New Draft Law to Regulate Surrogacy in Thailand
by Melanie Adams
Thailand’s reputation as a place where surrogate mothers can be found is growing. Surrogate Thai mothers are well regarded for their healthy lifestyle and, combined with Thailand’s first class hospital services, it is not hard to see why using surrogates has become popular among both Thais and foreign nationals.
Surrogacy Law in Thailand
Until recently, there were no laws governing surrogacy arrangements in Thailand, either in terms of prohibiting the practice or allowing it. In recognition of the legal minefield that can arise in these difficult situations, the Cabinet has now approved draft legislation for children born through the use of Assisted Reproductive Technologies (ART), including surrogacy. The draft surrogacy law covers two types of surrogacy: 1) where a married couple uses their own egg and sperm but the child is carried by someone else; and 2) where a surrogate mother provides an egg and carries the child but the fertilising sperm comes from either a donor or the commissioning parent.
The draft Thai surrogacy law makes significant changes. Under Thai law to date, the birth mother is recognised as the mother of that child. Since surrogates are usually married, a child born as a result of surrogacy will be registered as the child of the surrogate mother and her husband. Hence, under current Thai law, the commissioning parents have no automatic legal rights. It is crucial therefore that both the birth mother and her husband actively renounce their rights to the child.
Thailand Surrogacy Disputes
While a surrogacy arrangement will usually be set out in a contract, or other document, between the surrogate mother and the commissioning parents, the legal status of the contract is ambiguous and little could be done in the event that either side failed to follow through with their obligations.
In an attempt to reduce such problems, the draft surrogacy law provides that the Juvenile and Family Court will be given authority for judging paternity and a committee will be established with the authority to protect the children born as a result of surrogacy. This provision clearly goes some way to redressing the legal issues surrounding the parental rights of the commissioning parents as well as defending the children which lie at the heart of surrogacy disputes.
Rights of the Thai Surrogate Mother
The draft surrogacy law does not however, relate solely to the children born as a result of surrogacy but also sets out some protection for the Thai surrogate mother herself. The new surrogacy law gives the Medical Council the right to set out the requirements and financial conditions for the care of the surrogate mother before and during all stages of the pregnancy.
The draft also gives details about egg and sperm donation and storage and, more generally, about assisted reproduction. The draft law states that the surrogate mother must be married and that her husband must also give consent to the surrogacy process, especially the use of sperm from other man. This is clearly important in reducing the likelihood that the surrogate and her family will claim any rights over the child when it is born.
Using Thai Surrogate Mothers
The draft Thai surrogacy law is an important step in regulating this process and provides reassurance for those seeking a surrogate in Thailand. However, those looking to use Thailand surrogates should still employ prudence when doing so. Significant legal issues can still arise – not least in respect of taking the surrogate child out of Thailand, if the commissioning parents are from overseas.
Thai law must also be considered since in some circumstances, in order to obtain parental rights, the commissioning parents will need to go through an adoption process, which will inevitably involve interaction with the Thai authorities. Prospective parents are well advised to seek legal advice from an experienced Thai surrogacy lawyer before entering into any surrogacy arrangements, to ensure that their rights and those of the child are adequately protected; this should include finding out about the process by which the child can be properly and legally recognised as the offspring of the commissioning parents.
The fact that the Cabinet has passed this draft legislation serves as its recognition of surrogacy in Thailand and of the issues surrounding it. It also suggests that surrogacy and IVF will continue to grow in popularity in Thailand. It is expected that further details will be announced by the Medical Council in order to more comprehensively specify the regulations that will apply to Thailand surrogacy.
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