appeal by the surrogate mother, Patidta Kusolsang. She was not in court and her intentions could not immediately be learned.

Mr Lake and Mr Santos celebrated their legal victory on the Bringcarmenhome Facebook page set up to support their custody fight.

"There is no way to express with words what we are feeling!" they posted. "We are crying, our family is crying, our friends are crying, and we are sure all the Thai people who showed their love for us during this time are crying too."

"Today is a huge day for love, for family and for truth. And it is also a big day for LGBT rights," said their posting, referring to lesbian, gay, bisexual, and transgender rights.

Their case was complicated by the fact that the law does not recognise same-sex marriages and also by a new law that bans commercial surrogacy, which took effect after baby Carmen's birth.

When Carmen was born, Ms Patidta handed over the baby to Mr Lake and Mr Santos, who left the hospital with the infant. But they say Ms Patidta then changed her mind and refused to sign the documents to allow Carmen to get a passport so they could leave Thailand.

Mr Lake and Mr Santos were told she had thought they were an "ordinary family and that she worried for Carmen's upbringing", according to a message Mr Lake posted on a crowd-funding site that has raised US$36,000 to help cover the costs of the trial and staying in Thailand.

Mr Lake has said he doesn't know why the surrogate says she didn't know he was gay. He says he was clear about that from the start with their surrogacy agency, called New Life, which has branches in several countries.

The Bangkok-based New Life office has closed since commercial surrogacy was outlawed in July 2015, following several high-profile scandals. There was a grace period provided for parents whose babies were already on the way, and Mr Lake had hoped the judge would be sympathetic to them, which he was.